ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00034113
Parties:
| Complainant | Respondent |
Parties | David Lanigan | Health Service Executive |
Representatives | Emily Moloney BL instructed by Hanahoe & Hanahoe Solicitors | Loughlin Deegan, Byrne Wallace LLP |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00044877-001 | 01/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005 | CA-00044877-002 | 01/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00044877-003 | 01/07/2021 |
Date of Adjudication Hearing: 27/07/2022
Workplace Relations Commission Adjudication Officer: Maria Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. I explained to the parties the procedural changes arising from the decision of the Supreme Court in Zalewski v Adjudication Officer & ors [2021] IESC 24 and gave them the opportunity to consider the changes. The parties’ representatives acknowledged the procedural changes.
At the first hearing the respondent applied for an adjournment so as to take instructions in circumstances where the complainant’s submission was received on that day. I asked for opening statements from each party and then adjourned the hearing giving each party three weeks for submissions. Counsel for the complainant indicated that complaint CA-00044877-002 was being withdrawn, she would proceed with complaints CA-00044877-001 and CA-00044877-003.
Written submissions were received from the respondent on 13 May 2022 and from the complainant on 19 May 2022. Supplemental written submissions were received from the complainant on 08 June 2022 and from the respondent on 01 July 2022.
The complainant and the respondent’s HR Manager, Ms Mahon, gave evidence on oath/affirmation on the second day. At the first day of hearing the complainant attended with counsel, Ms Moloney and a legal executive, Ms Ekiert. The respondent was represented by its solicitor, Mr Deegan and Ms Emily Mahon and Ms Siobhan Egan of the HR Department. The same people attended the second day together with Mr Martin Bryan of the respondent’s Payroll Department.
Preliminary Issue
At the beginning of the hearing on the second day Mr Deegan raised an issue about the name of the respondent set out on the complaint form. The respondent was shown as ‘National Ambulance Service’. It was submitted that the complainant’s employer is the Health Service Executive (HSE). The National Ambulance Service is an operational division of the HSE and as such does not have any legal existence separate from the HSE. It was submitted that none of the complaints herein could be brought against an entity that is not the complainant’s employer. Counsel for the complainant made an application to amend the complaint form so as to name the HSE as the employer and correct respondent.
I considered the submissions from both parties. This issue had not been raised on the first day of hearing. The HSE as employer of the complainant was on notice of the complaints, had provided a written submission and had been represented at the first hearing. In reply to a query the solicitor for the HSE confirmed it would suffer no prejudice in correcting the error. I made the decision to amend the complaint form to show the respondent as the HSE. My decision was made based on my knowledge of the decision of the Labour Court in Ballarat Clothing Ltd v Azix EDA 151 where the Court substituted the correct name of the employer for the names of two individuals who had been named in error and adopted the reasoning of Hogan J in O’Higgins v University College Dublin and The Labour Court [2013] IEHC 431.
Background:
The complainant is employed as an Emergency Medical Technician by the Health Service Executive in its National Ambulance Service division. On 6th April 2020 the complainant commenced training for the Covid-19 Response Team. In January 2021 the respondent informed the complainant that he had been overpaid a gross sum of €4944.31 because he had been paid a shift allowance while working hours that do not qualify for a shift allowance.
The complainant submitted three complaints to the Workplace Relations Commission on 01 July 2021. The first complaint is that the complainant did not receive a statement of his core terms in writing under the Terms of Employment (Information) Act, 1994. The second complaint submitted pursuant to the Safety, Health and Welfare at Work Act, 2005 has been withdrawn. The third complaint is that the respondent made an unlawful deduction from the complainant’s wages in contravention of the Payment of Wages Act, 1991.
The respondent’s position is that in late 2020 a review was conducted of all staff who were working alternative duties within the National Ambulance Service. Several staff were identified as receiving shift allowance who did not meet the criteria for shift allowance. The staff identified as receiving an overpayment of shift allowance were notified and the shift allowance was stopped, and overpayments were recouped. It is the policy of the respondent to recover any outstanding overpayment as expeditiously as possible.
It is the respondent’s position that the complainant is presenting a case of unlawful deduction of wages and change of contract, which are incorrect. The case is about the complainant being overpaid shift allowance between 06 April 2020 and 27 January 2021, for which allowance he did not qualify because of the hours he was working.
