Complainant

Respondent

Parties

Mohamed Ishrath  Ismath

St. Vincent's Private Hospital

Representatives

Lian Rooney,                                              IBEC.

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-00064680-001

10/07/2024

This hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is potential for a serious and/or direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate and in order that matters might progress. It is noted that the giving of false statement or evidence is an offence.

The Specific Details of the Dispute are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 10th of July 2024.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of the evidence and submissions that I have rejected or deemed superfluous to the main findings.  I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held that a

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one.  Only broad reasons need be given…”. 

The Complainant was not represented and made his own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant relied on the submission outlined in the Workplace Relations Complaint Form. There was no further submission made and I was not provided with any other evidence in support of the Complainant’s assertion.  The oral evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that he was entitled to be paid a lump sum of money deemed to be a back payment for a period of time when the Complainant was employed in the workplace. He is making the case that the non-payment of this lump sum amounts to an unlawful deduction having been made from his wages/remuneration.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent was represented by the business representative group known as IBEC. The Respondent entity was represented in person by a HR Manager giving evidence on behalf of the Employer. The Respondent provided me with a comprehensive written submissions dated 30th of September 2024. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent’s evidence was challenged as appropriate by the Complainant.

The Respondent rejects that there has been an unlawful deduction.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced in the course of the hearing.

The Complainant started work at the Respondent private Hospital on 16 June 2012 in the position of Patient Catering Assistant. The Complainant stayed in the catering department for the duration of his employment. The HR Manger giving evidence on behalf of the Respondent – JJ - explained that there are about 130 catering assistants at any one time in the Hospital. JJ explained that the Respondent Hospital (though private and not publicly funded) tends to align itself with the HSE for pay scales and pay deals. I understand that in a process extending back to a pre-covid period, the HSE Hospitals were in a programme of considering the paygrades of HSE support staff which would include the catering staff. In early January 2023 the HSE determined that catering staff ought properly to be moved from band 4 to band 3 paygrade. This gave a lift in salary.

It was not until November of 2023 that the Respondent Hospital was in a position to implement the remunerative lift and the Hospital determined that anyone on the active payroll was entitled to a lump sum of money which represented the backpay for the difference going back to 2021. This was in line with what had happened in the HSE. Catering Assistants received a retrospective payment for the re-grading that took place for the years 2021, 2022, and 2023. The role of Catering Assistant moved from band four to band three, resulting in an increase in the rate of pay from band 4 to band 3.

When the retrospective backpay was issued to the Catering Assistants, the Complainant was on an authorised Career Break. The Complainant had applied for and received the one-year career break in July of 2023. Not surprisingly, the Complainant made some enquiries about the lump sum that his colleagues had received.

In December 2023, the Complainant emailed his manager at the time to enquire about the procedure to receive the retrospective pay increase and he asked if he would have to wait until next year. The Complainant’s manager confirmed that the payment would be made on the Complainant's return to work the following year. The Complainant replied to say he would like to receive the retrospective payment during his career break and the Respondent confirmed that the payment would only be made on the Complainant’s return to work at the Hospital in July 2024.  I have had sight of two emails dated 8th December 2023 and the 2nd of April 2024 which confirm this. I note that the lump sum is described as an arrears payment.

In March 2024 the Complainant wrote to his manager confirming that he would be returning to work as scheduled at the end of June 2024 following his career break.

The Respondent’s Career Break Policy was opened to me and the Career Break Confirmation Letter dated the 19th of May 2024 which issued to the Complainant clearly states

“During this period, the contract of employment is suspended. Service is regarded as continuous for the purpose of benefits such as pension entitlements, but the period of the break is not considered reckonable and therefore is not used for the calculation of hospital benefits”.

On 14 June 2024, the Complainant wrote to his Employer confirming his intention to resign. The Complainant stated in this communication:-

“Find attached the resignation form

What is in arrears payment for me is the lump sum paid to all catering staff who worked in year 2021/22/23

I was in career break was not paid..”

The Respondent wrote back to confirm that he would have had to be in service to receive the payment and at the time the payment was made in November 2023, the Complainant was not in service.

It is absolutely clear to me that had the Complainant returned to the workplace on the 1st day of July 2024 he would have been entitled to have his retrospective lumps sum paid to him. In fact, it seems to be the case that had the Complainant only completed one day of employment, he would have been back on the active payroll thereby triggering his right to the backdated lump sum.

As the Complainant was in alternative employment elsewhere, he was seemingly not in a position to return to the workplace at all.

The Complainant has made a vociferous argument concerning his entitlement to the lump sum payment paid to all his colleagues in November of 2023. He argues it represents a pay differential for a period of time already worked by him and to which he is automatically entitled. The Complainant argues that he was on a career break and had not resigned and was entitled to be considered an employee when the arrears payments were being made albeit out on an extended leave.

The Respondent has asserted that it can only operate to pay the arrears lump sum where the proposed recipient is on the payroll. I can understand that this is a workplace which sees a lot of coming and going. There might be seasonal workers, part time workers, students as well as staff with lengthy service. It was put to me that it would not be feasible to include Employees who had, for example, resigned in 2021 and 2022 and 2023.

The Respondent has attached some weight to the concept that there must be active engagement with the payroll system to qualify. I have some concern around this demand.

It is unavoidable fact that the Complainant was an employee when the arrears payments were paid. It is also unavoidable that the Complainant would have received a lump sum had he been physically attending work at the time. Instead, the complainant was on an approved leave. He had not resigned, and it seems likely that his name was still on the payroll system albeit he was not getting paid. Certainly, no P45 had issued. In fact, the terms and conditions for taking the career break include an  acknowledgement that:

Service is regarded as continuous for the purpose of benefits such as pension entitlements….

The payment in question related to a period of time from 2021 through to July 2023 when the Complainant was clearly an employee in the workplace. On balance I agree with his assertion that he was entitled to be paid the arrears accrued for that period of time.

I have looked at the Statutory definition of the word “Wages” and can find nothing therein which would preclude the Complainant’s assertion.  This was a sum payable…in connection with the employment. In the Act  “Wages”, in relation to an employee, means any sum payable to the employee by the employer in connection with the employment, including –

(a)   Any Fee, bonus or commission, or any holiday, sick or maternity pay or any other emolument referable to his employment whether payable under his contact of employment or otherwise, and….

The evidence presented did not disclose what the arrears payment might be, and I therefore cannot make a decision so as to include an exact sum of money. I have no doubt that the Respondent will have this information readily available to them.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00064680-001 – The complaint herein is well founded. The Complainant is entitled to be paid an Arrears of Wages package which was paid to his colleagues in November of 2023 and which related to the Complainant’s employment during 2021 and 2022 and 2023. As note, the Respondent has this figure to hand.