Complainant

Respondent

Parties

Dr. Aiman Ahmed Mohamed  Elamin

HSE

Representatives

The claimant represented himself 

 Paul Hume HR Director

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-00059306-001

09/10/2023

In his complaint form the claimant alleges that the respondent “ has not paid me or has paid me less that the amount due to me” – the claimant asserts that when he commenced employment with Galway University Hospital on the 26th.August 2019 as a surgical senior house office , Medical Manpower told him that he would be paid on the 3rd.point of the SHO scale and that he would not be getting incremental credit for the 5 years he had worked at Almana Hospital in Saudi Arabia  as it was a private hospital. Medical Manpower went on to tell him that they had contacted the Medical Director of the Hospital who had confirmed that Almana Hospital is not a teaching hospital. The claimant set out a catalogue of the ensuing exchanges with Medical Manpower about having his service reckonable for assimilation purposes on to the SHO scale. Ultimately the claimant asserted that when he pursued the matter with National HR he was advised that if he was not satisfied he could pursue a grievance.  The claimant contended that he later discovered that some of his colleague doctors who had worked with him in Almana Hospital were awarded incremental credit for their service with that hospital when they took up employment at different locations in Ireland.

The respondent denied any breach of the Act and contended that Almana General Hospital was not a teaching hospital and therefore experience at that hospital could not be recognized for incremental purposes.

 The claimant submitted that he  joined Galway University Hospital as a surgical senior house officer  and that he had been working for 8 years prior to that .He submitted that Medical Manpower advised him that he would be paid on the third point of the SHO scale and that his work for 5 years at Almana General Hospital in Saudi Arabia  would not be recognised for incremental assimilation purposes because it was a private hospital.  He was advised by the respondent that they emailed the Director of the hospital to check with him and the Medical Director said the hospital was not a teaching hospital. The claimant challenged this as he recalled nursing students with their tutor at the hospital and said that he told Medical Manpower that the hospital provided programmes for nursing students, medical lab personnel and pharmacy students. Further exchanges took place with Medical Manpower but there was no change in their position. Medical Manpower engaged with the claimant’s consultant about the matter but the dispute remained unresolved.The claimant asserted that his consultant started to” bully” him after he tried to discuss the matter with him. The claimant submitted that his consultant suggested that the claimant should be working for free. The claimant submitted that he tried to pursue the matter with National HR of the HSE who advised that if he remained unhappy with the decision taken locally he could pursue a grievance. The claimant said he then discovered that a colleague who had worked at Almana Hospital   had his service recognised in another hospital in Ireland and another colleague had confirmed that when he moved from Galway Hospital to another hospital in Ireland , his service at Almana Hospital  was recognised for incremental purposes. The claimant said that when he approached FLAC for advice he was told that if the hospital was affiliated with a medical science college it should be considered a teaching hospital. The claimant submitted that the nonpayment of the incremental credit was an ongoing breach of the legislation.

In his submissions to the WRC  on the 4th.March 2024 the claimant submitted copies of correspondence with Medical Manpower tracing the timeline of his grievance and the difficulties he was having with his consultant – culminating in a formal request for a transfer out of the  dept. he was working in .He asserted that the respondents reference to the Almana College being part of Alana Group of Hospitals and “ being dedicated to bringing standard – setting health care “    constituted proof that Medical Manpower knew that the College for Health Sciences belongs to Almana Group of Hospitals , that the hospital collaborated with the college and train their final year students and that the hospital was a recognised teaching hospital.

He asserted that when Dr Q was approached by the employer about the status of the hospital he mentioned that the college has no medical school. The claimant submitted that HSE regulations regarding salary scale states that “ An NCHD who was employed in a state (other than an EU member state) prior to taking up appointment in Ireland may be granted incremental credit where the experience was obtained in a recognised teaching hospital. Satisfactory evidence of same must be provided by the NCHD”. The regulation is general and he argued that this doesn't specify any type of hospital, which means that it includes all teaching hospitals either for doctors or nurses or even allied health care professions

 He submitted that Medical Manpower ignored 6 months of experience for no obvious reason, as they said you can't be working in 2 places at the same time and he explained that it is normal to work in 2 different places at the same time in Sudan but they decided to ignore those 6 months (worked in Emergency Affairs Coordination from 15/01/2012 to 15/07/2012).  The claimant indicated that he believed that the non-payment of incremental credit could be challenged under the Employment Equality Act.