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Summary of Complainant’s Case:
The complainant is employed as an Emergency Medical Technician by the Health Service Executive in its National Ambulance Service division. He commenced employment on 26th March 2011. In the course of his work in August 2015 the complainant suffered an injury. He was approved for the Injury at Work scheme from 16th November 2015 to 26th January 2020. The complainant sought to return to work on lighter duties in 2016. Following a Stage 3 grievance process it was recommended that he should be returned to alternative duties if such could be found. In 2018 the complainant was transferred from a non-rostered position to a roster in Portlaoise.
The complainant was later offered duties within the National Emergency Operations Centre (NEOC) which he considered. However, he did not think he would be content doing this type of work, unless there were no other options available to him.
In April 2020 the complainant was contacted by his line manager about returning to work as part of the Covid-19 Response Team. The complainant confirmed that he wished to return to work. On 6th April 2020 the complainant commenced training for the Covid-19 Response Team. The complainant’s work required him to carry out Covid testing for members of the National Ambulance Service at their places of residence.
In January 2021 the respondent informed the complainant that he had been overpaid a gross sum of €4944.31 because he had been paid a shift allowance while working hours that do not qualify for a shift allowance.
The complainant submitted three complaints to the Workplace Relations Commission on 01 July 2021.
CA-00044877-001 Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994.
On the complaint form it is stated that the complainant did not receive a statement of his core terms in writing. However, the narrative indicates that the complainant’s employer is changing his rate of pay based on implied consent but, no such consent had been given.
Having received the notice about overpayment the complainant contacted his employer by phone and email about not being informed about changes to his contract and changes to his pay upon commencing work as a member of the Covid-19 Response Team. The respondent’s position was that the complainant had accepted alternative duties and as those duties did not involve shift work, as set out in the relevant agreement, then he could not be paid a shift allowance. The complainant had been paid shift allowance in error and the overpayment had to be recouped.
The complainant requested a Stage 1 grievance hearing. He claimed that there were changes in his terms and conditions which highlighted a failure by the HSE to properly return him to work in April 2020. In a subsequent letter the complainant stated that the reason for his grievance was the refusal to allow him to work his contracted rostered hours resulting in being unable to work hours that would allow him to realise his full earning potential by being eligible for shift allowance.
Legal Submission It is submitted that section 5 of the Terms of Employment (Information) Act, 1994 (as amended) requires an employer to provide written notice to an employee of any change to the terms and conditions of an employee’s contract within one month of the change taking effect. It is the complainant’s position that the respondent did not provide written notice of changes to the terms and conditions of his contract. In April 2020 when the complainant agreed to begin work with the Covid-19 Response Team there was an exchange of emails, but no reference was made to his pay or changes to his pay upon him taking up this work. The complainant was unaware of the alleged changes to his contract until nine months after he began work as a member of the Covid-19 Response Team.
In the supplemental submission, in response to a claim by the respondent, the complainant contends that this complaint was brought within time. It is submitted that the respondent has failed to notify the complainant of changes to the terms and conditions as required by section 5 of the Act. The complainant asserts that he was never provided with written notice of the change to his hours and changes to his pay due to him commencing work as a member of the Covid-19 Response Team. The complainant cites the decision in An Animal Carer v A Charity ADJ-00009820 which held that a breach of section 3 of the Act, dealing with failure to provide written notice of an employee’s terms and conditions of employment is a subsisting breach for as long as no statement is provided by the employer. The complainant submits that this decision is applicable to a breach of section 5 of the Act. The ongoing failure of the respondent to provide written notice of the changes of the complainant’s terms and conditions of employment is subsisting and therefore the complainant is not precluded from brining a complaint in respect of same.
CA-00044877-002 Complaint pursuant to section 28 of the Safety, Health and Welfare at Work Act, 2005 was withdrawn at the hearing.
CA-00044877-003 Complaint pursuant to section 6 of the Payment of Wages Act, 1991.
On the complaint form it is stated that the employer made an unlawful deduction from the complainant’s wages. In the narrative the complainant states that this employer changed his contractual rate of pay by removing his shift allowance and has deducted what it says is an overpayment.
