Complainant

Respondent

Parties

Mary  Travers

The Mater Private Hospital

Representatives

Maeve Brehony, Irish Nurses & Midwives Organisation

Adrian Norton, Ibec

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-00058564-001

29/08/2023

The Complainant has worked in the Respondent’s Oncology Department (the “Department”) since January 1997. She was first employed as a Staff Nurse and she is now employed as a Clinical Nurse Manager II (“CNM II”). She earns approximately €6,065.76 gross or €4,003.44 net per month, working 37.5 hours per week. In early 2000, due to “chronic staff retention and recruitment challenges”, the Respondent introduced a red circle allowance of approximately €7,600 gross per annum (the “RetentionAllowance”) which was paid to five members of staff in the Department, including the Complainant.

In February 2022, the Complainant successfully applied for the CNM II role. In March 2022, she commenced this new role. The Complainant continued to be paid the Retention Allowance until April 2023 when she was told that this was an error and it was stopped. The Retention Allowance was then part-paid in June 2023. The Complainant submitted that she did not agree to the “unilateral withdrawal of this allowance”. On 29 August 2023, the Complainant submitted her Complaint Form to the WRC, alleging that the Respondent had contravened the Payment of Wages Act 1991 as amended. The Respondent refutes the complaint in its entirety.

The Complainant provided detailed written and oral submissions.

The Complainant outlined that she has been employed by the Respondent for approximately 27 years. She submitted she has an exemplary record. She submitted that the Retention Allowance was an “integral part” of her income. The Complainant submitted that she has received the Retention Allowance since 2002, as a Staff Nurse, a Senior Staff Nurse, an Enhanced Nurse and as a CNM I. The Complainant submitted that she was the sole remaining recipient of the Retention Allowance in the Department. The Complainant submitted that the Retention Allowance was never a feature of her contract.

The Complainant submitted that in April 2023, she was advised that the Retention Allowance was being stopped, as according to HR, CNMs were not entitled to it. The Complainant challenged this assertion, noting that the CNM II in situ from 2002 until 2018 received the Retention Allowance. The Complainant submitted that she received no further communication from HR and the Retention Allowance was stopped in May 2023. The Complainant commenced the internal grievance procedure. The Complainant argued that the payment of the Retention Allowance was an implied term, relying on Michael McNamara v. DHL Express (Ireland) Ltd & DHL Hub Leipzig GmbH, ADJ-00024013.

The Complainant submitted that she was appointed to the role of CNM II following intense work setting up an Oral Chemotherapy Service which looks after approximately 460 patients per month. She submitted that it is the first nurse-led service in oral chemotherapy in the private hospital sector. The Complainant submitted that when she was promoted to the CNM II role, she expected the Retention Allowance to continue. The Complainant submitted that the Retention Allowance applied “to all grades on a personal to holder basis for the duration of tenure within the oncology department”.  The Complainant submitted that no one discussed the loss of the Retention Allowance with her. She further submitted that the loss of the Retention Allowance negates the salary increase which came with her promotion. She submitted that the overall effect is that she has increased responsibility for less money. She submitted that if she had known this in advance, she would have given more consideration to accepting the promotion.

The Complainant seeks €15,200 to take account loss of earnings since May 2023 and going forward. The Complainant clarified that this encompasses €638.42 per month for May, July and August 2023. She is also seeking €74.31 (€638.42 minus 564.11) for June 2023 as the Retention Allowance was partly paid to her that month.

Complainant – Cross-Examination:

The Complainant accepted that when the Retention Allowance was introduced, there was a chronic staff shortage, but there is no such shortage now.

The Complainant accepted that as an Enhanced Nurse, she was at the uppermost point of her salary scale, whereas she is now at point 2 of the CNM II salary scale. The Complainant accepted that this means that she has the capacity to earn up to €6,000 more on the CNM II salary scale.

The Respondent provided detailed written and oral submissions.

The Respondent submitted that the Complainant commenced work on 6 January 1997 as a Staff Nurse. The Respondent submitted that the Complainant progressed to Senior Staff Nurse in August 2011 and to Senior Enhanced Nurse in April 2020. The Respondent submitted that after applying for promotion, the Complainant took up her current role as CNM II on 1 March 2022.

The Respondent submitted that in 2005, “a limited cohort of employees” in the Department were paid an allowance for working nights and weekends, despite them having no obligation to do so. It was agreed that this Retention Allowance would continue to be paid “for as long as people remained in their specified roles within the [D]epartment.”

The Respondent submitted that when the Complainant was offered the new role of CNM II, she received a new contract of employment which she signed on 4 April 2022. The Respondent submitted that this new contract contained new terms and conditions regarding inter alia remuneration and indicated that she commenced on €54,170.36 per year. The Respondent submitted that in March and October 2023, the CNM II pay scale was revised upwards to €61,701.01, to align with the HSE pay scale.  The new terms and conditions included a new specialist allowance of €3,835.00 per year to reflect the Complainant’s oncology qualifications. The Respondent submitted that the new contract did not refer to the Retention Allowance as it no longer applied to new roles in the Department.

The Respondent submitted that due to an administrative error in payroll, the Complainant continued to be paid the Retention Allowance, for a period of fourteen months, up to and including April 2023. When the error came to the attention of the Respondent at the end of April 2023, the Complainant was advised that the payment would cease with immediate effect. The Complainant was also advised that the Respondent reserved its position on recovering the overpayment, which amounted to €7,801.94. The Respondent further submitted that another administrative error in payroll saw the Complainant being part-paid the Retention Allowance in for June 2023.

