ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00011237
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 24/01/2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
In accordance with Section 13 of the Industrial Relations Acts 1969 and following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Summary of Complainant’s Case:
The Complainant’s Trade Union official stated that an agreement was formulated between the Department of Health and Trade Unions in 1975 to provide equity across the service in the calculation of holiday pay. The detail of this agreement was set out in Department of Health Circular Number: S 100/412.
Under this arrangement, premium payments for holiday pay purposes were based on an average of premium earnings (exclusive of overtime) calculated over the 12-month period preceding the annual leave year in which the annual leave is been granted. This payment is normally made on a designated date or dates as agreed at each location.
It was stated on behalf of the Complainant that, through no fault of his own, he was the victim of an anomaly within Circular S100/412. The Trade Union representative pointed out that the anomaly had since been rectified by the Respondent following attempts by the Complainant to resolve his personal situation. However, it was pointed out that, although now resolved as a result of the Complainant’s raising of the issue, the Respondent continues to deny him his claim.
Following a career break, the Complainant returned to work in April 2011. It was stated that he made several attempts, at the time, to ascertain why you had not received his holiday premium pay for the period April 2011 to March 2012. According to his representative, the Complainant was informed by the Respondent’s Payroll Manager that “holiday premium pay for any given leave year (April – March) is based on average of premium earnings for the previous leave year and paid the following summer”. In addition, it was pointed out to the Complainant that as he had no premium earnings for the period in question to qualify for premium pay (April 2010 – March 2011)
At this point, the Complainant sought the support and representation of his Trade Union. Evidence was presented in relation to a series of correspondence between the Trade Union and the Respondent. As a result of the representations made by the Trade Union in this regard the Respondent confirmed, in a letter dated 25 September 2012, that, due to representations from the Trade Union, a proposal on the standardisation of holiday premia was being considered. According to the Trade Union this process eventually led to the calculation of holiday premia being based on the current year of service.
However, the Trade Union pointed out that the effective date for implementation of the new calculation criteria was 1 April 2014. As a result, this meant that the Complainant, on whose behalf the representations had originally been made, would not be covered by the new arrangement. Consequently, the Trade Union requested the Respondent, based on the special circumstances of the case, to consider the Complainant’s case on an exceptional basis and calculate his holiday premium payment for 2011/2012 using the new formula.
The Complainant’s Trade Union representative provided evidence of a chain of correspondence between 3 October 2013 and 3 March 2015, in which the issue of the Complainant’s claim was raised on numerous occasions. In March 2015, the Respondent agreed to revisit the situation. However, despite certain indications that the matter may be resolved, this did not materialise.
According to his Trade Union representative, the Complainant was informed, in August 2017, that the Respondent would not concede the claim and that the issue could be dealt with through conciliation. However, the conciliation was later denied by the Respondent’s Employee Relations Manager. As a result of this, the matter was referred to the Workplace Relations Commission (WRC).
In conclusion, the Trade Union representative stated that, due to an erroneous method of calculation, the Complainant was not paid his entitlement of holiday premium pay for the period April 2011 – March 2012.
Although the anomaly, which led to the Complainant’s situation, was eventually rectified, as a result of his raising the issue, the Respondent continued to ignore his (the Complainant’s) absolute entitlement to holiday premium pay for the year in question. It is stated that this entitlement is his legislative statutory right.
It was stated, on behalf of the Complainant, that the matter became even more frustrating when considered in the context of a draft publication of the National HSC HR Memo regarding the payment of holiday premia. According to the Complainant’s Trade Union representative, this memo states that: “in accordance with the organisation of Working Time Act 1997 – 2015, the leave year for which holiday pay is been granted should be the same leave year used for calculating the average premium pay element of holiday pay”.
It was also pointed out that the Memo states: “in cases where employees resign or retires or whose contract of employment is terminated during the year the employees final payment should also include any outstanding holiday premium pay”.
It was stated on the Complainant’s behalf that this Memo practically concedes the claim and is an admission from the Respondent that he (the Complainant) was not dealt with in accordance with the Act.
Summary of Respondent’s Case:
The Respondent raised a preliminary issue with regard to time limits for raising complaints under the Industrial Relations Act. The Respondent stated that, as the Complainant’s claim is under Section 13 of the Act, he is required to make his complaint within six months of the incident complained of.
The Respondent pointed out that, as the Complainant made his complaint on 13 October 2017, this would require that the matter giving rise to the complaint should have occurred within the previous six months and no later than 13 June 2017.
The Respondent also pointed out that, by his own actions and omissions, the Complainant terminated his contract of employment with the HSE on 5 May 2014.
The Respondent stated that the Complainant commenced employment on 31 August 2002. The Complainant was then granted a career break from 13 April 2009 to 12 April 2010, returning to his employment with the Respondent on 1 April 2010. According to the Respondent, the Complainant sought and was granted a further career break commencing on 6 May 2013 and ending on 5 May 2014.
The Respondent stated that, in accordance with the terms and provisions of the Career Break Scheme, the Complainant signed an undertaking dated 10 April 2013 in which he accepted and confirmed his intention to comply with the regulations pertaining to the granting of career breaks, including the provisions relating to the termination of his employment.
According to the Respondent, the Complainant, in correspondence dated 3 February 2014, confirmed his intention to return on 6 May 2014. In correspondence dated 18 June 2014, the Respondent informed the Complainant of a vacancy in its Service. This correspondence also sought the Complainant’s confirmation of his intentions regarding this job offer. The Respondent stated that in correspondence, dated 30 June 2014, the Complainant informed that he was unable to take up the position.
