Complainant

Respondent

Parties

Colm  Potts

Health Service Executive St Michaels Hospital

Representatives

Cillian McGovern B.L. instructed by Crushell & Co Solicitors

 IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064865-001

19/07/2024

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

CA-00064865-003

19/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00064865-004

19/07/2024

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

CA-00064865-005

19/07/2024

The background to this complaint lies in a very substantial re-organisation in the respondent which including outsourcing much of the work previously undertaken by the complainant. This resulted in a very significant reduction on the complainant’s income.

The complainant sets out his complaints as follows. He gave evidence on oath (mainly in respect of CA-64865-005).

Complaint CA-00064865-001 under the Terms of Employment (Information) Act. There has been a unilateral change to his terms and conditions of employment without his consent. He has not received a copy of a revised contract of employment that accurately reflects his working terms and conditions.

Complaint CA-00064865-003  under the Payment of Wages Act, 1994 ; Since returning to work  in 2020, his salary has reduced from approximately €90,000 per year to €50,000 per year. he estimate there is a shortfall of at least €40,000 per year over the last four years.

Specific Complaint CA-00064865-004 Penalisation Safety, Health and Welfare at Work Act; He  feel as if he has been penalised for asserting his own legal rights in respect of the issues complained of.  Examples include being treated totally differently since he took the grievance. He had difficulty getting his entitlements when he returned to work., such as CIP. They penalised him in 2020.

Complaint CA-00064865-005, Employment Equality Act. The complainant says that he returned to work from sick leave in 2020 having previously had a range of duties in respect of bed maintenance etc but die to his health  he was assigned to ‘light duties’.

Previously he had been the only person carrying out ‘specialised duties’. 

In response to question in cross examination the complainant confirmed that he had been told about significant changes to work practices at a meeting in 2020. He also confirmed that he accepted the changes at the time and that he had been offered re-training in relation to a limited range of duties.

He also accepted that he had not been treated any differently to his co-workers at the time arising from the changes.

The complaint was received by the WRC on 19th July 2024.

He  commencedemploymenton29thMay2000asaTheatre and Ward Porter on a twelve-month, fixed term contract and his dutiesincludeddeliveryandcollectionoflaundryandpost,collectionand disposalofclinicalandnon-clinicalwastepost-surgery, changingandmovementofoxygen and other gas cylinders.  He also assisted in A&Eand Outpatients Departments and with visitors and patient admissions etc.

On 26th October 2001 he was issued with a permanent contract as a Hospital Porter and paid at top of scale plus 8% Theatre allowance.

Claim under Section 7, of the Term of Employment Information Act 1994.

In his WRC claim form, the complainant states “There has been a unilateral change to his terms and conditions of employment without his consent. he has not received a copy of a revised contract of employment that accurately reflects his working terms and conditions”.

There is a preliminary issue related to jurisdiction to hear this complaint. The complainant refers to a period of change but does not particularise when this change occurred. It is assumed he is referring to October 2021, when a re- structure within the maintenance operations occurred.

This falls outside the statutory six month time limit for a complaint and he has not demonstrated reasonable cause for the delay as determined in the authorities.

In any event, the complainant was issued with an employment contract on commencement of employment.

In October 2021, because of re-structure within the maintenance operations, and the outsourcing of bed duties, the Complainant’s duties related to bed maintenance were reduced. Consequently, his overtime hours decreased, however, his core contractual hours, job title, rate of pay and allowances remained unchanged. In line with this, his own Union conveyed to the company that this change does not justify the need for a new contract.

The outsourcing of bed maintenance applied hospital wide and it’s also important to note that overtime was never guaranteed or a contractual entitlement but rather an additional opportunity based on the hospital’s operational needs and functions.

Therefore, there has been no unilateral change to the complainants terms and conditions and more importantly, the change he is referring to occurred in October 2021, consequently, making his claim out of time.

Claim under Section 6, of the Payment of Wages act 1991.

In his claim form to the WRC, the Complainant asserts that “Since he returned back to work in 2020, his salary has reduced from approximately €90,000 per year to €50,000 per year. he estimate there is a shortfall of at least €40,000 per year over the last four years”.

Furthermore, including July 18th,  2024 as the payment date this complaint is also mostly out of time.

This complaint was submitted to the WRC on 19th of July 2024 and therefore, the cognisable period for this complaint, as provided in the Payment of Wages Act, 1997 is between 10th of January 2024 and 19th of July 2024.

He submits that he was expecting the payment to be made in July 2024 and references a “shortfall of at least €40,000 per year, over the last 4 years,” consequently only the cognisable period should be considered, and the Respondent submits that any justification afforded does not meet the exceptional circumstances as established in relevant case law.

Section 6(4) of the Payment of Wages Act provides

“A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.”