The complainant states that section 5(1) of the Payment of Wages Act, 1991 (as amended) sets out the circumstances in which an employer may lawfully make deductions from any employee’s wages. It is submitted that the respondent made unlawful deductions from the complainant’s wages as he did not consent to a change in his rate of pay. The complainant rejects the respondent’s claim that he was overpaid. Further, it is submitted that the respondent cannot establish that the change in the rate of pay was provided for by a change in the complainant’s contract as the complainant was not made aware of this change in his contract until nine months later.
The complainant submits that the respondent never provided the complainant with any information which would clearly establish that the complainant was no longer entitled to shift allowance when he began work as a member of the Covid-19 Response Team. The complainant submits that in those circumstances his original roster is still in force and therefore he should be entitled to work the hours which would permit him to qualify for shift allowance. Further the complainant states that he never signed any document recognising a change in his working hours and thereby he is entitled to work the hours that would render him eligible for shift allowance.
The complainant asserts that prior to commencing work as a member of the Covid-19 Response Team he was not made aware of any criteria that would render him ineligible for shift allowance. The complainant disputes that he gave consent to a change in his pay be agreeing a repayment plan with the respondent. The respondent’s documents dealing with overpayments indicates that if an employee does not engage or agree to make repayments then the respondent will make alternative arrangements to recoup the monies. The complainant had no choice but to agree a repayment plan, but this does not mean that he accepted that shift allowance was paid to him in error.
The complainant’s claim is in respect of the entire sum of €4,944.31. The complainant submits that he brought his complaints within time and in in circumstances where that has been an ongoing failure by the respondent to engage with him in respect of his grievance. The complainant made repeated attempts to resolve the matter with the respondent by raising a grievance upon learning of the change to his hours and to his pay.
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Summary of Respondent’s Case:
The complainant is employed as an Emergency Medical Technician (Paramedic) by the respondent. He commenced employment on 26 March 2011.
Due to a shoulder injury suffered by the complainant he was approved for the Injury at Work Scheme from 16 November 2015 to 26 January 2020. In June 2018 Occupational Health issued a letter supporting retirement on the grounds of ill health. Alternative duties within the National Emergency Operations Centre (NEOC) were identified and offered to the complaint but he turned down those duties.
A review of all staff on the Injury at Work Scheme was conducted to ascertain their status with a view to finding options for them to either return or retire on ill health grounds. In January 2020 the complainant was again assessed by Occupational Health and deemed fit to return to work at the NEOC. The complainant informed his manager that he did not want to be temporarily assigned to work in NEOC. In April 2020 the complainant was offered and accepted work with the Covid-19 Response Team. On 06 April 2020 the complainant returned to work with the Covid-19 Response Team working day shifts. This offer provided him with lighter duties as part of the rehabilitation process.
The respondent’s position is that in late 2020 a review was conducted of all staff within the National Ambulance Service who were working alternative duties. Several staff who did not meet the criteria for shift allowance were identified as being incorrectly paid shift allowance.
The terms and conditions of the application of shift allowance are contained in the Ambulance Drivers Productivity/Flexibility Agreement (1978 to current) – “A shift week is defined as a week in which two or more duty periods commence earlier than 8.00 am, or later than 12.00 noon.Where a week comprising only duty periods between 8.00 am and 12.00 noon forms part of a recurring cycle of weeks, the remainder of which consists of shift weeks, it shall be regarded as a shift week.” Shift allowance is unique to the ambulance service and the criteria for shift allowance is well known by NAS staff.
The staff identified as receiving an overpayment of shift allowance were notified and the shift allowance was stopped and recouped. The complainant was informed of the overpayment and his pay record was amended. The respondent issued letters to all staff identified in the review informing them of an overpayment and setting out a number of repayment options.
It is the policy of the respondent to recover any outstanding overpayment as expeditiously as possible as it has responsibility for the stewardship and proper management of public funds granted to it for the provision of health and personal social services. The respondent must initiate an action to recoup an overpayment immediately upon discovery of the overpayment. The complainant agreed a payment plan with the Health Business Services – Finance (HBS) and commenced repayment of the overpayment at €50 per fortnight.
