Complainant

Respondent

Parties

Edwin Dordoe

Eurofins Biomnis

Representatives

Self-represented 

Thomas Ryan, Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00057798-001

19/07/2023

The respondent is a medical pathology laboratory which analyses on blood samples for clients.  The complainant is a medical scientist and, on September 27th 2021, he was recruited to work as a locum medical scientist in the respondent’s blood testing laboratory in Sandyford in Dublin, reporting to the operations manager.  He was hired through an employment agency in London, Atlantis Medical Limited.  He was paid an hourly rate of £48 British pounds.  He said that his contract was ended abruptly on May 18th 2023, when the respondent’s contract with Naas General Hospital was terminated.  He said that he should have been given two weeks’ notice, but instead, he was given a few hours’ notice and paid for one week. 

In contravention of s.5(6) of the Payment of Wages Act 1991, the complainant claims that he was not paid €7,248 for hours that he worked in January and February 2023.  The respondent’s position is that the additional hours were not approved.  They also argue that this complaint has been submitted against the wrong respondent, because the responsibility for the complainant’s wages lies with the employment agency.

In his evidence at the hearing, the complainant said that, when he started in the job in Sandyford, he worked from Monday to Friday for 37.5 hours a week.  To complete monthly maintenance tasks, he said that, occasionally, it was necessary to work extra hours.

In August 2022, the complainant said that the chief medical scientist told the laboratory staff that they would have to take on an additional workload.  In the documents he submitted at the hearing, he included an email dated August 24th 2022 from Ms Eimear Cunningham, the chief medical scientist.  Ms Cunningham told the laboratory staff that she was seeking expressions of interest from them to work extended hours and on Saturdays, to accommodate a new contract in Naas General Hospital.  In her email, Ms Cunningham explained the allowances that would be paid for working a late shift and the weekend overtime rate of time plus one half for the first four hours and double time for every additional hour.  The complainant said that he agreed to work one Saturday per month and he did this up to the end of December 2022.  On the form he submitted to the WRC, the complainant said that at a meeting with Ms Cunningham, it was agreed that they would use the Saturday shifts to clear the backlog from the previous week.

The complainant said that he agreed to work from 2.00pm until 10.00pm from Monday to Friday.  At the hearing, he said that, on top of 500 samples per day, they would be required to test between 350 and 500 more samples.  The complainant said that the machines in the laboratory couldn’t handle this workload.  Because the machines were slow, he said that he would have to stay on after 10.00pm because the testing couldn’t be stopped half-way through the process.  By December 2022, the complainant said that he and his colleagues were testing 1,500 samples a day.  Around the end of the year, he said that four people resigned over a period of eight days.   He said that he was happy to work from Monday to Friday, and that he didn’t want to work additional hours, but he wanted to keep the testing process going.  Without any consultation with him, the complainant said that he was rostered for multiple Saturdays in January and February 2023.

The complainant said that he was at work on Saturday, January 16th 2023 and, to complete the testing, he had to work until 4.00am.  A new medical scientist joined on February 1st, but, at that stage, the testing was two days behind.  The complainant said that he was on call on Saturday, February 4th and the chief medical scientist, Ms Cunningham, asked him to come in to work.  He said that, as a last resort, he agreed to come in.  Between 1,500 and 3,000 samples had to be tested and his colleague finished work at 7.00pm to collect her children.  The complainant said that he worked for 19 hours that Saturday.  On Monday, February 6th, which was a public holiday, he worked from 4.30pm until 5.00am.  He said that if the samples had been left until Tuesday, they would have been too old for testing and blood would have to be taken from patients again.  On February 11th, he worked for 21.5 hours.

When he submitted his timesheet to the agency, the complainant wasn’t paid for the additional hours that he worked.  He was informed that Ms Cunningham would not approve the payment.  He sent an email to the HR manager in Eurofins Biomnis, M Helena Mazurkiewicz and he explained to Ms Mazurkiewicz that he had been working extra hours since January and that Ms Cunningham had acknowledged this and had suggested a 4.00pm start instead of 2.00pm, because she was concerned for his wellbeing.  The complainant said that he replied that he would continue to work the hours because new staff would soon be joining.  He also asked about the purchase of a machine to uncap samples, which he said would save a lot of time. 

Regarding his shift on the public holiday on February 6th 2023, the complainant said that Ms Cunningham asked him to work on that day, when his colleague couldn’t cover the shift.  He said that he cancelled his flight to and from London so that he could stay in Dublin and work.

