Worker

Employer

Anonymised Parties

A Catering Officer

A Hospital

Representatives

Eoghan Ryan, Forsa

Cáit Lynch, IBEC

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

IR - SC - 00001255

07/04/2023

The worker commenced in the hospital in April 2006 as a catering officer, grade 2.  Her contract provides that she “will be paid in accordance with the rates of pay determined from time to time by the Minister for Health and Children and as approved by the hospital.”  Effectively, this means that the worker was paid in accordance with the HSE pay scale for her grade.

The worker’s starting salary in April 2006 was €42,721.  Her contract shows that she was required to work 39 hours per week, resulting in an hourly rate in 2006 of €20.99. 

In November 2022, as a result of the reversal of pay cuts imposed by the Haddington Road Agreement (HRA), the employer discovered that the HSE’s annual salary for catering officers was based on a requirement to work 35 hours a week before the HRA pay cuts of 2012, and 37 hours from 2012 to 2022.  In November 2022, the cuts were reversed and the hours were reduced back to 35.  This effectively meant that the worker had been working 39 hours per week when the HSE pay rates were based on the following weekly hours:

2006 – 2012:  35 hours

2012 – 2022:  37 hours

In November 2022, when the discrepancy was identified, the employer rectified the worker’s hourly rate which should have been €23.99 from the commencement of her contract and €26.61 with effect from December 2019.  As a gesture of goodwill, the employer offered compensation of €4,788.42 gross, equivalent to the value of two years of back pay.  The worker claims that, between 2006 and 2012, she worked four hours each week for no pay, and from 2012 until 2022, she worked two hours per week for no pay and that she is owed a sum of approximately €82,000.

On behalf of the employer, Ms Lynch explained that, in accordance with section 38 of the Health Act 2004, the HSE provides funding to the hospital to deliver services to the public.  The HSE has no obligations to employees of the hospital regarding their terms and conditions of employment, although rates of pay for most employees are in accordance with HSE pay grades.  Mr Ryan pointed out that there is a collective agreement in place between the hospital and the union, to the effect that workers are entitled to be paid in accordance with the HSE’s pay scales for their grades.

It was absolutely apparent to me at the hearing that the discrepancy uncovered as a result of the unwinding of the pay cuts imposed by the Haddington Road Agreement was a shock for this worker.  Although since January 2020, she works four days a week and she reduced her days further to three days a week in September 2022, as someone expected to work 35 hours per week (and 37 hours between 2012 and 2022) instead of 39, she claims that she was paid less than the hourly rate to which she was entitled.  I have some sympathy for the worker’s situation, because, it is clear that if her employer had been aware of the fact that directly employed catering officers in the HSE are contractually obliged to work only 35 (or 37) hours a week, I am confident that she would have been required to work 35 or 37 hours also.

While organisations with “section 38” agreements with the HSE receive funding to provide their services, I understand they are not legally obliged to pay the same wages or to offer the same terms and conditions to their employees as HSE workers.  I accept that the union has a collective agreement in place with the hospital and it is apparent therefore, that the fact that the worker was required to work 39 hours per week instead of 35 or 37 is a breach of that agreement. 

At the hearing, I learned that, in addition to the compensation of €4,788.42, equivalent to the value of two years of the difference in the worker’s rate of pay, there has been an offer to pay the same amount again, bringing the total amount offered to €9,576.84.  In the unusual circumstances of this case, it is my view that an offer of four years’ loss of earnings is reasonable.  I have reached this conclusion because the employer is a not a profit-making enterprise, the worker is in a secure job with reasonable pay and her terms and conditions are also very reasonable.

I recommend that the worker accepts the offer from the employer to pay total compensation of €9,576.84.  I further recommend that the employer engages with the worker to facilitate her to take time off in the form of a reduced working week with no loss of pay, up to a maximum of 100 hours.  

Pay scale, discrepancy, compensation