ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00003871
Complaint(s)/Dispute(s) for Resolution:
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
Date of Adjudication Hearing: 20/10/2016
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Attendance at Hearing:
A Health Sector Employer
The Complainant, a medical doctor, was employed by the Respondent, a private hospital, for a six month period during which she went on Maternity Leave. A dispute exists regarding pay while on Maternity Leave. The matter was received by the Workplace Relations Commission on 4th July 2016. A hearing into the dispute took place on 20th October 2016.
Complainant’s Submission and Presentation:
The Complainant provided a detailed written submission. The Complainant, a medical doctor, was employed by the Respondent, a private hospital, as a Registrar from 13th July 2015 to 10th January 2016.
It is the Complainant's case that doctors who practise medicine in Ireland are required to participate in training programmes that are funded by the Health Service Executive (HSE). These programmes are part of the process of becoming an independent practitioner of medicine in Ireland. As part of these training programmes, doctors do work on a fixed-term contract basis in different hospitals throughout the country. In all cases the cost of compensating a trainee doctor is borne by the HSE and provided to the hospital for payment to the trainee doctor.
The Complainant was employed in the Respondent hospital as part of a programme of training which is overseen and funded by the HSE in partnership with a university and a professional body. It was the Complainant's case that the Complainant, as a trainee doctor participating in a HSE funded training scheme, should be considered a Non Consultant Hospital Doctor (NCHD) for the purposes of her contractual entitlements and that the 2010 NCHD Contract should apply to her employment.
This NCHD contract stipulates that, as NCHDs are required to undertake fixed-term contracts, those who go on maternity leave during a fixed-term placement are entitled to a full 26 weeks of paid leave, even when the terms of their contract expires before they have completed this period of leave. However, in the Complainant's case the Respondent did not pay for maternity leave beyond the expiry of her contract's finish date.
When the Complainant commenced her employment on 13th July 2015she signed a contract that was, according to the Complainant, "developed" by the Respondent. This contract was not the standard 2010 NCHD Contract.
The Complainant referenced the preamble to the 2010 NCHD Contract which states inter-alia "Where there is any conflict between any provision of the contract document and any prior instrument, the provision in this contract document should prevail." The preamble goes on to outline to whom the term NCHD refers. The Complainant submitted that she should be considered a NCHD and therefore her employment must be governed by the terms of the 2010 NCHD Contract.
It is the Complainant's case that when a trainee is placed in a private institution as part of a HSE Specialist Training Programme, the private institution is provided with a payment by the HSE for the salary and other payments due to the trainee as per the 2010 NCHD contract. The private institution then pays the trainee these funds.
The Complainant's submission highlights similarities between the contract provided by the Respondent and the 2010 NCHD Contract, hours of work, 39 hours in both; salary scales; annual leave entitlements; Public Holiday entitlements.
The submission goes on to say that the position of the Complainant had been affirmed in email correspondence with the HSE, which stated, "If you started your maternity leave which is 26 weeks with the Respondent it is the responsibility of the Respondent to pay you until the 26 weeks are exhausted." Further the Complainant submitted that the matter was reviewed by another HSE arm which stated in an email, "Given that the Complainant last worked in Respondent Hospital prior to going on Maternity Leave, you should direct your query to them."
The Complainant believes that given the above information she should be characterised as a NCHD governed by the 2010 NCHD Contract and therefore entitled to the terms and conditions provided in this contract.
According to the Complainant's submission she was compensated in accordance with the 2010 NCHD Contract Maternity Leave Entitlements from 1st September 2015 to the final day of her contract's term with the Respondent which was 10th January 2016, a period of 18 weeks and six days, however the Complainant did not receive maternity benefits from 11th January 2016 to the end of her 26 week period of payment, 29th February 2016, a period of seven weeks and one day.
The Complainant believes the outstanding monies amount to €7,446.89, consisting of €6,052.86 salary, Living Out Allowance €440.64, pay for annual leave €953.39.
In summarising, the Complainant's position is that this employment was covered by the 2010 NCHD Contract which entitles an individual to get maternity pay from their employer at the time the maternity leave commences, for a full 26 weeks, including cases when the term of the contract expires.
Respondent’s Submission and Presentation:
The respondent provided a detailed written submission. The Respondent is an independent, not for profit health care provider, providing care across a range of disciplines, employing 700 full time staff. The organisation derives the bulk of funding from the various health insurers, with a modest income stream from fundraising. There is no other income stream of note. The organisation is required to manage costs while maintaining our high standard of care & infrastructure of the Hospital and other premises
From around 2008, the HSE in common with a number of employers imposed pay cuts on staff. The Respondent did not follow suit and rather than interfere with the terms of existing staff introduced new rates of pay for new entrants and promotional posts. These scales had higher rates of pay across the board than the HSE Salary Scales at that time. The autonomy of the Respondent to take such a measure was challenged by a union in the Labour Court and the Court found in favour of Respondent in that it is entitled to manage its own organisation and set the terms and conditions of staff .