It is the respondent’s position that the complainant is presenting a case of unlawful deduction of wages and change of contract, which are incorrect. The case is about the complainant being overpaid shift allowance between 06 April 2020 and 27 January 2021, for which allowance he did not qualify because of the hours he was working.
CA-00044877-001 Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994.
The respondent submits that there are three issues arising in the context of this complaint. (1) The complainant is attempting to pursue a different complaint than the one made to the WRC on the complaint form. (2) The complaint is out of time. (3) There was no change to the complainant’s terms of employment. Different Complaint
The complaint form submitted to the WRC stated, “I did not receive a statement of my core terms in writing under the Terms of Employment (Information) Act 1994”. In the narrative description the complainant indicated the complaint related to information about his rate of pay, “My employer is changing my rate of pay and has indicated that it is doing so on the basis of implied consent and no such consent has been given.” It is the respondent’s position that this is a complaint pursuant to section 3 of the Act of 1994.
The complainant is attempting to pursue a different complaint. In his submission of 18 May 2022, he described his complaint in the following terms, which implies that the complaint is a complaint under section 5 of the Act. “Pursuant to the Terms of Employment (Information) Act 1994 an employer is required to provide written notice to an employee of any change to the terms and of an employee’s contract within one month of the change taking effect”. In the supplemental submission the complainant states that the complaint is under section 5 of the Act and relates to his rate of pay and his hours of work.
The complaint made to the WRC is a complaint under section 3 of the Act and the complaint now being pursued is a complaint of a contravention of section 5 of the Act. It is the respondent’s position that the complainant may not pursue a different complaint to the complaint he made to the WRC.
Out of Time
Without prejudice to the issue set out above the respondent makes the following observation in the alternative. It is the respondent’s position that the obligation to notify an employee of a change to the any of the particulars of the statement of terms under section 5 of the Act relates to an event that occurs at a point in time, namely the date on which there is a change to a term of the employee’s employment.
Complaints of contraventions of sections 3 and 5 of the Act of 1994 are made under section 41 of the Workplace Relations Act 2015. Section 41(6) of the Act of 2015 provides that an Adjudication Officer shall not entertain a complaint referred to him or her if it has been presented after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. Section 41(8) provides for an extension of the period to present the complaint if the Adjudication Officer is satisfied that the failure to present the complaint within 6 months was due to a reasonable cause.
In this case the alleged contravention occurred on 06 April 2020, the date the complainant commenced work with the Covid-19 Response Team. If there was any change to the complainant’s terms and conditions of employment, which there was not, the date on which the change occurred would have been 06 April 2020. Any obligation on the respondent under section 5 of the Act of 1994 would have been to provide written notification of any change not later than 05 May 2020. Therefore, a complaint about an alleged breach of section 5 of the Act of 1994 would have needed to be made not later than 04 November 2020, or if there was reasonable cause to explain a delay, not later than 04 May 2021. This complaint was made on 01 July 2021 and therefor is out of time.
The respondent rejects the contention made by the complainant in his supplemental submission that a contravention of section 5 of the Act of 1994 may be considered as a subsisting contravention in the same way a contravention of section 3 of the Act of 1994 is a subsisting contravention for as long as an employer fails to provide the employee with a statement of his terms of employment. It is the respondent’s position that a contravention of section 5 relates to an event that occurs at a point in time and any complaint about such contravention must be brought within the time limits set in sections 41(6) and (8) of the Act of 2015. If the complainant’s submission applied it would mean that is no time limit on presenting complaints pursuant to section 5 of the Act of 1994, which in the respondent’s view is an incorrect statement of the law.
No Change to Terms
It is the respondent’s position that there was no change to the complainant’s terms of employment. The respondent did not change the complainant’s rate of pay and he was at all material times paid the at the salary scale applicable to an Emergency Medical Technician (Paramedic).
The complainant’s contract of employment provides that the “standard weekly working hours of attendance for your grade are 39 hours per week. Your normal weekly working hours are 39”. The contract clearly states that the respondent is entitled to determine which hours during any week the complainant is to work. The contract states that the complainant may be required to work on-call duties, and in unforeseen events may be required to change allocated working hours at short notice. The contract requires the complainant to be available to be rostered for work at different times as determined by the respondent. Therefore, changes in rosters occur within the scope of the complainant’s employment, such changes are not changes to his terms of employment.
