Complainant

Respondent

Parties

William  Forbes

Health Service Executive  

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Mr. Loughlin Deegan, Byrne Wallace

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-00057602-001

09/07/2023

On the 9th July 2023, the Complainant referred the present complaint to the Commission. Herein, he alleged that the Respondent failed to pay him for agreed overtime work completed by him. While the factual element of this complaint was not contested by the Respondent, they submitted that they were precluded from making the payment in question by operation of the relevant legislation.

A hearing in relation to this matter was convened for, and finalised on, 29th September 2023. Both parties issued substantial submissions in advance of the hearing. These submissions were expanded upon and contested in the course of the hearing. In circumstances whereby there was no dispute as to the factual element of the complaint, no sworn evidence was called by either party.

At the outset of the hearing, the name of the Respondent was amended to reflect their correct legal title. This application was granted on consent of the parties.

No issues as to my jurisdiction to hear the substantive matter were raised at any stage of the proceedings.  

By submission, the Complainant stated that in early 2023, he agreed to complete additional work on the request of the Respondent. In this regard, the Complainant worked four additional shifts on March 1st, 3rd, 6th and 7th, to a total of 48 hours. These hours were submitted by timesheets on weeks ending 5th March and 12th March 2023.

In due course, these timesheets were authorised by the relevant internal manager and processed through internal payroll. When the Complainant received his payslip, he noticed that he was paid for 2 hours at time and a quarter, 5 hours at time and a half and 16 hours at double time. This resulted in a payment for 23 hours, a substantial underpayment of the amount due to the Complainant. By submission, the Complainant calculated the underpayment at €3,036.16.

When the Complainant raised this matter internally, he was informed that he was not entitled to any payment for overtime completed in direct contradiction to the position adopted by  management and payroll. 

In addition to the foregoing, the Complainant was informed that the Respondent had no agreed overtime rates for his grade, and that the overtime hours completed due should be claimed as TOIL. Following from the same, a portion of the overtime paid to the Complainant was deducted from his wages on 13th April 2023. In this regard, the Complainant submitted that this deduction was made without any prior notification, consultation or authorisation. Two days later, on 15th April 2023, the Complainant received correspondence stating that he was to suffer a deduction in his wages, without detailing the precise reasons for the same.

Following this sequence of events, the Complainant raised a formal in accordance with the Respondent’s internal procedures. In the first instance hearing, the Complainant was informed that the Respondent was not entitled to pay overtime for the Complainant’s grade on foot of a directive. The Complainant appealed this in line with the Respondent’s internal procedures. In particular, the Complainant relied upon a document entitled “Internal Audit Report – Internal Audit of Overtime – Senior Management” dated 16th June 2021. The Complainant submitted that this document clearly states that the relevant directive “does not state that senior managers can or cannot claim overtime”. The Complainant stated that his contract of employment, signed by him following this review, states that overtime will be remunerated in accordance with the appropriate HSE grade. Again, the Respondent failed to uphold the Complainant’s grievance, placing reliance on an ambiguous term within the Complainant’s contract of employment.

On 26th June 2023, senior management of the Respondent came to an agreement with the Respondent in respect of payment of overtime. At this meeting, it was agreed, in contraction of the grievance outcomes, that the outstanding overtime payments would be paid. This position was confirmed by the Respondent by correspondence dated 15th August 2023. To the Complainant’s surprise and disappointment, the following day he received further correspondence from a different representative of the Respondent advising that the previous communication was issued in error and that the Respondent would not be issuing payment for the overtime hours.

By submission, the Complainant submitted that he was contractually entitled to payment for overtime hours worked. In this regard, he submitted that the Respondent requested that he complete the overtime on the understanding that he would be paid, refused to correctly pay the same and attempted to recover the monies partially paid to him. He submitted that during the grievance process, the Respondent denied that the monies were owed to him on ambiguous, unclear grounds. Following the same, the Respondent undertook to discharge the payment and, again, unreasonably reneged on this position. Following such poor treatment, the Complainant submitted that he had no choice but to refer the present complaint and seek payment for the outstanding wages and recovery of the wages illegally deducted.   

By response, the Respondent agreed with much of the factual matrix submitted by the Complainant, but submitted that the Complainant is neither contractually or legally entitled to the overtime payment sought.

