ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00048724

Parties:

Complaint:

Date of Adjudication Hearing:  26/06/2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint pursuant to Section 27 of the Organisation of Working Time Act 1997 was referred under Section 41 of the Workplace Relations Act 2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 6th November 2023.  Following delegation to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This complaint was heard at Lansdowne House on 26th June 2024.  The Complainant was represented by FÓRSA.  The Respondent was represented by IBEC and the Deputy HR Director was in attendance.  Submissions and supporting documentation was received from both Parties.  The hearing was held in public and the Parties were made aware that their names would be published within this decision.  Most of the facts are uncontested and sworn evidence was taken from the Deputy HR Director in relation to one issue in dispute.  The Parties were afforded a period of time to reflect on the matter and/or furnish an agreed amount of Sunday time worked within the cognisable period.  This was received on 27th August 2024 along with confirmation that a decision is required.  All of the submissions, documentation and evidence have been fully considered herein.

Background:

The Complainant was employed by the Respondent as a Hospital Chaplain since 1999 on a salary of €5,431 gross monthly.  On foot of a query as to his entitlement to Sunday premium payment, the Respondent commenced payment of Sunday premium from 6th November 2023.  The Complainant contends that the failure to pay Sunday premium up until that date constituted a breach of Section 14 of the Organisation of Working Time Act 1997.  He sought compensation for the economic loss of same within the preceding cognisable six-month period and breach of the Act.  The Respondent contended that this payment was now being made in “good faith” and the Complainant had no pre-existing contractual entitlement to Sunday premium payment and there was no breach of the Act.

Summary of Complainant’s Case:

The Complainant has been employed by the Respondent as a Chaplin at St. Vincent’s University Hospital since 1999.  Amongst other duties, his role included the provision of end-of-life spiritual support to patients.  Under his contract of employment, he was required to work on weekends, but his contract was silent in relation to the provision for Sunday premium.  In June 2022, he wrote to the Respondent seeking clarification of his contractual entitlement to various allowances including Sunday premium.  In this respect, the HSE Guidelines on Terms and Conditions of Employment provides as follows: “Sunday Work - Sunday work is normally defined as any roster which commences between midnight on Saturday and midnight on Sunday.  An employee who works a 5 over 7 roster and is scheduled to work on Sunday is entitled to single time extra for each hour worked.”  Following a lengthy engagement process, by email dated 3rd November 2023, the Complainant was advised in relation to his entitlements including Sunday premium as follows: “Following correspondence with the HSE, it has been decided that Sunday premium in respect of single time extra will be payable to Chaplains employed by SVUH effective Sunday 6th November 2023.”  The Complainant has been paid accordingly since 6th November 2023, also being the date of referral of this complaint to the WRC.  

On behalf of the Complainant, it was submitted that this email and commencement of payment of Sunday premium constituted an acknowledgement of his contractual entitlement to a Sunday premium payment from the commencement of his employment.  The Complainant refuted the Respondent’s position that this payment constituted a “good faith” payment from its own funds.  Aside from this acknowledgement, it was submitted that the Respondent had failed to pay the Complainant his Sunday premium entitlement in circumstances where his contract did not make express provision for same as was the case in Trinity Leisure Holdings Limited t/a Trinity City Hotel -v- Sofia Kolesnik and Natalia Alfimova 2019 IEHC 654.  Accordingly, he seeks compensation for the economic loss of same within the preceding cognisable period and breach of the Act [limited to the six-month referral period pursuant to Section 41(6) of the Workplace Relations Act 2015].  He would have been entitled to a Sunday premium payment of €2,627 based upon the time he had worked on Sundays within the cognisable period at double time in accordance with the Hospital Chaplains scale. 

Summary of Respondent’s Case:

Respondent’s Position

By way of background, St. Vincent’s University Hospital is located at Elm Park, Dublin 4 and is one of the world’s leading academic teaching hospitals providing front-line, acute, chronic and emergency care across over forty different medical specialities in an integrated multi-hospital campus.  The Complainant is a longstanding employee engaged as a Chaplain.  The Hospital is funded under Section 38 of the Health Act 2004 by the HSE and accordingly, the Respondent is obliged to operate under the HSE’s governance in relation to remuneration.  It is common-case that on foot of HSE guidance, the Respondent commenced payment of Sunday premium to the Complainant from 6th November 2023 from its funds as opposed to HSE funding usually used to discharge remuneration.  However, it was contended that this payment was being made in “good faith” and did not constitute an acknowledgement of any pre-existing contractual entitlement to Sunday premium.  In this respect, reliance was placed on Paragraph 11 of the applicable HSE Circular 013/2006 dated 1st September 2006 containing no provision for a separate Sunday premium payment, and the inclusion of Sunday work within the Chaplain role is clearly and unambiguously set out as follows: “The Chaplain shall carry out the Chaplain’s duties during alternate periods rotating on a roster system with other Chaplains to the desired intent and purpose that there shall be at all times, insofar as practicably possible, a Chaplaincy service both day and night for the Hospital.  The said periods shall include nights and weekends sa(v)e that the Chaplain (except in the case where emergency cover is necessary) shall not be required to carry out his/her duties for more than 156 hours in any period of four successive weeks.  Overtime is not payable to Chaplains in respect of any such work.  The Chaplain may, as part of such rotation procedure, also have to be available on a Bank Holiday in which event the Chaplain shall be given an alternative holiday in lieu.  Entitlements in relation to public holidays shall be in accordance with the Organisation of Working Time Act, 1997”.  This clause is mirrored in the Complainant’s two contracts of employment issued to him in 2001 and 2006, as signed by him and furnished herein.  It was contended that the reference to ‘weekends’ within the clause naturally included Sundays and thus had been incorporated into his contractual salary in keeping with caselaw on Sunday premium.  Without prejudice to this argument, it was further submitted that any entitlement to Sunday premium payment only arose after 6th November 2023 following receipt of the HSE guidance.  On the basis of the aforesaid, the Complainant has been correctly paid throughout his employment, in line with his contract, national agreements and HSE pay scales.  Either way, there has been no breach of the Act and this complaint is not well-founded.