The claimant referenced an email sent on 02/10/2019 from Dr E to Ms DeP and CC’d to Medical Manpower manager Mr K. Dr E explained that he worked and did part of his training in Ireland. He clearly stated that "there are a lot of doctors who were working in Almana Group of Hospitals who left to UK and Ireland and their training in Almana Hospital was counted for them." He explained that most of the consultants in Almana Hospitals have western qualifications, and they train and teach junior doctors. Dr E also stated that "there are always academic activities going on the hospital including weekly hospital wide activities but also departmental meetings." The claimant asserted that this email confirmed what he told Medical Manpower that doctors who worked in Almana Hospital get incremental credit for their experience there.

 The claimant was reluctant to disclose the names of his colleague comparators – given the indication by the respondent that they would consider his submissions on this matter if they knew the identity of comparators  the claimant submitted  the names of 2 of his  colleagues who worked in Almana Hospital and got incremental credit for their experience when they joined the  HSE: I. Dr A  joined HSE at Our Lady’s Hospital in Navan in July 2014. II. Dr B joined HSE at Midland Regional Hospital in Mullingar in October 2017.

The claimant submitted that in considering all facts and evidence provided, he believed that he had  provided  sufficient documentary evidence to support his claim. He submitted  that he  deserved a higher point on the salary scale when he  joined HSE in Galway University Hospital in 2019, and considering that all of his “ colleagues who worked in Almana Hospital in Saudi got a higher salary than me, and as this is an ongoing issue which has been affecting all my contracts since 2019 including my recent contract, I am kindly requesting to get my salary fixed and get paid for all arrears as per equal pay legislation”.

In a submission furnished on the 7th.May 2024, the claimant submitted that as Almana hospital trains final year student of the college , this constituted satisfactory evidence that it is a recognised teaching hospital. The claimant again  referenced  a further grievance about the non- recognition of 6months work experience when he was assigned to Emergency Affairs Coordination back in 2012.He disputed that GDPR applied to the named doctors in his previous submission and contended that the respondent  could have invoked the Freedom of Information Act 2014 to gain access to the facts in relation to his claims about the difference in  treatment of his medical colleagues.

The claimant referred to a further colleague who received incremental credit for his experience in Almana hospital and consequently started on a much higher scale than the claimant. The claimant indicated that he believed he had grounds for invoking the provisions of the Employment Equality Act and pursuing an equal pay claim.The claimant submitted that he had provided names and working addresses of 3 colleagues and had provided sufficient evidence to support his claim.

The following final responding submission was received from Dr.Elamin on the 24.th.Oct. 2024 – which was issued in response to the respondents final submission on the 16th.October:

“Ms. F mentioned that Mr. H contacted Almana General Hospital twice (without specifying the dates) but did not receive a response. In 2019, Galway Medical Manpower contacted Almana Hospital's medical director via email, using address found on the hospital's official website. They had the opportunity to contact the hospital officially through the same method but chose a more direct approach, which resulted in no response, to allow them to maintain their position.

1                    Regarding the other 3 doctors who got incremental credit for their experience at Almana Hospital and who were quoted by me:

2                    At the hearing session on June 18th, Ms. F said that they contacted Our Lady's Hospital in Navan and Midland Regional Hospital to confirm what I mentioned. Both hospitals replied by saying that they are following HSE policies and will not comment on individual cases due to GDPR. Although that may sound like a proper reply, Galway Medical Manpower could ask a vague question such as: "Does your hospital award incremental credit for any experience at Almana Hospital? This question was suggested by the adjudication officer at the hearing session, and Galway Hospital agreed to ask it. However, they didn't follow through and chose to ignore the suggestion.