Therefore, this claim is out of time and the cognisable period should only be six months, starting from January 10th, until July 19th, 2024. The Respondent rejects this claim in its entirety as no unlawful deduction of wages has occurred.

In October 2021 following changes in insurance and safety requirements, the bed maintenance duties were outsourced to a third-party contractor.

The decision to outsource bed maintenance was not arbitrary. The hospital, as a healthcare provider, must comply with strict insurance, warranty and safety standards, and bed maintenance was deemed a specialised task that needed to be performed by qualified individuals. The Respondent’s decision to outsource was made in the best interests of both the organisation and the safety of patients. It was an operational necessity.

This legitimate business decision justifies the changes in certain tasks, which were thoroughly explained to the Complainant and to his Union Representative at the time. Additionally, he was offered training on bed maintenance to enable him to fulfil those duties, but he declined. (Appendix 4 – Meeting minutes) While the Complainant is no longer responsible for bed maintenance duties, he does, however, continue to receive the higher rate of pay that was previously linked to these duties.

The Respondent rejects the claim under the Payment of Wages Act in its entirety as no unlawful deduction of wages has occurred. At no point has the complainant received a salary below his contractual salary. In making this statement the Respondent is taking into account not only the Complainant’s clear written contract of employment, but also the operation of this contract in reality and the established norms of the Respondent more generally.

The Complainant is arguing that there was a deficiency in payment of his wages on the period in question. The Payment of Wages Act, 1991, under section 5(6) states: “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, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Thus, the important element to establish is what were the wages “properly payable” to the employee on “that occasion”. The Respondent contends that the wages “properly payable” to the employee were the wages as advised to the employee in the contract of employment., No deduction as defined in Section 5 of the Act has been made. Accordingly, no jurisdiction exists under the Payment of Wages Act 1991 for this claim to be heard.

Furthermore, any deduction made to salary were made in accordance with Section 5 of the Act, namely deductions required by virtue of statute, and are thus lawful deductions.

The Act primarily addresses deductions made from an employee's wages, rather than changes to the agreed-upon salary. Please note the payslips only display the hourly rate for the main post (Maintenance Foreman Post). Thus, when calculating the Complainant’s average hourly pay for it will need to combine both roles .

Claim under Section 28, of the Safety, Health & Welfare at Work Act, 2005.

The  Complainant's claim falls outside the statutory time limit for submission as he specifically cited that “They penalized me there in 2020”. Consequently, this claim is statute barred.

However, the complaint was lodged on July 19th,  2024, making this claim manifestly out of time, approximately four years out of time.

Strictly without prejudice to the preliminary argument that this claim is out of time, the Respondent rejects the claim under the Safety, Health & Welfare at Work Act, 2005 in its entirety.

The Complainant alleges that he was “penalised for asserting his own legal rights in respect of the issues complained of. Examples include being treated totally differently since he took the grievance”.

The only information provided by the Complainant in respect to the complaint is set out in the complaint form and this is the first time the Respondent is hearing about the alleged instances. Even during his working-time, the Complainant did not cite nor submit anything to prompt the employer to investigate the matter. Moreover, the Complainant at no point submitted a raised concerns in relation to any health and safety concerns.

Despite the existence of set procedures and company’s proactive stance, the Complainant did not avail himself of the available channels to address his concerns internally. The company was thus deprived of the opportunity to investigate and remediate any potential issues.

The Respondent notes again that the date averred to by the Complainant as relating to an alleged instance of having raised concerns under the Safety, Health & Welfare at Work Act, 2005, is October 12th  2020 when he raised a grievance in relation to a removal of a revised contract resulting in this claim being out of time. In the absence of any evidence from the Complainant to the contrary, it logically follows that any ensuing allegations of penalisation are similarly out of time.

It is the Respondents position that submitting a grievance for the non-payment of Critical Illness Payment (CIP), does not constitute a breach under Section 28, of the Safety, Health & Welfare at Work Act, 2005 and in no way constitutes penalisation.

In looking at the issue of penalisation it is important for employees bringing claims to understand that:

•  A complaint under that Act has to has been made.

•  It is a not necessary that the particular Act is mentioned in any complaint. However, it is beneficial if it is as it clearly identifies where the complaint by the employee is coming from.

•  The employee needs to set out what exactly the issue is which they are complaining of.

•  The employee must be able to show that they suffered a detriment because of having raised a health or safety complaint.

However, having outlined the above necessary steps in grounding a penalisation claim, the Complainant failed to provide any evidence of how they has been met by him. He has failed to link the above requirements to his alleged circumstances. Neither has he set out details of the, or shown that he has suffered a detriment as a result.

It should also be noted that he has not identified any specific penalisation but has made only general allegations concerning alleged treatment following a submission of a grievance and non-payment of the critical illness payment (CIP). It is submitted that this is insufficient to base a claim of penalisation as it not particularised and is not understood.