The Respondent submitted that no unlawful deduction of wages has occurred and that at no point has the Complainant received a salary below her contractual salary. The Respondent relied on Marek Balans v. Tesco Limited [2020] 31 E.L.R. 125 as well as the Labour Court decision in A Public Body v. A Worker, PWD2319. The Respondent submitted that the “the important element to establish is what were the wages ‘properly payable’ to the employee on ‘that occasion’”. The Respondent submitted that the wages “properly payable” to the Complainant are set out in her contract, signed on 4 April 2022. The Respondent submitted that the Complainant’s contract makes no reference to the Retention Allowance. The Respondent submitted that the Complainant would have been aware that the situation that instigated the payment of the Retention Allowance, was long since abolished and no longer applied to people taking up new positions within the Department. Finally, the Respondent submitted that it was incumbent on the Complainant to seek to have the Retention Allowance included in her new contract, if she thought it ought to be retained. The Respondent submitted that in the absence of the same, the Complainant could not have a legitimate, rationale expectation that it would continue.

The Respondent submitted that the cognisible period for the purposes of this complaint is 28 February 2023 to 29 August 2023. The Respondent submitted that the Complainant was paid the Retention Allowance in error for the period 28 February 2023 to 30 April 2023 as well as from 1 June 2023 to 30 June 2023 (except for an amount of €74.31). The Respondent submitted that the only periods of relevance for the purpose of this claim are 1 May to 31 May and 1 July to 29 August 2023. The Respondent submitted that the amounts in dispute for those two periods are €638.47 and €1,276.94 respectively.

Ms. Ronan – Oral Evidence:

Ms. Ronan outlined that the Complainant was provided with the standard template CNM II contract when she was appointed to her new role. Ms. Ronan outlined that no other CNM II nurses, nor anyone else at the Hospital, receives the Retention Allowance.  

Ms. Ronan outlined that the Retention Allowance had continued to be paid to the Complainant due to an administrative error. Ms. Ronan outlined that HR had identified this error following a review of payroll records in April 2023. She said that this error was communicated to the Executive Payroll and the Complainant was informed that the Retention Allowance would be removed.

Ms. Ronan confirmed that the previous CNM II in situ from early 2000 to 2018, received the Retention Allowance.

Ms. Ronan – Cross- Examination:

Ms. Ronan stated that she was only able to confirm from her records that the Retention Allowance was paid from 2005.

Ms. Ronan confirmed that the Complainant held the CNM I role from 2004 to 2005 on an interim basis, but there was no contract addendum.

Ms. Ronan outlined that the Complainant was in receipt of the new specialist allowance, in recognition of her oncology qualifications and that this was an increased allowance.

Ms. Ronan outlined that she has only two contracts on record for the Complainant – her first Staff Nurse contract and her most recent CNM II contract. Ms. Ronan stated that the Complainant progressed through her other roles and no contract was issued for those roles. Ms. Ronan sated that this progression was based on tenure. Ms. Ronan explained that the CNM II role was a promotion with new terms and conditions and that is why the Complainant received a new contract. Ms. Ronan outlined that the role was advertised and that the recruitment involved a competitive process.

Ms. Ronan confirmed that the Complainant’s CNM II contract is a standard contract and that the clause “rates of pay determined from time to time” is followed by the salary scale specific to the role in question.

Ms. Ronan outlined that the CNM II in situ from early 2000 to 2018 had received the Retention Allowance as she was in that position when the Retention Allowance was first introduced.

When it was put to Ms. Ronan that the Complainant thought that she had signed new contracts for each of her roles, Ms. Ronan said that she had checked. Ms. Ronan outlined that the Complainant’s previous roles were progressive moves and did not involve a competitive process like that for the CNM II role.

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.”

Findings and Conclusion:

The Complainant filed her Complaint Form on 29 August 2023. I can consider her complaint for six months immediately prior to this date. I note that the first alleged unlawful deduction occurred in May 2023 and falls within the cognisible period.

Substantive Issue – Payment of Wages:

The Law:

Section 5 of the Payment of Wages Act 1991 as amended, provides as follows:

“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.”

And

“5(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.”

Section 5(6) of the PWA was considered in Marek Balans v. Tesco Ireland Limited [2020] IEHC 55. In that case, MacGrath J. re-affirmed the proposition that the first matter to be determined is what wages are properly payable under the contract of employment. If it is established that a deduction within the meaning of the PWA has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful.

Findings and Conclusion:

As outlined above, I am required to establish what wages were properly payable in accordance with the Complainant’s contract of employment.

The Complainant has worked in the Department since 1997. She started as a Staff Nurse and based on tenure, progressed to the roles of Senior Staff Nurse in 2011 and Enhanced Nurse in 2020. She also held the CNM I role from 2004 to 2005 on an interim basis. She did not receive a new contract for those roles. While in those roles, she retained the Retention Allowance, which had been awarded to a small cohort of employees in early 2000 due to chronic staff shortages. I note that the Complainant submits that the Retention Allowance was first awarded in 2002 while the Respondent submits that it was first awarded in 2005.

The Complainant commenced the new role of CNM II in March 2022. This new role, a promotion, was unlike her previous roles insofar as it involved a competitive recruitment process and a new contract. This new contract contained new terms and conditions regarding inter alia remuneration. The new contract indicated that the Complainant commenced on a salary of €54,170.36 per year. In March and October 2023, the CNM II pay scale was revised upwards to €61,701.01, to align with the HSE pay scale. In October 2023, the Complainant also received a new specialist allowance of €3,835.00 per year, to reflect her oncology qualifications. There is no reference in any of the documentation to the Retention Allowance. Moreover, no documentation was put before me confirming that the Retention Allowance is payable to the Complainant in her new role.

In the circumstances, I find that the Retention Allowance is not properly payable to the Complainant and therefore the complaint is not well founded.

For the reasons outlined above, this complaint is not well founded.

Payment of Wages, Properly payable, Allowance.