ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00002026
Complaint for Resolution:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 |
CA-00002721-001 | 19th February 2016 |
Date of Adjudication Hearing: 26th July 2016
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Location of Hearing: Room 4.10 Lansdowne House
Procedure:
On the 19th February 2016, the complainant referred a complaint pursuant to the Payment of Wages Act to the Workplace Relations Commission. The complainant is a non consultant hospital doctor. The respondent is a hospital.
The complaint was scheduled for adjudication on the 26th July 2016. The complainant attended in person. The respondent was represented by Claire Hellen, IBEC and Niamh Ni Cheallaigh, IBEC. The HR Operations Manager attended as a witness.
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General of the Workplace Relations Commission, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The claim relates to a complaint from a Non Consultant Hospital Doctor for wages not paid to her for Sunday overtime and general overtime as well as an entitlement for an additional day’s pay due for the 28th December 2015.
Summary of Complainant’s Case:
The complainant worked for the respondent between the 22nd June 2015 and the 10th January 2016. This issue relates to her pay in December 2016, in particular with regard to overtime and Sunday/public holiday pay due. The contract of employment refers to one hour of additional pay due for every hour worked on a Sunday and on a public holiday. She said that she worked 29 Sunday hours in December 2015, but was paid the single rate for 15 of these hours. Given that her hourly rate of €19.10, she is owed €286.50.
In relation to overtime, the complainant outlined that it was her belief that her normal working day was 9 to 5 between Monday and Thursday and 9 – 4 on a Friday. Any hour worked beyond this should be counted as overtime, paid at time and a half. There was a dispute over the weeks of the 30th November and the 14th December where she had worked 8 hours overtime in the former week and 9.5 hours in the latter. 15 hours at time and a half were due, an amount of €429.75.
The complainant outlined that she was entitled to an additional day's annual leave as she had worked the 28th December 2015. She should have been paid double time for this day or received an additional day of pay. She claims €148.98. Taking the three elements to her claim, the complainant outlines that she is owed €865.23.
In reply to the respondent, the complainant outlined that the contract defines a working week as 39 hours and was also clear that every hour worked on a Sunday or public holiday was double time. It was also clear that overtime was due on all hours worked, including overtime worked on a Sunday and a public holiday. She outlined that she had worked for over six months so had an entitlement of more than the six months pro rata annual leave. She said that she had been deducted a day's pay on the 8th December but these hours were counted towards her 39 hours working week.
Summary of Respondent’s Case:
The respondent asserts that the complainant received the monies she was entitled to and that no further liability arises. The complainant worked a '5 over 7' roster whereby she was allocated to work on any five days in a week. There was also an element of on call work undertaken by doctors. The contract of employment was the standard contract for non consultant hospital doctors.
In respect of hours worked on a Sunday or on a public holiday, this was subject to a single time extra payment whereby each hour worked was subject to double time. This covered both regular hours and hours of overtime worked on a Sunday. In relation to public holidays, the complainant would be paid the premium rate and received a day in lieu. The respondent outlined that the contract of employment factors in these days in lieu, so that the complainant's six month contract contained the pro rata annual leave she was entitled to as well as the public holidays that well within the currency of the fixed term.
The respondent referred to the January 2016 pay slip issued to the complainant. The reference to flat overtime hours are those overtime hours working in the preceding week that fell on Sundays or public holidays. The complainant had received Sunday premium for each of these hours and was not entitled to the extra overtime payment. The complainant had received 29 premium Sunday hours, 17.5 hours of normal overtime and 23.5 hours of flat overtime. The respondent outlined that the working week was 39 hours and that these hours were subject to normal pay, subject to any premium due. In respect of 28th December 2015, the complainant had already used up the day in lieu and had exhausted her annual leave entitlement. It stated that the 28th December was a normal day of work and no premium payment was due.
The respondent outlined that the complainant had not worked on the 8th December 2015 and was deducted a day's pay from this. It outlined that this was done by agreement with the complainant.
Findings and conclusions:
The complainant is a doctor and claims monies owed for work undertaken in December 2015. The respondent is a hospital. The employment relationship came to an end at the expiry of the complainant's fixed term of employment.
The complainant asserts that she is owed for unpaid Sunday premium hours and unpaid overtime hours for December 2015 as well as a day in lieu for having worked on the 28th December 2015. The respondent asserts that these monies are not owed as the complainant was entitled to one premium for Sunday overtime and she also received the general overtime she was entitled to. It further asserts that the complainant received a day in lieu in the initial allocation of annual leave.
The respondent supplied the complainant’s contract of employment of the 22nd June 2015 and a circular dated the 5th October 2015 regarding arrangements for Christmas 2015. The contract provides that the complainant’s contracted hours are 39 hours per week and that she worked a 5 in 7 roster. In respect of public holidays, it provides that an NCHD working a 5 in 7 roster is entitled to leave for a total of nine working days in a year in lieu of the liability to be rostered on a public holiday, and in the second half of the year, this amounts to an entitlement of five working days. In respect of ‘unsocial hours / premium payments’ the contract provides an entitlement for a single time extra payment for every hour worked on a Sunday or public holiday, i.e. for every hour worked, the complainant will receive one extra hour of pay. In respect of overtime, this is defined as on call, on site work in excess of the average of 39 hours worked in each week of the roster period. The contract provides that all hours worked in excess of the averaged 39 hours each week are liable for payment of time and a half. It provides that all overtime hours worked on a Sunday and public holiday are paid at the rate of single time extra.
The complainant worked 14.5 hours on 13th December and 27th December 2015, commencing at 9.30am and finishing at midnight on both these Sundays. In both instances, the hours worked on the Sunday brought the complainant over 39 hours for the relevant week. The complainant asserts that she is entitled to an additional payment for this overtime. Given that the provisions dealing with overtime specifically address hours worked on a Sunday or on a public holiday (and state that they are paid at single time extra) I do not agree that such hours can also attract a second premium for overtime.
The complainant asserts that she worked 15 hours of overtime in December 2015 and January 2016 for which she was not paid time and a half. It is certainly not easy to correlate the rosters and the pay slips to establish what overtime is paid in respect of which periods of overtime, bearing in mind overtime is treated differently according to when it accrued. Having reviewed the January and March 2016 pay slips, and the December 2015 pay slip provided in loose leaf, I find that the respondent paid the complainant the time and a half overtime due. I note that this period includes two Sundays worked by the complainant and the premium due to the complainant for working on New Year’s Day 2016.
The complainant worked for 9.5 hours on Monday, 28th December 2015. The Circular issued by the respondent provides that the public holiday premium is not payable to staff on 5 over 7 rosters who worked on this day. As submitted by the respondent, the contract makes provision for additional days of annual leave for public holidays arising during the period of the contract, in this case five days. It follows that the complainant had the benefit of an additional day of leave during the period of her contract and no additional entitlement arises.
Taking these findings together, I find that the claim pursuant to the Payment of Wages Act does not succeed.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons outlined above, the claim made pursuant to the Payment of Wages Act does not succeed.
Dated: 28/03/2017
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Payment of Wages Act
‘NCHD’ Non Consultant Hospital Doctor
Overtime
Sunday and public holiday premium