Complainant

Respondent

Parties

Diane  O'Mahony

Health Service Executive

Representatives

Alastair Purdy and Co Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00044672-001

17/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00044672-003

17/06/2021

The complainant submits that monies properly payable have not been paid.  The respondent did not attend the hearing.  The complaint CA-00044672-003 was withdrawn.

In 2004, the Complainant commenced employment with the Respondent as a psychologist in training. Since that period the Complainant has had a series of unbroken contracts of employment at various psychology grades with the Respondent.  In June 2017, the Complainant entered into a three-year job-sharing contract which did not override her contract of indefinite duration (CID). The complainant did this knowing she would revert to her full time CID at the end of the 3-year job sharing contract.  This was supported by Clause 12 of the Job-Sharing Contract which provides that:

“Serving staff who opt for job-sharing will have an opportunity of returning to full-time employment subject to (a) the occurrence of suitable vacancy, not necessarily in their former post and (b) their having worked on a job-sharing basis for a period of not less than three years”.

There is no Entire Agreement Clause declaring the Job-Sharing Contract as overriding or superseding any previous terms of employment held by the Complainant, particularly that of the CID.  As a result of entering into the Job-Sharing Contract the remuneration was on 50% of the scale she was under for her CID. The hours of work were also to be divided equally between the Complainant and a fellow colleague.  Around May 2019 (2 years into the job-sharing arrangement), the Complainant was notified by Ms. A (Line Manager) that the job-sharing partner was granted permission to leave the team and the Complainant was informed by Ms. A that there was no intention to fill the vacancy of the job-sharing partner.  As a consequence, the Complainant was left in a job-sharing arrangement with no partner thereafter. This resulted in significant unmet clinical need in the service, which led to increased pressure and responsibility on the Complainant. In effect, the Complainant was no longer job sharing. 

In March 2020, the Complainant looked to increase her hours on a temporary basis so as to meet the actual needs of the role within the service (which had been exacerbated by COVID-19). Ms. A communicated to the Complainant verbally that she supported an increase in her hours and requested she complete the relevant form. The Complainant completed this form on 24th March 2020 and submitted same to Ms. A. On the form, the Complainant requested that she recommence full time hours on the 30th March 2020. However, the Complainant did not receive approval for her application from Ms A. The Job-Sharing Contract was due to expire in June 2020, and there was no sign of the job sharing partner returning. In light of these facts, on the 12th May 2020 the Complainant wrote to her manager and updated the request to return to full time hours on a permanent basis as the job sharing contract was expiring the following month.

For the next two years the complainant sought updates on the status of the application on a regular basis, and each time Ms A provided reasons for not increasing the hours and pay such as she had no update (3/6/20), Ms A was using the wrong contact number (17/6/20), Ms A was awaiting a response (18/8/2020).

As the months progressed, the Complainant continued to canvas for a return to her full-time hours of work. Critically the Complainant was due to commence maternity leave in March 2021 and sought on no less five occasions clarity as to restoration of her hours as same would have a consequential effect on (1) clarity as to the hours of her contract going on and coming back from maternity leave, and (2) her maternity pay, in that her maternity pay was reflective of the rate she was paid at the time. On the 21st April 2021, four weeks after giving birth, with still no clarity about her position, the Complainant emailed Ms. A requesting an update on the restoration of her hours. The Complainant noted that she had heard a number of posts that had received approval for the psychology department, including a 6-month contract for her own position.  Whilst the Complainant received a reply on the 27th April 2021, there remained no update in respect of the restoration of her hours. 

On the 23rd June 2021, on behalf of the Complainant, the complainant’s solicitor wrote to Ms A and the HR manager regarding the reduction in pay and that it was causing undue stress particularly given that the complainant’s employment status was unknown for the complainant’s eventual return from maternity leave. No response was received to such correspondence. Following a significant period without significant updates or material progression, the Complainant felt she was left with no alternative but to refer the matter to the Workplace Relations Commission.

The Complainant contends that she was subject to unlawful deduction in her wages wherein the Complainant was paid a remuneration rate 50% less than the scale rate provided for under her CID. As set out above, the Complainant, following the expiry of her Job-Sharing Contract, returned to her CID on an implied basis. As such, the Complainant should have had her original pay scale reinstated, as was her understanding when entering into the Job-Sharing Contract. The Complainant submits that the failure to pay that amount constitutes an unlawful deduction in her wages and same should be paid accordingly.

The complainant’s evidence was that it was her understanding that she would job share for a period as per the job-sharing contract and return to a full-time role.  When her job-sharing partner left in May 2019 she was not replaced.  The complainant advised the respondent that it was evident from the contract that a return to full time working was automatic and did not require any further approval.  It was the complainant’s understanding that Ms A was supportive of the complainant returning to full time work.  The complainant was, therefore, surprised to hear from HR that there was nothing stopping the complainant’s return to work and it just needed the managers to sign the relevant forms.  The manager continued to fail to sign the relevant forms. The complainant outlined that it has been a very difficult process for her and that she kept waiting and waiting for the return to full time pay to be processed and she does not know the reason why the manager has failed to complete what needs to be completed.   During the hearing the complainant reviewed her payslips and submitted that during the cognisable period of 6 months, the outstanding monies owed is €23,542.71 gross from the period 18 December 2020 – 17 June 2021.  The complainant also said she was looking for an extension of the 6-month cognisable period on the basis that she regularly requested her manager to return her to full time hours but her manager failed to do so and this amounted to exceptional reasons.