The respondent submits that there is no basis for the complainant’s complaint under the Act of 1994.
CA-00044877-003 Complaint pursuant to section 6 of the Payment of Wages Act, 1991.
Further to a review in late 2020 of all staff who were working alternative duties within the NAS it was established that a number were receiving shift allowance payment where they did not meet the criteria for the application of such shift allowance. Staff identified as receiving this shift allowance whilst not working shift work had this allowance stopped. The complainant was one of the staff who had been paid shift allowance whilst not working hours that qualify for shift allowance. The rules relating to shift allowance for paramedics in the HSE are well established. They have operated since the late 1970’s in the HSE’s predecessor organisations and consistently since the establishment of the HSE in 2005. The criteria for shift allowance are set out in the Ambulance Drivers Productivity/Flexibility Agreement 1978 (concluded in 1979). During the period April 2020 to January 2021 the complainant did not work any shift weeks. He did not start work before 08.00am or later than 12 noon. Therefore, he should not have been paid a shift allowance. Through an error, he was paid a shift allowance. This was an overpayment.
On 29 January 2021 letters were issued to the relevant staff, including the complainant, informing them of that an overpayment had occurred because of them incorrectly receiving the shift allowance. The complainant is claiming that the respondent changed his rate of pay, that is incorrect. He was incorrectly paid a shift allowance between April 2020 and January 2021.
The HSE National Financial Regulation (NFR-4) requires the respondent to initiate action to recoup an overpayment immediately upon discovery of the overpayment. All overpayments must be repaid to the respondent in full in as short a period as possible. The complainant agreed a repayment plan with the respondent to pay €50 per fortnight.
It is the respondent’s position that there was no contractual change to rates of pay, as suggested by the complainant. The complainant was paid his full basic pay, had access to premia payment and overtime payments but he was not entitled to be paid a shift allowance due to his work pattern.
The overpayment made to the complainant was €4,944.31 gross. The deductions from wages in the six months prior to the complaint being lodged amount to €714.14. The complaint was received by the WRC on 01 July 2021. Further to the provisions of section 41(6) of the Workplace Relations Act 2015 the scope of the complaint is limited to deductions that were made in the period from 02 January 2021 to 01 July 2021.
In line with the provisions of the Payment of Wages Act 1991 NRF-4 sets out the conditions and requirements by the employer to manage overpayments. When the overpayment was discovered, the respondent communicated with the complainant and gave him the opportunity to arrange a repayment plan, suitable to his needs. The complainant agreed a repayment plan.
The respondent rejects the claim of an unlawful deduction. Section 5 of the Act of 1991 regulates deductions by employers from employees’ salaries. However, section 5(5)(a) expressly excludes (from the operation of section 5) deductions in respect of overpayments. In this case the relevant deductions relate to overpayments made to the complainant therefore none of the other provisions of section 5 of the Act of 1991 apply to these deductions. It is submitted that as a matter of law the respondent did not require the complainant’s consent to make the deductions.
The respondent submits that the complainant agreed a repayment schedule and having done so he is now estopped from pursuing a complaint under the Act of 1991 in respect of the recoupment schedule.
The respondent submits that the deductions totaling €714.14 that are in issue on this complaint were lawful deductions. Section 5 of the Act of 1991 does not apply to those deductions and the complainant is not entitled to any redress in respect of those deductions.
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Findings and Conclusions:
The complainant presented two complaints for adjudication. The following is a summary of the evidence presented by the complainant and Ms Malone for the respondent.
Complainant’s Evidence The complainant described commencing work on a temporary contract in 2009 and then having completed training he became employed on a permanent basis in 2011. He worked as a paramedic with the ambulance service. In 2015 he was injured in the course of his work. He was unfit to return to frontline duties due to his injury.
Following the initial period, he was paid ‘Article 109’ rate, that is 5/6th of basic pay plus shift allowance. There was a change in January 2020, and he believed he was paid sick leave rate plus shift allowance between January and April 2020. The complainant had indicated to the respondent that he wished to return to lighter duties and was fit to do so. In April 2020 he was contacted by his line manager and asked if he was willing to work with the Covid-19 Response Team. The work involved carrying out PCR tests for Covid-19. The complainant stated that he was working shift in April/May 2020 and was paid shift allowance. He stated that there was no return-to-work interview conducted with him before he commenced training for work carrying out PCR tests.