The complainant referred to a meeting with the HR manager, Ms Mazurkiewicz and the chief medical scientist, Ms Cunningham at which she said that he asked if he could stop the machines in the laboratory at midnight.  He said that Ms Cunningham said that the machines should not be stopped, but she complained about the hours he worked.  From Monday, March 16th, he said that he stopped the analyser machines so that he could leave at midnight and he did that until his last day at work on May 18th 2023.  At the HR meeting, the complainant said that Ms Cunningham said that she should have been contacted before he worked the long hours in the evenings.  The complainant said that, as the laboratory manager, she should have known about the number of samples that had to be tested. 

In the documents submitted at the hearing, the complainant included an email from Ms Cunningham at 20.25 on February 13th 2023.  In her email, Ms Cunningham said that she could not approve timesheets with claims for hours worked that had not been approved in advance.  She reminded the complainant that his hours of work were from Monday to Friday from 2.00pm until 10.00pm with occasional eight-hour shifts on Saturdays.  She said that he was only approved for two to three additional hours on the public holiday on February 6th and that this was all he could claim.  Ms Cunningham told the complainant to re-submit his timesheets for the hours he had been rostered which was “something we discussed many times.”

The complainant replied at 3.21am on February 14th.  He said that he was still at work dealing with a specific issue from that day.  He said that from now on, he would finish at 10.00pm.  He complained that he was expected to clear three days of work in four hours and that on Saturday, February 11th, he had to run outstanding samples from the previous two days.  He told Ms Cunningham that he would never “kill myself doing such shifts again.”

The complainant’s position is that he was rostered for work by the chief medical officer and that he remained on at work on the days he was rostered so that he could finish the work.  When he filled in his timesheet and submitted it for payment to the employment agency, the complainant said that he was informed that Ms Cunningham had not approved the pay for his additional hours and he was paid for his rostered hours only.

On the form he submitted to the WRC, the complainant named two of his colleagues who, he said, were not treated in this way and were paid for all the hours that they worked.

The complainant claims that he is owed wages for additional hours as follows:

January 16th 2023:  4 hours @ £72 per hour

February 4th 2023:  4 hours @ £72 per hour plus 15 hours @ £96 per hour

February 6th 2023:  19 hours @ £96 per hour

February 11th 2023:  4 hours @ £72 plus 17.5 hours @ £96

Four days’ notice comprising 30 hours @ £48

Total amount of wages claimed:  £7,248

The respondent terminated the complainant’s contract on May 18th 2023.  In July that year, he was still seeking payment for his additional hours.  In the documents he produced at the hearing, he included a copy of an email dated July 21st 2023, from the payroll officer in the employment agency, Ms Divya Seedhar.  In this email, Ms Seedhar told the complainant that the chief medical scientist, Ms Cunningham, would not approve the timesheets which included the additional hours.

On behalf of the respondent, Mr Ryan sent a submission in advance of the hearing on November 14th 2023.  He included a copy of the terms and conditions agreed between the agency and the respondent concerning the complainant’s appointment in the laboratory in Sandyford in Dublin commencing on September 27th 2021.  Mr Ryan said that the complainant has no contract of employment with the respondent and the respondent did not negotiate terms and condition of employment with the complainant.  Terms and conditions were agreed with the employment agency, Atlantis Medical Limited, in the United Kingdom (“the agency”).  The respondent’s position is that the complainant was not an employee of the respondent, but was directly employed by the employment agency and assigned as a locum to the respondent.  In support of this argument, Mr Ryan referred to the decision of the High Court in Minister for Labour v  PMPA Insurance Company, [1986] JLSLW 215.  In this case, Ms Nulty, a temporary typist hired by PMPA through an employment agency clamed an entitlement to holiday pay.  Mr Justice Barron held that Ms Nulty contract was enforceable solely under her agreement with the agency and that she had no contract with PMPA.

Mr Ryan referred to the agreed notice period in the terms and conditions document.  This indicates that the complainant was employed for six months initially, with a provision for two weeks’ notice and that one week’s notice will be given for termination after six months.  The complainant was issued with one week’s notice of the termination of his employment and he was paid for one week in lieu of notice.