In this regard, the Respondent submitted that the Complainant contract of employment sets his grade as “Tactical Manager Senior”. This is a new grade that was established in 2022 following a significant reform of the Respondent’s services. It is submitted that the pay-scale for this grade (grade 8) is significantly higher than that of the previous grade. The significance of the foregoing is that overtime for persons employed on grade 8 is remunerated as time off in lieu (TOIL) as opposed to any monetary compensation.

Regarding the Complainant specifically, the Respondent submitted that at the outset of his engagement under this grade, an error was made whereby certain overtime hours were remunerated by compensation as opposed to TOIL. Following an investigation in relation to the same, it was determined that this payment constituted an overpayment and would have to be recovered from the Complainant’s wages. In this regard, the Respondent submitted that the total amount of the overpayment (€1,197.82) would be recovered in portions so as to reduce the impact upon the Complainant. The first potion of the overpayment (€348.11) was deducted from the Complainant’s wages on 13th April 2023. Notwithstanding the foregoing, the Respondent submitted that this deduction was reversed in error on 27th April 2023 and that by the date of the hearing, no deduction had been made from the Complainant’s wages. In this regard, the Respondent submitted that the wages in question are not “properly payable” to the Complainant by virtue of his contract of employment, and as a consequence of the same they submitted that the complaint must fail.

In addition to the foregoing, the Respondent submitted that they were statutorily prohibited from monetarily remunerating the Complainant for overtime worked. In this regard, the Respondent referred to the Health Act 2004, which established the Respondent entity. They submitted that Section 22(4) of the same provides that the terms of and conditions under each grade of employment may be determined only with the approval of the Minister for Health, with the consent for the Minister for Finance. In addition to the foregoing, the Respondent submitted that Section 16A(3) of the Ministers and Secretaries (Amendment) Act 2011 (as amended) provides that any payment made to a public servant under an unapproved term of employment shall be recovered either directly or through deduction from wages.

Having regard to the foregoing, the Respondent submitted that the combined effect of the above provisions is that for any enhanced term or condition to apply to a public servant, such as the Complainant, the relevant term must be approved in the prescribed manner. In the event that such payment is made in error, as in this case, the Respondent is legally obligated to recover the same by way of deduction.

In these circumstances, the Respondent submitted that the wages in question were not properly payment to the Complainant. They further submitted that while no deduction occurred by the date of the hearing, they were, and remain, statutorily obliged to recover the payments made in error outside of an approved term of employment. Notwithstanding the same, the Respondent submitted that such a deduction would not be actionable under the present legislation in any event, as the same related to an overpayment of wages.

The present complaint involves an allegation by the Complainant that the Respondent failed make payment for overtime worked. He submitted that he had a contractual entitlement to such payment and that the Respondents’ withholding of the same constituted an illegal deduction for the purposes of the present Act.  In denying this allegation, the Respondent submitted that the payment in question was not properly payable to the Complainant as wages and consequently, the non-payment of the same is not actionable under the present legislation.

Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”.

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which there is a deficiency in respect of those such payments”.

In this regard, the Complainant’s contract of employment contains the follow provision in relation to overtime,

“…you may be required to work overtime, remuneration for which will be in line with nationally approved rates for your grade.”

The clear implication of this provision is that the Complainant’s entitlement to remuneration will be determined by the nationally approved rates for his grade, in this case grade 8.  In this respect, the Respondent opened their internal HR Circular 31/221, dated 20th July 2021. Appendix A, of the same, which is entitled “Clerical/Administrative/Management Grades”, states that, 

“No overtime rates apply to grades above Grade VII”.

In addition to the foregoing, it is noted that the job specification and prospective terms for the Complainant’s role stated that,

“The salary for this role is all inclusive and no other allowances or payments are payable with the exception of payments relating to shift work”.

In circumstances whereby the Complainant applied for the role in the knowledge, actual or presumed, of these terms, it is apparent that the Complainant enjoys no express right to monetary payment for overtime hours worked.

Notwithstanding the foregoing, it is accepted by the Respondent that the Complainant was specifically requested to complete overtime. The Complainant duly completed the same and applied for payment in this respect. Thereafter, this overtime payment was approved by the Complainant’s local management and a payment of €1,197.82 was made.