The Respondent would like to reiterate that the alleged non-payment of the critical illness payment was due to the Complainant informing the company at the time that he was fit to return to work. The CIP has very specific criteria for eligibility, which were not met in this case. However, the Complainant received the COVID vulnerable workers payment, which was a more favourable payment than the CIP as it didn’t count towards normal sick leave rules.

The Respondent relies on the case of Toni & Guy Blackrock Limited -v- Paul O’Neill HSD095 where the Labour Court determined that the employee must prove on the balance of probabilities that he/she made complaints regarding health and safety in the workplace and such complaints resulted in him/her being penalised in the workplace. The Labour Court also gave consideration to what was required in order to discharge this burden of proof stating:

“Thus the detriment giving rise to the complaint must has been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not has suffered detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

It is clear that employees will only be successful in a penalisation claim under the 2005 Act if they can prove that they:

a.              made a complaint to their employer in respect of a health and safety matter; and

b.              suffered a detriment as a result of the actions of their employer; and

c.              It can be proven that they would not has suffered this detriment had a complaint not been made in the first place.

In Emmet Kelly and Bord Na Mona Recycling Limited Bord Na Mona ADJ-00044347 the Adjudicator, in finding no breach of section 39 noted that:

“he has approached the within matter on the basis of first determining whether a protected act within the meaning of the Act at Section 27(3) above was initiated. Having read the complaint form submitted by the Complainant and having questioned his representative at the hearing about a protected act having been made by him, given the absence of any reference to same either in the complaint form or in any of the documentation furnished to the WRC, he am satisfied that no protected act occurred.

Given that the Complainant did not therefore initiate any protected act set out in section 27 (3) of the Act above, he find that his complaint is not well founded”.

No penalisation occurred in accordance with section 28 of the Safety Health and Welfare at Work Act, 2005.

Claim under Section 77, of the Employment Equality Act, 1998.

In his claim form to the WRC, the Complainant alleges that he has been discriminated against on the grounds of disability stating that, “Since he returned to work having suffered from prostate cancer, his employer is refusing to give me as much work as previously provided despite his ability to complete this work”

Citing the 18th of July 2024 as the most recent date of discrimination, exactly 1 day before lodging his complaint to the WRC. He is alleging discrimination on the grounds of disability. However, there have been no changes to his terms and conditions, no less favourable treatment occurred, and the Complainant refers specifically to the period following his return- to-work period which is June 2020.

He has failed to particularise in his claim form the details of alleged discrimination on grounds of disability and failed to include information on how he was discriminated or any detail of alleged incident named as his last date of the discrimination.

It is not satisfactory to allege a contravention in the absence of any specific dates or other important information. Without such details, the Respondent is prejudiced in its defence of these alleged complaints as it has been denied a reasonable opportunity to investigate.

The evidential burden is on the Complainant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Acts. Notwithstanding the fact that in Employment Equality cases the burden of proof is on Complainant, as a matter of basic fairness, the Complainant should be required to include information on particulars of his claim form as to allow the Respondent to know, in broad terms, the nature of the complaint and the case that they are expected to meet.

In Nolan Transport v Jakonis Antanas DWT 1117 and in Erac Ireland Limited and Eddie Murphy DWT1583 the Labour Court makes clear that the Complainant has a duty to particularise the claim he is making (further detail submitted).

Section 85A of the Employment Equality Acts states that “Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary”

The Complainant must present, in the first instance, facts from which it can be inferred that he was treated less favourably than another person is, has been, or would be treated, on the basis of the discriminatory ground cited.

The respondent also relies on Labour Court decisions in Southern Health Board v Mitchell, DEE011, [2001] ELR 201, and in Melbury Developments Ltd v Valpeters EDA 17/2009 the Labour Court warned that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn”.

The complainant has failed to discharge the evidential burden which requires him to adduce such evidence as is available to support a stateable case of non-compliance with the relevant provisions of the Act. His generic allegations do not suggest a reasonable possibility of breach of the Act.

It is clear that the complainant has not submitted his claim within the period of six months, beginning on the date that the alleged incident occurred. It is respectfully submitted that the matter is statute barred. Additionally, the claim form and submission provided limited information, and we are still awaiting the Complainant's submission.

It will be clear from the respondent’s submission how the circumstances leading to this set of complaints came about, and this set of facts has not been disputed by the complainant.

It is worth repeating for the convenience of the reader, (somewhat edited) as it provides important context for the complaints.

In October 2021 following changes in insurance and safety requirements, the bed maintenance duties in the hospital were outsourced to a third-party contractor.

The decision to outsource bed maintenance was necessary to comply with strict insurance, warranty and safety standards, and bed maintenance was deemed a specialised task that needed to be performed by qualified individuals. This outsourcing was required for compliance with health and safety regulations. The Respondent’s decision to outsource was made in the best interests of both the organisation and the safety of patients. It was an operational necessity.