Direct Evidence of Deputy HR Director

The Deputy HR Director gave evidence under oath in relation to the disputed issue of whether the payment of Sunday premium to the Complainant from 6th November 2023 constitutes an acknowledgement of his contractual entitlement.  She confirmed that on foot of the Complainant’s enquiry as to his entitlement to various allowances in June 2022, the Respondent had made various enquiries regarding his entitlements including from the HSE.  In a reply from the HSE to the Head of HR Engagement dated 21st October 2023 (amongst other allowances not subject to this complaint), it was confirmed that Circular 013/2006 is all that is nationally agreed and: “We understand that based on past enquiry on file, that a Sunday premium may fall to be paid where a chaplain works on a Sunday (that is in accordance with HSE Terms and Conditions)”.  By email dated 3rd November 2023 as referred to above, the Head of HR Service Engagement advised the Complainant in relation to the various allowances queried and regarding Sunday premium stated: “Following correspondence with the HSE, it has been decided that Sunday premium in respect of single time extra will be payable to Chaplains employed by SVUH effective Sunday 6th November 2023.”  This guidance had never been provided to the Respondent prior to that date.  However, the Head of HR Engagement had acted in good faith and made a decision to apply a Sunday premium at single time extra (double time) effective from 6th November 2023 to Chaplains and instructed the Finance Director accordingly.  It was confirmed that the Respondent is funding this payment directly and there is no funding in place to discharge any payments to the Complainant or similarly affected staff prior to 6th November 2023.  

Under questioning, the Deputy HR Director acknowledged that the Complainant’s contract did not include any express provision for Sunday premium.  She was unable to speak to whether the payment of Sunday premium was envisaged within the contract.  She was unable to provide any legal rationale for the Respondent’s contention that the Complainant had not been contractually entitled to payment of Sunday premium prior to 6th November 2023, notwithstanding the decision to make the payment from that date.  She agreed that there was no reference in the inter partes correspondence to the payment constituting a “good faith” payment or similar or consent to same.

Findings and Conclusions:

Section 14(1) of the Organisation of Working Time Act 1997 provides for Sunday premium as follows:

“14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely-

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

(b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d) by a combination of two or more of the means referred to in the preceding paragraphs.”

As the Complainant’s employer it was incumbent upon the Respondent to ensure that he was paid in accordance with his contractual and statutory entitlements.  However, it was guided by the HSE as to employees’ entitlements as the funder of remuneration.  On foot of a query raised by the Complainant in June 2022, on 21st October 2023, the Respondent received guidance from the HSE to the effect that an additional Sunday premium payment “may fall to be paid” to Hospital Chaplains.  Instead of contesting this matter, it commenced payment of Sunday premium to its Chaplains including the Complainant from 6th November 2023.  In the absence of any evidence to the contrary, I cannot accept the Respondent’s contention that this payment is a “good faith” payment and does not constitute acknowledgment of a pre-existing contractual entitlement.  As a matter of contract, the Respondent’s email of 3rd November 2023 is unequivocal and cannot be construed as anything other than an acknowledgement of the Complainant’s entitlement to Sunday premium payment.  Further consideration of the wording of the contracts is therefore unnecessary.  It follows that the Respondent was in contravention of Section 14 of the Organisation of Working Time Act 1997. 

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in accordance with the requisite redress provisions.  For the aforesaid reasons, I find this complaint to be well-founded.  Section 27(3) of the Organisation of Working Time Act 1997 provides: “A decision of an adjudication officer under Section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”  I direct payment of a sum of €2,627 in compensation to the Complainant as being just and equitable in all the circumstances.  I note that an award of compensation of up to two years’ remuneration may be awarded.  However, I have limited compensation to the economic loss suffered within the cognisable period.  This is in circumstances where there has been a lack of legal certainty regarding contractual provision for Sunday premium, the Respondent had not been alerted to any issue prior to June 2022 and instead of contesting the Complainant’s entitlement, had commenced payment as soon as it was confirmed.

Dated:   31st October 2024.

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Entitlement to Sunday premium payment under Section 14 of the Organisation of Working Time Act 1997 – whether “good faith” payment constitutes acknowledgment of entitlement