In the documents he submitted for the hearing, Mr Ryan included emails to the complainant from Ms Cunningham in October and November 2022 when Ms Cunningham instructed him to work only his rostered hours.  In her email of October 25th 2022, Ms Cunningham wrote:

“I do understand that you are being diligent and I appreciate this, however, I only have approval from management to approve 35 hours per week for each of our locum staff.  I can approve it for this week, as we didn’t get a chance to discuss it before now.”

On November 22nd, Ms Cunningham repeated her request to the complainant, not to submit timesheets for unapproved hours worked.

Ms Cunningham wrote again to the complainant on January 31st 2023 and on February 8th, when she instructed him to leave at 10.00pm.  In this email, the complainant was clearly instructed not to run samples later that evening.  On February 13th, Ms Cunningham wrote to the complainant about timesheets submitted for the two previous weeks in which it appeared that he worked for 82.03 hours and 80 hours respectively.  The complainant replied and said that he had re-submitted a time sheet for one of the weeks because his additional hours were not paid.

On February 14th, Ms Cunningham approved pay for 45.25 hours for the week ending on February 13th.  Again, she asked the complainant to let her know if he needed to work late because she couldn’t approve pay for hours that were not checked with her first.

On March 14th 2023, Ms Cunningham wrote to the payroll department in the agency and said that she was approving certain hours for the complainant for six weeks from January 1st until March 5th 2023.  Ms Cunningham told the payroll officer that the complainant had also submitted inflated hours which she could not approve.  In reply, the payroll officer asked Ms Cunningham to “keep an eye” on the timesheets submitted by the complainant and to apply a rejection process if they were found to be wrong.  Ms Seedhar said that she would also keep an eye on the timesheets to ensure that no claim is for more than 37.5 hours.

From the evidence of the parties at the hearing, it is apparent that the complainant was an employee of the employment agency, Atlantis Medical Limited in London, and that he was assigned as a locum to the respondent.  Responsibility for the payment of wages is that of the employment agency.  While the complainant is claiming pay for hours that he worked with the respondent, it is my view that his dispute concerning his wages is with the employment agency, who was his employer.

At the conclusion of the hearing on November 14th 2023, I advised the complainant of my findings in this regard and I left it open to him to submit a complaint against the correct respondent.

I have concluded that the complainant has submitted this complaint against the wrong respondent, and for this reason, I decide that it is not well founded.

Employment agency, respondent is not the employer

Complainant

Respondent

Parties

Edwin Dordoe

Eurofins Biomnis

Representatives

Self-represented 

Thomas Ryan, Peninsula

Act

Complaint Reference No.

Date of Receipt

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

CA-00057798-001

19/07/2023

The respondent is a medical pathology laboratory which analyses on blood samples for clients.  The complainant is a medical scientist and, on September 27th 2021, he was recruited to work as a locum medical scientist in the respondent’s blood testing laboratory in Sandyford in Dublin, reporting to the operations manager.  He was hired through an employment agency in London, Atlantis Medical Limited.  He was paid an hourly rate of £48 British pounds.  He said that his contract was ended abruptly on May 18th 2023, when the respondent’s contract with Naas General Hospital was terminated.  He said that he should have been given two weeks’ notice, but instead, he was given a few hours’ notice and paid for one week. 

In contravention of s.5(6) of the Payment of Wages Act 1991, the complainant claims that he was not paid €7,248 for overtime that he worked in January and February 2023.  The respondent’s position is that the overtime hours were not approved.  They also argue that this complaint has been submitted against the wrong respondent, because the responsibility for the complainant’s wages lies with the employment agency.

In his evidence at the hearing, the complainant said that, when he started in the job in Sandyford, he worked from 9.00am until 5.00pm.  He said that he occasionally worked more than 40 hours a week.  To complete monthly maintenance tasks, he said that it was necessary to work extra hours.

In August 2022, the complainant said that the chief medical scientist told the laboratory staff that they would have to take on an additional workload.  In the documents he submitted at the hearing, he included an email dated August 24th 2022 from Ms Eimear Cunningham, the chief medical scientist.  Ms Cunningham told the laboratory staff that she was seeking expressions of interest from them to work extended hours and on Saturdays, to accommodate a new contract in Naas General Hospital.  In her email, Ms Cunningham explained the allowances that would be paid for working a late shift and the weekend overtime rate of time plus one half for the first four hours and double time for every additional hour.  On the form he submitted to the WRC, the complainant said that at a meeting with Ms Cunningham, it was agreed that they would use the Saturday shifts to clear the backlog from the previous week.