3                    Galway Medical Manpower did not comment on the status of the third doctor, Dr. C  who is working currently at Galway Hospital, he worked with me at Almana Hospital in Saudi Arabia and was my housemate. He is willing to share this information, and his name was mentioned in my correspondence dated May 7, 2024. Dr.C   received incremental credit for his experience at Almana Hospital, which explains why his salary is higher than mine despite my having more experience. The hospital can check his details but they ignored this fact to maintain their position.

4                    Please note that I did not promise to contact any of the three doctors to confirm their salaries. They have already told me personally that they received incremental credit for their experience at Almana Hospital, and they informed me when and where they started their employment with the HSE (all mentioned in my correspondence dated March 4, 2024, and May 7, 2024).

5 Regarding contacting Almana Hospital, GUH claimed that they tried to reach Almana Hospital; however, the number they used is incorrect, as the hospital is in Saudi Arabia and the number should start with +966. They contacted +920033440. Regarding status of the hospital: Almana Hospital trains final-year students of Mohammed Al-Mana College for Health Sciences (MACHS), and this point was mentioned and confirmed by the medical director of Almana Hospital in an email to Ms. DP dated September 6th, 2019. I believe this is satisfactory evidence that the hospital is a recognized teaching hospital”.

In conclusion:

“I believe I have established a prima facie case of unequal pay, which I contend represents indirect discrimination. The employer has failed to prove otherwise, particularly considering the events of 2019. At that time, the medical manpower manager informed me that he had involved my consultant in the issue and advised me to discuss it with him. The consultant then stated, "As an international graduate, you should be working for free for 6 months and when we are happy, we will pay you." He also said, "Aiman, you are getting paid, and I am sorry I can't change that. I wish I could, but I can't."

 The claimant submitted that although he reported this conversation to Medical Manpower, that consultant was promoted a few months later and became clinical director. This promotion could be seen as the organization endorsing or at least not addressing discriminatory attitudes, as his statement about working for free for 6 months could be viewed as exploitation of international graduates.

The claimant submitted that it is obvious that Galway University Hospital are trying to put international graduates at a particular disadvantage without any justification of this practice. As I mentioned in my case submission, one of my colleagues had his salary scale increased when he moved to another hospital. The medical manpower of the new hospital informed him that Galway Hospital had calculated his salary scale incorrectly, and he received payment for arrears.

Now, I am kindly requesting that my salary be fixed and that I be paid for all arrears (including overtime).”

The respondent submitted as follows on the 27th.February 2024:

The case relates to a claim under section 6 of the Payment of Wages Act, 1991

Claim:

Dr. Elamin claims that he was appointed on the incorrect point on the Senior House Officer (SHO) salary scale based on previous employment, when he commenced employment as an SHO in Galway University Hospital. 

1.       Respondent’s Position

·       Dr. Elamin was employed as an SHO in Galway University Hospital from 26th August 2019 to 11th January 2021 incl. 

·       Dr. Elamin commenced on the 3rd point of the HSE SHO salary scale based on his experience in teaching hospitals as per NCHD contract.

·       As per contract issued to Dr. Elamin, Section 16, Incremental Credit, sub section h,

An NCHD who was employed in a state (other than an EU member state) prior to taking up appointment in Ireland may be granted incremental credit where the experience was obtained in a recognised teaching hospital.  Satisfactory evidence of same must be provided by the NCHD. 

*Appendix I

·       Dr. Elamin’s previous experience in Almana General Hospital was not included for incremental purposes based on an email submitted to recruitment officer, dated 5th September 2019, from Dr. T Q. A, MD, MBA, CEO and Medical Director of AlMana Group Hospitals, Saudi Arabia.  

*Appendix II

·       Dr. Elamin was advised by email on the 5th and 9th September 2019 by Ms. DP of the emails received from Dr. TQA on 3rd, 5th and 6th September 2019 confirming that Almana General Hospital was not a teaching hospital and therefore experience in this hospital could not be recognised for incremental purposes. 

