ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045667
Parties:
| Complainant | Respondent |
Parties | Miss Michelle Mangan | St Vincent's Hospital |
Representatives |
| Ms. Cáit Lynch, Ibec. |
Complaint:
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-00055359-001 | 02/03/2023 |
Date of Adjudication Hearing: 24/10/2023
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Procedure:
In accordance with section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the Parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Miss Michelle Mangan (the “Complainant”) attended the Hearing in person. Ms. Martha Farrelly attended by way of support to the Complainant.
Mr. Robert Kapiszka, Human Resources, St Vincent’s Hospital, attended on behalf of St. Vincent’s Hospital (the “Respondent”). Ms. Cáit Lynch of Ibec represented the Respondent. Ms. Emma O’Brien of Ibec, attended in an observational capacity.
The Hearing was held in public. The Complainant provided evidence on oath and cross-examination was allowed. The legal perils of committing perjury were explained.
At the Hearing, the Complainant provided an email sent to her by the Respondent, dated 10 January 2023.
Background:
The Complainant has worked for the Respondent in a clerical role since October 2002. In December 2022, the Complainant was informed that she was not in receipt of her correct salary. In early January 2023, the Complainant was paid two years of back pay for the miscalculated hours. The Complainant is seeking her outstanding back pay for the miscalculated hours from January 2009 to November 2020, amounting to approximately €27,833. The Complainant submitted her Complaint Form to the WRC on 2 March 2023. |
Summary of Complainant’s Case:
The Complainant submitted that she has worked for the Respondent in a clerical role since October 2002. She is currently working 35 hours per week and earns €1,450.76 gross per fortnight. In December 2022, the Complainant was informed by the Respondent that she was not on the correct salary for her position. The Complainant was informed that since January 2009, her salary was calculated on the basis of a 39-hour working week, when it should have been calculated on the basis of a 35-hour or a 37-hour working week. The Complainant outlined that the Respondent provided her with two years of back pay for the miscalculated hours in early January 2023. The Complainant stated that she is seeking her outstanding back pay for the miscalculated hours from January 2009 to November 2020. The Complainant submitted that she was at work on 9 December 2022, when she was called into the office by Human Resources and told of the error. She then sought further information concerning the error. She also sought advice from her union. The Complainant submitted that there were other members of staff affected by this error. The Complainant submitted a breakdown of her hours and outlined that the fact that she had worked those hours was not in dispute. The Complainant submitted that she has worked for the Respondent for 21 years and that she has given countless hours from her personal time. She further submitted that she feels “extremely undervalued” and “very wrong done by”. Under cross-examination, the Complainant was referred to the contract which she signed in 2009. In particular, the Complainant was referred to the section headed “Hours of Work”, where it states that she has a 39-hour working week. The Respondent put it to the Complainant that she was paid in accordance with her contract. The Complainant accepted that she had not noticed any discrepancies in her pay. The Complainant stated that she had trusted Human Resources. |
Summary of Respondent’s Case:
The Respondent is a public voluntary psychiatric hospital based in Fairview, Dublin. The Respondent outlined that the Complainant was paid in accordance with her contract dated January 2009 which was based on a 39-hour working week. The Respondent outlined that in November 2022, it became aware through the reversal of the Haddington Road Agreement, that the HSE pay scales for Clerical Officers were calculated on the basis of a 37-hour working week from 2012 to 2022; and a 35-hour working week prior to 2012 and post-July 2022. The Respondent outlined that “[i]n recognition of the discrepancy with HSE pay scales”, the Respondent met with the Complainant and explained that as a gesture of goodwill, the Respondent would pay the Complainant two years of back pay for the miscalculated hours, which came to €4,000 gross. The Respondent outlined that, in the first instance, the Complainant’s complaint is outside of the cognisible period. The Complainant received two years of back pay for the miscalculated hours from December 2020 until December 2022. The Respondent outlined that the Complainant is seeking further back pay for the miscalculated hours from January 2009 to November 2020. The Respondent submitted that this period falls significantly outside of the cognisible period and so the Adjudication Officer does not have jurisdiction to hear this complaint. The Respondent further outlined that, in any event, the Complainant was paid the wages that were properly payable to her. In this regard, the Respondent sought to rely on Marek Balans v. Tesco Ireland Limited [2020] IEHC 55. The Respondent submitted that while “there may have been an administrative error in respect of the HSE pay scales”, the Complainant was always paid her agreed contractual salary. The Respondent submitted that for the purposes of section 5 of the Payment of Wages Act 1991, no deduction was made as the amount which the Complainant is seeking was not properly payable to her. |
Findings and Conclusions:
Preliminary Issue – Cognisible Period: The Law: Section 41(6) of the Workplace Relations Act 2015 (the “WRA”) provides: “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.” This six-month time period can be extended, where reasonable cause is demonstrated. To this end, section 41(8) of the WRA provides: “(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.” Findings and Conclusion: The Complainant filed her Complaint Form on 2 March 2023. In accordance with the six-month time limit prescribed under section 41(6) of the WRA, I can consider a complaint from 3 September 2022. Even if reasonable cause were demonstrated, pursuant to section 41(8) of the WRA, I could only consider a complaint from 3 March 2022. This complaint concerns the period from January 2009 to November 2020. As such, it is outside the cognisible period and I cannot entertain it. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint is outside the cognisible period and is not well founded. |
Dated: 3rd November 2023
Workplace Relations Commission Adjudication Officer: Elizabeth Spelman
Key Words:
Payment of Wages Act 1991, Cognisible Period. |