The complainant said that he agreed to work from 2.00pm until 10.00pm from Monday to Friday.  At the hearing, he said that, on top of 500 samples per day, they would be required to test between 350 and 500 more samples.  The complainant said that the machines in the laboratory couldn’t handle this workload.  Because the machines were slow, he said that he would have to stay on after 10.00pm because the testing couldn’t be stopped half-way through the process.  By December 2022, the complainant said that he and his colleagues were testing 1,500 samples a day.  Around the end of the year, he said that four people resigned over a period of eight days.   He said that he was happy to work from Monday to Friday, and that he didn’t want to work overtime, but he wanted to keep the testing process going.

The complainant said that he was at work on Saturday, January 16th 2023 and, to complete the testing, he had to work until 4.00am.  A new medical scientist joined on February 1st, but, at that stage, the testing was two days behind.  The complainant said that he was on call on Saturday, February 4th and the chief medical scientist, Ms Cunningham, asked him to come in to work.  He said that, as a last resort, he agreed to come in.  Between 1,500 and 3,000 samples had to be tested and his colleague finished work at 7.00pm to collect her children.  The complainant said that he worked for 19 hours that Saturday.  On Monday, February 6th, which was a public holiday, he worked from 4.30pm until 5.00am.  He said that if the samples had been left until Tuesday, they would have been too old for testing and blood would have to be taken from patients again.  On February 11th, he worked 21.5 hours’ overtime.

When he submitted his timesheet to the agency, the complainant wasn’t paid for the overtime hours that he worked.  He was informed that Ms Cunningham would not approve payment for the overtime hours.  He sent an email to the HR manager in Eurofins Biomnis, M Helena Mazurkiewicz and he explained to Ms Mazurkiewicz that he had been working extra hours since January and that Ms Cunningham had acknowledged this and had suggested a 4.00pm start instead of 2.00pm, because she was concerned for his wellbeing.  The complainant said that he replied that he would continue to work the hours because a new staff would soon be joining.  He also asked about the purchase of a machine to uncap samples, which he said would save a lot of time. 

Regarding his shift on the public holiday on February 6th 2023, the complainant said that Ms Cunningham asked him to work on that day, when his colleague couldn’t cover the shift.  He said that he cancelled his flight to and from London so that he could stay in Dublin and work.

The complainant referred to a meeting with the HR manager, Ms Mazurkiewicz and the chief medical scientist, Ms Cunningham at which she said that he asked if he could stop the machines in the laboratory at midnight.  He said that Ms Cunningham said that the machines should not be stopped, but she complained about the hours he worked.  From Monday, March 16th, he said that he stopped the analyser machines so that he could leave at midnight and he did that until his last day at work on May 18th 2023.  At the HR meeting, the complainant said that Ms Cunningham said that she should have been contacted before he worked the long hours in the evenings.  The complainant said that, as the laboratory manager, she should have known about the number of samples that had to be tested. 

In the documents submitted at the hearing, the complainant included an email from Ms Cunningham at 20.25 on February 13th 2023.  In her email, Ms Cunningham said that she could not approve timesheets with claims for overtime that had not been approved in advance.  She reminded the complainant that his hours of work were from Monday to Friday from 2.00pm until 10.00pm with occasional eight-hour shifts on Saturdays.  She said that he was only approved for two to three hours of overtime on the public holiday on February 6th and that this was all he could claim.  Ms Cunningham told the complainant to re-submit his timesheets for the hours he had been rostered which was “something we discussed many times.”

The complainant replied at 3.21am on February 14th.  He said that he was still at work dealing with a specific issue from that day.  He said that from now on, he would finish at 10.00pm.  He complained that he was expected to clear three days of work in four hours and that on Saturday, February 11th, he had to run outstanding samples from the previous two days.  He told Ms Cunningham that he would never “kill myself doing such shifts again.”

When he filled in his timesheet and submitted it for payment to the employment agency, the complainant said that he was informed that Ms Cunningham had not approved the pay for his overtime and he was paid for the hours he worked from Monday to Friday only.

On the form he submitted to the WRC, the complainant named two of his colleagues who, he said, were not treated in this way and were paid for all the overtime hours that they worked.