Case law cited included Power v HSE.

The respondent did not attend.

The respondent was put on notice of the hearing dated 7th July 2022.  The respondent requested an adjournment on 3rd August 2022 owing to “to the need to take leave to look after her grandson due to unforeseen circumstances”.  The complainant representative objected to the adjournment and the respondent was advised on 8th August 2022 that her request for adjournment was denied and it was noted that there was no supporting documentation attached to her request for adjournment and was advised of the appeals process.  The respondent appealed this on 10th August 2021 by email at 14:38 as and advised they “remain unavailable”andonce again failed to provide supporting documentation.  On 10th August 2022 at 15:48 the respondent advised she remained “unable to attend this Friday due to leave commitments in addition to other exceptional personal circumstances” and once again did not provide any supporting relevant documentation.

The respondent was advised the hearing would go ahead and that the respondent should submit their appeal with supporting documentation to the Adjudication Officer for consideration on the date of the hearing.  Nothing further was received by the respondent and the respondent did not attend.

The complainant submits that there are monies owing to her and that such monies are properly payable to her owing to her manager’s failure to reinstate her to her full-time salary following the ending of the job-sharing contract.  The respondent did not attend the hearing and I am satisfied that the respondent was on proper notice of the hearing and could have appointed someone else from the respondent to attend on her behalf and did not do so and failed to attend.

Section 1 of the Act defines

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

Section 4 provides for

Statements of wages and deductions from wages.

4.—(1) An employer shall give or cause to be given to an employee a statement in writing specifying clearly the gross amount of the wages payable to the employee and the nature and amount of any deduction therefrom and the employer shall take such reasonable steps as are necessary to ensure that both the matter to which the statement relates and the statement are treated confidentially by the employer and his agents and by any other employees.

(2) A statement under this section shall be given to the employee concerned—

(a) if the relevant payment is made by a mode specified in section 2 (1) (f), as soon as may be thereafter,

(b) if the payment is made by a mode of payment specified in regulations under section 2 (1) (h), at such time as may be specified in the regulations,

(c) if the payment is made by any other mode of payment, at the time of the payment.

(3) Where a statement under this section contains an error or omission, the statement shall be regarded as complying with the provisions of this section if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith.

Section 5 sets out for regulation of certain deductions made and payments received by employers.

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

Under Section (6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

For a breach of the Act to occur, the wages, therefore, must be properly payable within the cognisable period.  The cognisable period for the claim is from 18 December 2020 to 17 June 2021.  The complainant submitted for an extension of this period owing to her attempts to engage with the respondent on the matter.

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015, provides as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

 I note that the complainant did engage with her manager on numerous occasions and it would appear the complainant expected the matter to be resolved by her manager on each occasion which might explain the delay in her submission of the complaint.  However, it does not excuse why the complainant did not submit her complaint earlier.  I am not satisfied that the complainant’s failure to present the complaint or refer the dispute earlier was due to reasonable cause.  I find that the cognisable relevant period for this complaint is between 18 December 2020 to 17 June 2021.

“Wages” has been defined in Section 1 of the Payment of Wages Act and in Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217), the Employment Appeals Tribunal took the word “payable” to mean “properly payable”.   Remuneration “properly payable” was also set out by Finnegan P. in Dunnes Stores (Cornelscourt) Ltd v Lacey [2007] 1 I.R. 478 and in MacGrath J. in Balans v Tesco Ireland Ltd [2020] E.L.R 125. In Sullivan v Department of Education PW 2/1997 (reported at [1998] E.L.R. 217) the Employment Appeals Tribunal held that,

“if an employee does not receive what is properly payable to him or her from the outset then this can amount to a deduction within the meaning of the 1991 Act”.

The complainant commenced a 3-year job sharing contract in 2017 and her job-sharing partner ceased job sharing in May 2019, earlier than expected; and no other person continued to job share with the complainant thereafter.  I have reviewed the complainant’s 2015 contract of employment regarding her CID and the 3-year job sharing contract dated 1st July 2017 – 30th June 2020.  I note the clause at Section 12 regarding returning to full time employment and that employees “will have an opportunity of returning to full-time employment”.  It would appear this is conditional on a “suitable vacancy” and working “on a job-sharing basis for a period of not less than three years”.  The complainant satisfied these conditions and as was advised by her manager there was a full-time role available and the complainant had worked job sharing for a period of not less than 3 years.  Furthermore, HR advised also advised the complainant that all was in order. 

It would appear, therefore, that the only reason the complainant did not receive her full-time salary was owing to the failures, for whatever reason, by the manager, to process the payment. Based on all the evidence and submissions and noting the respondent did not attend, I must find in favour of the complainant and find that her complaint is well founded and find that the monies properly payable to her during the cognisable period, 18th December 2020 – 17th June 2021, are €23,542.71 gross as per the complainant’s pay slips.

This complaint was withdrawn.

CA-00044672-001

Based on all the evidence and submissions, I find in favour of the complainant and find that her complaint is well founded and that the monies properly payable to her during the cognisable period, 18th December 2020 – 17th June 2021, are €23,542.71 gross

Payment of wages,