*Appendix III

·       HSE records show that J K, Medical Workforce Manager in Galway University Hospital emailed Dr. Elamin on 11th September 2019 further confirming that “we must abide by the criteria as set out in the Department of Health” and would not be in a position to appoint Dr. Elamin on a higher point of the SHO pay scale unless appropriate documentation was provided to the Medical Workforce Department office.

*Appendix IV

·       Dr. Elamin was appointed to the fourth point of the HSE SHO salary scale on 26th February 2020 based on his experience.  

*Appendix V

·       On 25th September 2019, Ms.DP, emailed Dr. AOE, Deputy Medical Director in Almana Hospital Dammam which was a contact provided by Dr. Ahmed Elamin requesting clarification whether Almana General Hospital was a teaching hospital.  Ms. DP followed up on this email again on 2nd October 2019.  On 2nd October 2019 Dr. AOE replied stating “Almana is not affiliated to a University”. 

*Appendix VI

Conclusion

·       Management’s position is that incremental credit to all NCHD’s is awarded as per  Section 16, Incremental Credit, sub section h of the NCHD contract:

An NCHD who was employed in a state (other than an EU member state) prior to taking up appointment in Ireland may be granted incremental credit where the experience was obtained in a recognised teaching hospital.  Satisfactory evidence of same must be provided by the NCHD. 

Dr. Elamin was appointed on the 3rd point of the scale based on previous experience as his contract.

“Management respectfully ask that this position is held by the WRC”. 

The respondent submitted as follows on the 12th.April 2024 :

 Dr. Elamin claims that he was appointed on the incorrect point on the Senior House Officer (SHO) salary scale based on previous employment, when he commenced employment as an SHO in Galway University Hospital. 

2.       Additional Submission  on Complaint submitted by Dr. Elamin on 4th March 2024

Point 1:    Dr. Elamin was advised by email on the 5th and 9th September 2019 by Ms. DP of the emails received from Dr. TAQ on 3rd, 5th and 6th September 2019 confirming that Almana General Hospital was not a teaching hospital and therefore experience in this hospital could not be recognised for incremental purposes.  Appendix II, Appendix III

·       Point 2:  As above, Dr. AL confirmed it is not a teaching hospital and does not have a medical school.  Appendix II

·       Point 3:  The contract clearly states Section 16, Incremental Credit, sub section h:

An NCHD who was employed in a state (other than an EU member state) prior to taking up appointment in Ireland may be granted incremental credit where the experience was obtained in a recognised teaching hospital.  Satisfactory evidence of same must be provided by the NCHD.  Appendix I

Incremental credit can be granted when experience is obtained in a recognised teaching hospital.

·       Point 4:  As per Appendix V, Dr. Elamin was granted 6 months experience for dates 15.01.2012 to 15.07.2012. 

·       Point 5:  As per email referred to in Appendix VI, Dr. E confirmed that the “Almana is not affiliated to a University”. 

·       Point 6:  Both hospitals, Our Lady’s Hospital in Navan and Midland Regional Hospital were contacted by the Medical Workforce Manager who confirmed that it is HSE policy to only provide incremental credit to those that have worked in a recognised teaching hospital and confirmation of this is always sought.  Both hospitals advised that they were not in a position to comment on individual doctors’ details due to GDPR. 

Conclusion

·       In summary, every effort was made by this office to confirm Mr. Elamin’s work experience to be granted incremental credit, this is evident.  As per above, it was confirmed in writing that Almana General Hospital is not a teaching hospital or affiliated to a University and therefore this experience could not be recognised for incremental credit purposes.

At the second hearing of the matter on the 18th.June 2024, the respondent undertook to make contact with Almana Hospital with a view to clarifying their up to date status as a teaching hospital or otherwise. An update was sought by the WRC on the 17th.Sept. 2024 and 

the following final submission was received from the respondent on the 16th.October 2024

“Further to your email dated 17th September to Mr.H, please find below response to queries raised at WRC hearing on 18th June 2024.

HSE clarification on any communication with Almana General Hospital:

Mr. H contacted Almana General Hospital via their web page enquiry section on two occasions requesting confirmation that Almana General Hospital is a recognised teaching hospital, he did not get a response to any of his queries.