The complainant stated that in late January 2021 he met Mr N. L. , the Operations Control Manager in the car park. He was told by Mr N. L. that his shift allowance was being taken away. A few days after that he received a letter from the respondent about overpayment of shift allowance. The letter set out the amount of the overpayment, listed options for repayment and asked the complainant to contact the Payroll Manager to advise her which option best suited him. He regarded this as an instruction from payroll, there was no agreement. The complainant contacted payroll and told them what amount he could afford.
The complainant then contacted HR to find out if there was any reason he could not work his contracted hours, that is hours that would qualify for shift allowance. He stated that he was not given a reason. He then contacted Mr N.L. again and expressed his unhappiness with the situation, and that he wished to have a Stage 1 grievance hearing. He was sent a reply and a form by Mr N.L. in February 2021. That form set out the duties he was working but it was dated April 2020, he stated that he could not sign that document ten months after starting his work with the Covid-19 Response Team. As he was seeking for some time to have a Stage 1 grievance hearing, without success, he next wrote to the divisional Assistant Chief Ambulance Officer. He no longer wanted to work a 9-to-9-day roster as he was not receiving shift allowance. The reply indicated that the issue was not a grievance but an overpayment, he had been paid shift allowance in error. The complainant finally wrote to divisional Chief Ambulance Officer stating that his grievance was the refusal to allow him to work his contracted rostered hours. No grievance hearing took place.
The complainant stated that reference had been made to a 1978 agreement about shift allowance. He never saw that agreement and it was not part of the staff handbook as it only applies to the ambulance service. He stated the document was not an official document as it had no code on it. The complainant stated that he was entitled to the shift allowance between April 2020 and January 2021 as he had worked side by side with people who were being paid the shift allowance.
Cross Examination The respondent referred to the complainant’s contract of employment, signed by the complainant on 21 March 2011. Reference was made to paragraphs 8 (remuneration / salary scale), 9 (hours of attendance), and 26 (agreement on revision of terms and conditions in accordance with agreements reached with union). There is no reference to shift allowance in the contract. It was put to the complainant that there was no amendment to the contract. The complainant stated it was his case that it was incorrect to say there was no amendment. It was the respondent’s case that the complainant’s contract did not change.
The respondent acknowledged that there would be a roster in compliance with the agreement with the union representing the complainant’s grade. The hours are averaged over a 9-week rolling roster, an average of 156 hours per month. The complainant stated that he was not a member of a recognized union and he never saw an agreement about hours. The respondent referred to the definition of a ‘shift week’ and ‘shift payment’ in the agreement with the union. The complainant stated that he accepted that it was the respondent’s position that to get shift pay one must work shift, but he did not agree with their position. He stated that some people were working the same hours as he was and being paid shift allowance. The respondent’s representative stated that some staff on Covid duties are working shift hours and therefore are entitled to be paid the shift allowance. However, nine people were identified as being paid shift allowance whilst not working shift hours, they were therefor overpaid for a period in error. The complainant was one of the nine people identified.
In reply to questions about return to work and fitness to return to work the complainant stated that he wanted to return to lighter duties, Covid-19 provided an opportunity but there was no return-to-work meeting to explain the details. In reply to questions about the options for repayment the complainant stated that his interpretation of Option 1 was that his salary would be stopped. He agreed that when he spoke with Ms B she was helpful, but he did not agreed that the money was overpaid and should be paid back. The letter about overpayment did not provide a solution to the issue in the four options, it was all about repayment.
Respondent’s Evidence Ms Mahon gave evidence on affirmation for the respondent. She stated that collective agreements underpin the method of all ambulance personnel pay. She stated that in order to be paid shift allowance employees have to meet the criteria in the agreements, the definition of shift is precise and unique to ambulance service employees. Shift allowance may only apply where shifts begin before 08.00 and after 12.00noon. She stated that following a review a number of employees were identified as being paid shift allowance in circumstances where they were on alternative duties and were not working shift hours. All those people were informed of the overpayment and sent letters identical to the letter sent to the complainant. She also stated that some employees working on Covid duty were working shift hours and therefore they were entitled to be paid shift allowance.