The Respondent stated that, as a result the above correspondence, it wrote to the Complainant on 4 July 2014 to the effect that by refusing to accept the job offer, he was therefore considered to have repudiated and terminated his contract of employment with effect from the expiry date of his career break, which was 5 May 2014.
The Respondent stated that the methodology used in the calculation of holiday premium pay, applied the provisions of Department of Health Circular S 100/290 S 100/1022 to all employees with an entitlement. It was further stated that the provision of the 1975 Circular remained in place until the 2013/2014 leave year when the Respondent was directed to change the method of calculation.
The Respondent stated that under the new method, the calculation of holiday pay was to be based on the average hourly rate for the same year as the leave was taken. However, the Respondent stated that no instruction was received from the Department of Finance in relation to backdating the change.
Accordingly, the Respondent stated that the Holiday Premium Pay for the Complainant was calculated in accordance with the Department of Health Circular. It was further stated that the Complainant was treated no less favourably than any of his colleagues or other agency employees who had an entitlement to a holiday pay premium or the calculation of same by reference to the applicable Department of Health Circular.
The Respondent stated that, following on from National discussions with the National Joint Council Group of Unions (NJC), a document titled “Proposal for the Standardisation Process of Calculation of Holiday Premium Pay - March 2014” was circulated. According to the Respondent, this proposal recommended that the new formula to be adopted be effective for the current annual leave year from 1 April 2014. In addition, the Respondent stated that the agreement also clarified and confirmed as follows “there is no retrospective review of varying long-standing historical practices which existed prior to the formulation of the HSE and the HSE is not in a position to act beyond the standardisation from a current date”.
The Respondent confirmed that the calculation applied to the Complainant’s Holiday Premium Pay was the same as that applied to all other employees. It was further confirmed that the calculation applied to the Complainant was the same in 2011/2012 as it was in 2012/2013. The Respondent further referred to the collective agreement reached with the NJC which saw the introduction of a new Standardised calculation method across all areas applicable as from 1 April 2014, with no retrospective application applying.
In conclusion, the Respondent sought a favourable determination in circumstances where the Complainant received Holiday Premium Pay calculated in accordance with the then relevant Department of Health Circulars applicable to the calculation of HPP due to him.
According to the Respondent, collectively agreed changes to the methodology applying to the calculation became operational with effect from 1 April 2014 in circumstances where the Complainant, at that point, had been on a career break since 6 May 2013. The new methodology applying to the calculation of HBP had no retrospective clause for application.
Findings and Conclusions:
The Complainant’s complaint relates to the non-payment of Holiday Premium Pay in relation to his annual leave for the leave period April 2011 to March 2012. The evidence presented in support of the Complainant’s complaint and indeed that presented by the Respondent in defending the claim, clearly demonstrates that the Complaint was seeking redress for his situation since July 2012.
The Complainant’s most recent efforts in this regard rest with correspondence dated 29 May 2017. In their reply, dated 1 June 2017, the Respondent, once more, rejected the Complainant’s claim. As a result of this rejection, the Complainant submitted a complaint to the Workplace Relations Commission (WRC) on 13 October 2017.
While the Complainant’s claim relates to outstanding pay from 2011/2012, it is clear from the evidence presented that his efforts, and those of his Trade Union on his behalf, to seek redress of the situation have been ongoing in the interim.
The Complainant’s complaint to the WRC was made under Section 13 of the Industrial Relations Act, 1969. This section of the Act makes no reference to timeframes. However, Section 41 (6) of the Workplace Relations Act 2015 sets out that:
“an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates”.
Having carefully considered all the evidence adduced, I am satisfied that the appropriate “date of the contravention” in relation to the Complainant’s complaint is 1 June 2017, the date of the final correspondence from the Respondent rejecting his longstanding claim.
Consequently, I find that the Complainant’s complaint was submitted to the WRC within the timeframe set out in Section 41 (6) of the Act. Therefore, I find the Respondent’s preliminary point in this regard is not well founded and I have jurisdiction to consider the Complainant’s claim.
An employee’s statutory entitlement to paid annual leave is clearly set out in Section 19 (1) of the Organisation of Working Time Act, 1997. Consequently, I am satisfied that no internal policies and procedures within any specific workplace/organisation can purport to undermine or limit the entitlements contained in the aforementioned section of the Act.
Having carefully considered the evidence as set out in relation to the complaint, I concur with the submissions made on behalf of the Complainant that the method of calculating holiday premia, as applied by the Respondent prior to 1 April 2014, was potentially in breach of the Act.
I am satisfied that this view is further confirmed by the Respondent’s implementation of the proposal on standardisation of holiday premia calculations, as a national collective issue. However, I am satisfied that the arbitrary application of the cut-off date of 1 April 2014 is unsustainable in a context where it denies the Complainant his statutory rights as established by the 1997 Act.
I am also satisfied that, given the lapse of time since the implementation of the standardised approach in April 2014 and the fact that there doesn’t appear to be any other outstanding claims, the conceding of the Complainant’s claim in this regard is very unlikely to have any knock-on effect with regard to precedent.
Consequently, taking all of the above into consideration I am of the view that the Complainant’s holiday pay for the period in question should be calculated as per the 2014 formula and payment of the due amount should be made.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Having carefully considered all of the evidence adduced and based on the considerations as detailed above, I recommend that the Complainant’s holiday premium pay is calculated and paid, as claimed, for the specified period, April 2011 – March 2012.
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Industrial Relations Act