HSE clarification that 3 Doctors quoted by the claimant were awarded incremental credit on the basis that Al Mana General Hospital was deemed by Medical Manpower to have the status of ‘a recognised teaching hospital’:

Both hospitals, Our Lady’s Hospital in Navan and Midland Regional Hospital where the NCHDs who were identified by Dr. Elamin were employed were contacted by the Medical Workforce Manager in GUH and they both confirmed that it is HSE policy to only provide incremental credit to those that have worked in a recognised teaching hospital.  Due to GDPR they were not in a position to comment on individual cases.

Dr. Elamin advised at the WRC hearing on 18th June 2024 that he would arrange to contact his colleagues to request them to provide confirmation from the hospitals where they worked that they were awarded incremental credit for their employment as a Doctor in Almana General Hospital.

Clarification that Almana General Hospital is part of a Group of Hospitals and that Almana General Hospital trains final year students of medical schools and nursing students bringing the hospital within the definition of ‘recognised teaching hospital’:

Medical Manpower GUH contacted Almana Group of Hospitals by telephone on 3 separate occasions (tel. number +92 00 33 44 0) but the calls were disconnected automatically following a c. 15 minute wait on-hold each time.

I have reviewed the evidence presented at both hearings and noted the respective positions of the parties. I have taken account of the extensive written and oral submissions made by the claimant and the HSE.

I note that the claimant’s complaint was first raised in September 2019 – I accept the claimant’s reference to an ongoing issue  and in accordance with the principles set out in McDermott v HSE accept that every distinct and separate alleged  breach of the Act  -  can amount to an ongoing  contravention and consequently I deem the complaint to be in time – the claimant’s assimilation on to the HSE scales  is reviewed on a biannual or annual basis as and when he is rotated from one Dept. or hospital to another.

I note that many of the allegations made by the claimant in relation to the alleged less favourable treatment vis a vis his colleagues who also worked at Almana Hospital  could  be characterised  as  an employment equality dispute  - however – while the claimant suggested less favourable treatment  - he did not link it to one of the protected grounds.Other complaints raised by him are of an  industrial relations nature . The complaint was referred under the Payment of Wages Act1991  and consequently  my considerations are confined solely to the matter of alleged breaches of that Act .

The claimant asserts that the failure to award him incremental credit for his service at Almana Hospital  constitutes a breach of the Act in circumstances where up to 3 of his colleague  medics had their service at the hospital recognised and were assimilated onto a higher point on the SHO scale when appointed in Ireland by the HSE .I acknowledge that the  claimant is frustrated with what he perceives as a lack of effort on the respondent’s part to establish whether or not this hospital constitutes a recognised teaching hospital. For their part , the employer is adamant that they have acted correctly in finding that the hospital is not a teaching hospital for medical students and assert that this is how they have always interpreted Section 16 of the NCHD contract.I note from their final submission that the respondent is contending that they were unable to obtain a response on this matter  from the hospital .I further note that the employer appears to have adopted differing grounds for denying incremental credit – from at the initial stages of indicating that because Almana Hospital is a private hospital  , incremental credit could not be conceded  to a position    where “ Almana is not affiliated to a University”  and later to a position  that the hospital “ is not a teaching hospital and does not have a medical school “.

Section 16(h) of the NCHD contract states : An NCHD who was employed in a state (other than an EU member state) prior to taking up appointment in Ireland may be granted incremental credit where the experience was obtained in a recognised teaching hospital.  Satisfactory evidence of same must be provided by the NCHD.

This provision places the onus firmly on the NCHD to provide satisfactory  evidence that the relevant hospital is a recognised teaching hospital.In such circumstances I am obliged to find that the crediting of  service at Almana Hospital service for assimilation purposes  on  to the SHO scale cannot be deemed to be wages properly payable when the claimant has been unable to provide the required evidence that  Almana  Hospital constitutes  a recognised teaching hospital .Accordingly , I do  not accept that the respondent is in breach of the Payment of Wages Act.

I find the complaint is not well founded