The position of the Respondent was that the Complainant had no entitlement to this payment and as a overpayment of wages, they were entitled to deduct the same from the Complainant’s wages. Nonetheless, it is apparent that the request to undertake the overtime in question came from the Complainant’s management, with the express understanding that the Complainant would be paid for the same. In addition to the foregoing, payment in respect of the same was authorised and a portion of the amount due paid into the Complainant’s account. Thereafter, following the Complainant raising a grievance in respect of this matter, management briefly accepted that the Complainant would be entitled to retain the payment, before changing this stance a day later.

Having regard to the foregoing sequence of events, the Complainant has raised the argument that even if the contract does not expressly allow for an overtime payment, the actions of the Respondent are such that he has an implied right to such a payment in this instance.

In this regard it is noted that Section 22(4) of the Health Act provides that the Respondent shall,

“…with the approval of the Minister, after consultation with the Minister for Children, Equality, Disability, Integration and Youth, given with the consent of] the Minister for Finance, determine—

(a) the terms and conditions of employment (including terms and conditions relating to remuneration and allowances) of employees appointed under this section, and

(b) the grades of the employees of the Executive and the numbers of employees in each grade.”

The import of this provision is that the local management of the Respondent have no power to agree enhanced terms for employees in their section. In this regard, it is apparent that such enhancement can only occur following the procedure set out in the legislation quoted above.

In addition to the foregoing, Section 16A(1) of the Ministers and Secretaries (Amendment) Act 2011 (as amended) provides that in circumstances whereby,

“(a) the Minister has approved a term or condition as being a term or condition that shall apply for the time being in respect of the employment of a class or category of public servant (whether that approval takes the form of an approval as such, any other form of sanction or the giving of consent by the Minister to a decision of another person in the matter), and

(b) a contract of employment in respect of a public servant falling within that class or category is entered into that contains a term or condition that corresponds or is equivalent to the term or condition standing so approved but which is more favourable to the public servant than that term or condition,

the contract shall have effect as if the term or condition standing so approved (… the “approved term or condition") were substituted for the first-mentioned term or condition in paragraph (b) (the "unapproved term or condition").”

Subsection 3 of this section goes on to provide that,

“Where an amount is paid to the public servant concerned in purported compliance with the unapproved term or condition that is in excess of the amount payable to the public servant under the approved term or condition then—

(a) the public servant shall hold the overpayment in trust for the public service body, and

(b) the public service body shall recover the amount of the overpayment from the public servant, either directly or by a deduction taken from remuneration subsequently payable to that public servant or otherwise.”

Finally, subsection 10 provides that,

“…this section has effect notwithstanding—

(a) any other enactment,

(b) any pension scheme or arrangement,

(c) any other agreement or contractual arrangement, or

(d) any understanding, expectation, circular or instrument or other document”

The combined effect of the above legislative provisions is that not only does local management have no legal basis for providing enhanced terms for employees in their section, in such circumstances the Respondent is obliged by virtue of the legislation to recover the funds in the manner prescribed. While the Complainant may well have a legitimate expectation that he should be paid overtime, or more accurately retain the overtime payment issued to him, this expectation is defeated by part d of subsection 10 quoted above.

Finally, during the grievance process, the Complainant raised some issues as to whether he was actually engaged on grade 8 of the Respondent’s scale. In this regard he submitted that some of his duties, as evidenced in his job description, were more in accordance with grade 7. However, in the present case, it is apparent that the Complainant received and accepted the salary scale relevant to grade 8, presumably without protest.

In this regard, in the matter of Superwood Holdings plc v Sun Alliance & London Insurance plc [1995] 3 I.R. 303 Blayney J. quoted with approval the following passage from the decision of Budd J. in Coen v Employer's Liability Assurance Corporation [1962] I.R. 314:

“…the repudiating party cannot be allowed to approbate and reprobate He cannot thus be allowed to say: ‘I deny the existence of the contract which you say exists between us, but I also rely on a term of that contract …”

In this respect, the Complainant cannot accept part of the contract, being the salary scale, and thereafter seek to deny that the overtime provision in the same contract applies to him.

Having regard to the accumulation of the foregoing points, I find that the underpayment of wages alleged by the Complainant is not a “sum payable” under by virtue of his contract of employment. In such circumstances the remuneration in question does not constitute “wages” that are “properly payable” for the purposes of the impleaded Act.  As a consequence of the foregoing, I find that the complaint is not well-founded.

I find that the complaint is not well-founded.

Overpayment, Public Servant, Deduction