This justifies the changes in certain tasks, which were thoroughly explained to the complainant and to his Union Representative at the time. Additionally, he was offered training on bed maintenance to enable him to fulfil those duties, but he declined. While the Complainant is no longer responsible for bed maintenance duties, he does, however, continue to receive the higher rate of pay that was previously linked to these duties.

Unsurprisingly, the complainant was unhappy about these changes, given their very significant impact on his earnings, or at least if he did not indicate his unhappiness at the time he certainly became very unhappy subsequently.

He has sought to use the vehicle of the various statutes above to attack, or reverse these changes, which are the overarching consideration in respect of all of the complaints that follow.

However, in leaving it until July 2024 to make the complaints he has run up against the requirements in the various statutes under which he complains in respect of time limits for making a complaint.

These are not the only obstacles that emerged and I now deal with the complaints one by one.

The complaint under the Terms of Employment Act, 1994 requires a complainant to show that, in respect of the specific items which are required to be in the Statutory Statement, one or more has changed and the complainant has not been notified of it.

The complainant asserted that there had been fundamental changes to his contract, but unless these fall into the category referred to, no breach of this Act Arises. No such complaint has been made out under CA-00064865-001. (it is common to refer colloquially to the statutory statement required under this statute as a, or the contract of employment. In fact they are not necessarily synonymous and a contract of employment may contain many provisions not required by the statute).

Complaint CA-00064865-002 arises from the reduction in the complainant’s earnings and is made under the Payment of Wages Act 1991.

It is not in dispute that the complainant’s earnings fell as a result of the outsourcing of work previously undertaken by him on overtime. It was a significant reduction as may be seen above.

This complaint was received by the WRC on July 19th, 2024, and therefore, the cognisable period for this complaint, as provided in the Payment of Wages Act, 1991 is between January 10th,  2024 and July 19th,  2024. This leaves a good deal of any reference period outside the time limits.

However, the statute cannot be bent to this purpose. It is a protective measure to ensure that workers get their full lawful wages, or as it is put in the Act, the wages that are ‘properly payable’ to them, and without deductions. It is not a means of seeking compensation for losses as they arose in this case.

The Payment of Wages Act, 1991, under section 5(6) states:

“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, […] then […] the amount of the deficiency […] shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

It is clear from the evidence and the submissions what the source of the complainant’s reduction in wages was. No case was made out that at any time since the restructuring the wages claimed were ‘properly payable’ to him such as to bring him within the protection of the Act, to say nothing of the time limits argument.

His claim of penalisation rests on the raising of his entitlement to a form of sickness Benefit; the Critical Illness Payment (CIP).

Penalisation in general terms is where there is an act of retaliation against a person for the exercise of a particular statutory right. The purpose of such a protection is to ensure that workers are not inhibited in making complaints by fear of adverse, arbitrary action against them for having done so.

In this case there is no evidence of the complainant having asserted any right or made any complaint under the Safety, Health and Welfare at Work Act, 2005 and certainly whatever issues were raised about the CIP do not fall into that category.

Worse, there is no evidence of any retaliatory action by the respondent within the cognisable period, or at any time.

His submission appears to be that he was penalised for raising a grievance about the CIP and represents this as being “penalised for asserting his own legal rights in respect of the issues complained of. Examples include being treated totally differently since he took the grievance”.

However, this does not meet the requirements of ‘penalisation’.

Complaint CA-00064865-005 is taken under the Employment Equality Act, 1998 and the complaint form information on the complaint is as follows.

Since I returned back to work having suffered from prostate cancer, my employer is refusing to give me as much work as previously provided despite my ability to complete this work.

Unfortunately for this complaint that was the height of it and no further details were provided beyond the submission that the last date of an alleged breach was the day before he referred the matter to the WRC, viz July 18th, 2024.

Referring again to the root of this entire matter; the change in the complainant’s working arrangements, it is clear that that is the reason he is not getting as much work as he had previously. It has nothing to do with his cancer nor could he provide a comparator who fared any different.

The complainant and  respondent were due to engage in discussions about the position on foot of a n agreement arising from a previous WRC referral but the respondent has claimed that the complainant did not engage.

Indeed after an abortive attempt to take the first steps in this process the complainant confirmed to the hearing that he instructed solicitors at that time.

He would have been better served by engaging with his employer,  recognising the reality of the situation, and seeing what, if anything could reasonably be retrieved (and should have been so advised).

In the event, none of these complaints have any merit, for the reasons set out above, either because no prima facie case has been made out, or they are not made within the statutory time limits, or in some case both.

For those reasons complaints Complaint CA-00064865-001, 003, 004, and 005. are not well-founded.

For the reasons set out above complaints Complaint CA-00064865-001, 003, 004, and 005. are not well-founded.

Compensation, time limits, wages properly payable