The complainant claims that he is owed wages for overtime as follows:

January 16th 2023:  4 hours @ £72 per hour

February 4th 2023:  4 hours @ £72 per hour plus 15 hours @ £96 per hour

February 6th 2023:  19 hours @ £96 per hour

February 11th 2023:  4 hours @ £72 plus 17.5 hours @ £96

Four days’ notice comprising 30 hours @ £48

Total amount of wages claimed:  £7,248

The respondent terminated the complainant’s contract on May 18th 2023.  In July that year, he was still seeking payment for his overtime hours.  In the documents he produced at the hearing, he included a copy of an email dated July 21st 2023, from the payroll officer in the employment agency, Ms Divya Seedhar.  In this email, Ms Seedhar told the complainant that the chief medical scientist, Ms Cunningham, would not approve the timesheets which included the overtime hours.

On behalf of the respondent, Mr Ryan sent a submission in advance of the hearing on November 14th 2023.  He included a copy of the terms and conditions agreed between the agency and the respondent concerning the complainant’s appointment in the laboratory in Sandyford in Dublin commencing on September 27th 2021.  Mr Ryan said that the complainant has no contract of employment with the respondent and the respondent did not negotiate terms and condition of employment with the complainant.  Terms and conditions were agreed with the employment agency, Atlantis Medical Limited, in the United Kingdom (“the agency”).  The respondent’s position is that the complainant was not an employee of the respondent, but was directly employed by the employment agency and assigned as a locum to the respondent.  In support of this argument, Mr Ryan referred to the decision of the High Court in Minister for Labour v  PMPA Insurance Company, [1986] JLSLW 215.  In this case, Ms Nulty, a temporary typist hired by PMPA through an employment agency clamed an entitlement to holiday pay.  Mr Justice Barron held that Ms Nulty contract was enforceable solely under her agreement with the agency and that she had no contract with PMPA.

Mr Ryan referred to the agreed notice period in the terms and conditions document.  This indicates that the complainant was employed for six months initially, with a provision for two weeks’ notice and that one week’s notice will be given for termination after six months.  The complainant was issued with one week’s notice of the termination of his employment and he was paid for one week in lieu of notice.

In the documents he submitted for the hearing, Mr Ryan included emails to the complainant from Ms Cunningham in October and November 2022 when Ms Cunningham instructed him to work only his rostered hours.  In her email of October 25th 2022, Ms Cunningham wrote:

“I do understand that you are being diligent and I appreciate this, however, I only have approval from management to approve 35 hours per week for each of our locum staff.  I can approve it for this week, as we didn’t get a chance to discuss it before now.”

On November 22nd, Ms Cunningham repeated her request to the complainant, not to submit timesheets for unapproved overtime.

Ms Cunningham wrote again to the complainant on January 31st 2023 and on February 8th, when she instructed him to leave at 10.00pm.  In this email, the complainant was clearly instructed not to run samples later that evening.  On February 13th, Ms Cunningham wrote to the complainant about timesheets submitted for the two previous weeks in which it appeared that he worked for 82.03 hours and 80 hours respectively.  The complainant replied and said that he had re-submitted a time sheet for one of the weeks because his overtime was not paid.

On February 14th, Ms Cunningham approved pay for 45.25 hours for the week ending on February 13th.  Again, she asked the complainant to let her know if he needed to work late because she couldn’t approve overtime that wasn’t checked with her first.

On March 14th 2023, Ms Cunningham wrote to the payroll department in the agency and said that she was approving certain hours and overtime for the complainant for six weeks from January 1st until March 5th 2023.  Ms Cunningham told the payroll officer that the complainant had also submitted inflated overtime hours which she could not approve.  In reply, the payroll officer asked Ms Cunningham to “keep an eye” on the timesheets submitted by the complainant and to apply a rejection process if they were found to be wrong.  Ms Seedhar said that she would also keep an eye on the timesheets to ensure that no claim is for more than 37.5 hours.

From the evidence of the parties at the hearing, it is apparent that the complainant was an employee of the employment agency, Atlantis Medical Limited in London, and that he was assigned as a locum to the respondent.  Responsibility for the payment of wages is that of the employment agency.  While the complainant is claiming pay for hours that he worked with the respondent, it is my view that his dispute concerning his wages is with the employment agency, who was his employer.

At the conclusion of the hearing on November 14th 2023, I advised the complainant of my findings in this regard and I left it open to him to submit a complaint against the correct respondent.

I have concluded that the complainant has submitted this complaint against the wrong respondent, and for this reason, I decide that it is not well founded.

Employment agency, respondent is not the employer