The Complainant was employed by the hospital from the 13th July 2015 to 1oth January 2016. Prior to her employment the Complainant was issued with a contract of employment by the Respondent. The contract was issued by the Human Resources Department of the hospital and clearly stated the terms under which she would be employed. The Complainant accepted these conditions of employment and duly commenced employment.
The Respondent disputes the claim that the Complaint's employment was or should be governed by the HSE 2010 NCHD Contract on a number of grounds:
The Respondent is not party to the 2010 NCHD Contract and has no input to or control over the terms of the same contract, or the terms and conditions of any staff in the HSE.
The hospital bears the full costs of employing the registrars allocated through the training programme, without funding form anyone.
In September 2013 the Labour Court ratified the prerogative of the hospital to set its own pay rates as an independent entity, subject to its own operational realities.
Registrars assigned to the hospital receive a hospital contract, as did the Complainant and this governs their employment by the hospital. The obligation of the registrar to the hospital as an “employee” and the hospital to them as “employer” ceases on the cessation of the fixed term contract.
Specifically in relation to Maternity Leave, the hospital is compliant with the terms of the Fixed Term Workers Act which obliges payment for the duration of the fixed term contract. Legal obligation does not extend the payment of maternity cover beyond that point.
In 2013 NERA confirmed that the hospital is compliant with the Fixed Term Workers Act .
Since 2008, the hospital has employed 446 similar registrars with its own contracts of employment outlining terms and conditions, without issue raised.
In conclusion it is the position of the Respondent that they have acted in accordance with the legislation that governs contracts. They do not accept that the Complainant's employment by them should have been governed by a HSE contract. The Respondent is a separate, distinct entity not governed by and without influence over the HSE. Payment of a period of maternity leave that falls outside the end date of a fixed term contract, would be cost-increasing and have a substantial effect on the hospital, and is outside the obligations of the legislation.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Issues for Decision:
The issue for decision in this case centres on the question of what was the employment status of the Complainant when she was employed by the Respondent hospital. Was she employed under the 2010 NCHD Contract, as argued by the Complainant or was she employed under the hospital's own fixed-term contract, as argued by the Respondent?
If the Complainant's argument holds that the 2010 NCHD Contract applies to her then she is covered by the Maternity Leave clause of that contract which states, "NCHDs are entitled to maternity pay from their existing employer for a full 26 week period, including circumstances where the contract expires prior to the end of their maternity leave."
If the Respondent's argument holds that the hospital's own contract applies to her then she is covered by the applicable Maternity Leave Policy which states, under Employment Status, the "Hospital does continue to pay employees for the duration of their 26 weeks maternity leave (or to expiration of afixed-term contract expiring during the period of leave)."
Findings and Reasoning
The Complainant agreed to and signed a Fixed-term Contract with the respondent hospital which states in the opening paragraph, "You will hold this post for a period of six months from 13th July 2015 to the 10th January 2016, after which your employment in this post will terminate." The second paragraph of the contract states, "The objective ground for issuing a fixed term contract is that this post is a training post and therefore not of indefinite duration."
Section 2 of the Protection of Employees (Fixed-term Work) Act 2003 defines a fixed-term employee as:
“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event ….."
An employee on a fixed-term contract is entitled to full maternity leave. However, if her fixed-term contract ends before the last day of maternity leave, this counts as the last day of maternity leave. This means that if the fixed-term contract ends during maternity leave, then the employee’s contract of employment terminates on that date.
In this instance the Complainant signed a fixed-term contract with the Respondent hospital which differs from the 2010 NCHD Contract in regard to pay while on Maternity Leave. As a self-funding entity, which does not receive a subvention from the HSE for the pay of registrars, the Respondent is entitled to have and apply its own policies. The Complainant received payment in full in respect of her contractual maternity leave entitlements. The Respondent is compliant with the legislation governing fixed-term contracts and the Payment of Wages Act.
Having considered the matter carefully, I accept the Respondent's submission that it was only obliged to pay the Complainant for the period of her maternity leave up to the expiry of her employment with them, i.e. to 10th January 2016.
Section 6 of the Payment of Wages Act1991 states;
(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee.."
After the 10th January 2016 the Complainant was no longer an employee of the Respondent. In these circumstances the complaint fails.
Dated: 9th December 2016