Worker

Employer

Parties

A Worker

A Private Hospital

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 - 00001978

13/11/2023

The Worker became an employee of the Employer private hospital in 2011. This followed on from a period of his having worked for a contractor assigned to the Employer.

The Worker had a 43-hour working week before starting as an employee. When he became an employee, he continued on a 43 hour working week with a fixed annual salary.

This arrangement continued until 2017 when he was promoted a grade and put down to 39 hours. His promotion meant he remained on the same salary but worked less hours.

The Worker made written an oral submissions. He believes he was always supposed to be working a 39 hour week and was essentially working unpaid overtime every week. His promotion was arranged to resolve the issue going forward but it did not make up for the 6 years that he worked extra hours.

The Employer had in place an agreement that its pay and terms and conditions were aligned with the HSE. For whatever reason this was not applied to him. He was issued with three different contracts in 2011 but these contradicted themselves on the issue of hours of work.

The Worker is looking for the entire period of overtime backdated. Including a payment for annual leave entitlements not properly calculated and for this payment to be pensionable.

The Employer made written and oral submissions. They dispute the claim in its entirety. The Worker continued on the hours he had performed as a contractor. While there is a collective agreement in place it is to endeavour to align terms and conditions with the HSE. The Worker’s terms and conditions were not fully aligned but this cuts both ways and he enjoyed a better leave entitlement than the HSE. 

While there were issues with the contracts issued to the Worker they all stated the hours he was expected to work clearly and the only version of the contract signed by both parties was clear that his normal working week was 43 hours.

The Worker only raised a grievance about this is 2022 and in a gesture of good will they offered him a payment of €6065 to resolve matters.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

I understand that the Worker feels genuinely aggrieved in how his working pattern differed from his colleagues in the years between 2011 and 2017. His hours appear to have been in contradiction of both the norms of the Employer and industrial agreements.

In any recommendation I must be guided by the principals which underpin these Acts, that is to make further and better provision for promoting harmonious relations between workers and employer.

I am conscious that there is a power discrepancy between workers and their employers and workers can lack knowledge regarding their rights. This act sets no time limits and on the basis of the legislation there is nothing stopping a worker pursing a historic claim via this act.

Despite the above, where a dispute exists, I am of the view that there is an onus on the Worker to escalate the matter within a reasonably timely matter.  Otherwise, the employment relationship becomes dogged with open ended and unresolved issues.

The appropriate course of action was for the Worker to engage with the Employer after he realised there was a difference in how he was treated. He ought to have done this through the Union he says had the collective agreement to align his pay and conditions with the HSE. If the Employer was in breach of that agreement then that breach should have been challenged through this act, at the time the breach occurred or shortly thereafter.

While he did raise issues, he failed to properly escalate the matter through the grievance procedure or this Act, in a timely matter.

I am of the view that conducting an investigation into a potential overtime entitlement which ended 6 years before it was even referred to the WRC would not be in line with the principles set out in this act.

The Employer had previously offered a payment of €6065 as an act of goodwill. I believe such a payment should be made to the Worker on the basis of a full and final settlement of this claim.