The complainant had worked shift hours before he was injured. However, when working on the Covid Response Team the complainant was not working shift hours, so he was not entitled to be paid a shift allowance. Ms Mahon described the complainant’s circumstances as a change to a roster or work schedule, it was not a change of contract. She stated that most people are aware of the collective agreements in place.
Cross Examination In reply to a question about the awareness of employees to collective agreements Ms Mahon stated that staff often quote sections of the agreements. In relation to the complainant’s level of knowledge she stated that she had no interaction with him, and she could not say what he knew.
Concerning the employees involved in the Covid duties who were working shift hours she stated they were involved in different duties but mostly they were managing teams, collecting information and preparing workloads for the following day.
Responding to a question about why the complainant was not allowed to work shift hours she stated that he was unfit for frontline duties. He was assigned to regular hours on alternative duties when he commenced work with the Covid Response Team. She disagreed that there were other employees working the same hours as the complainant but being paid a shift allowance.
CA-00044877-001 Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994.
Legislation Written statement of terms of employment. * 3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the terms of the employee’s employment, that is to say— … (g) the rate or method of calculation of the employee’s remuneration … (i) any terms or conditions relating to hours of work (including overtime)
*Legislation applicable at the time the complainant commenced employment, since amended.
Notification of changes. 5.— (1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— (a) 1 month after the change takes effect, or * (b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure. *Amended (16.12.2022) by European Union (Transparent and Predictable Working Conditions) Regulations 2022, S.I. No. 686 of 2022, reg. 8.
Findings
The complaint form submitted to the WRC indicates the complaint is one brought pursuant to section 3 of the Act of 1994, that is that the complainant did not receive a statement in writing of his core terms of employment. The complainant and the respondent both provided copies of the contract of employment dated 14th March 2011. The complainant commenced employment on 26 March 2011 and had signed his contract on 21 March 2011. In circumstances where a statement, as required by section 3 of the Act of 1994, has been provided the complaint as stated on the complaint form is not well founded.
However, in the complainant’s submissions it is claimed that the complaint concerns lack of notification of changes to his terms and conditions of his contract in respect of pay and hours of work. Section 5 requires, “whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than— …”
The respondent submitted that the complainant may not pursue a different complaint to the complaint that he made in his original complaint form. The complaint form is not a statutory form and complaints do not have to be presented on the form provided. However, the complaint being made must be clear to the respondent. In this case the complaint appeared to be made under section 3 and it was not until the first day of hearing that it was indicated that the complaint was being made under section 5 of the Act of 1994.
The circumstances in which a complainant can subsequently amend or augment an original claim were considered by the Labour Court in Department of Foreign Affairs v Cullen EDA116. The Court quoted the decision of McGovern J in County Louth VEC v The Equality Tribunal IEHC 370 and stated “The fundamental principle adumbrated by the Judge is that, by analogy with the practice in civil proceedings in the ordinary Courts, a complainant should be permitted to amend his or her original claim where the justice of the case requires it. McGovern J did, however, add an important qualification to this general principle in pointing out that an amendment can only be made where the general nature of the complaint remains the same.”
In the respondent’s supplemental submission, it is noted that the narrative description on the complaint form indicated that the complaint related to information about the complainant’s rate of pay. The complainant expanded the grounds of his complaint in his supplemental submission to include information about his rate of pay and his hours of work. I am satisfied that the complainant identified the Act under which he was presenting his complaint and indicated in the narrative on the form that the complaint related to information about his rate of pay. In such circumstances and where the respondent had been given time to respond to the complainant’s supplemental submission, the justice of the case requires me to consider the complaint as amended in the submissions to be a complaint under section 5 of the Act of 1994.
The respondent submits that the alleged contravention of the Act of 1994 is out of time. It is submitted that section 41(6) of the Workplace Relations Act, 2015 requires a complaint be presented within 6 months of the date of the contravention to which the complaint relates. Section 41(8) of the Act of 2015 permits an Adjudication Officer to entertain a complaint presented after 6 months, but not later 6 months after the expiration of the first 6 months, if satisfied that failure to present the complaint within 6 months of the date of the alleged contravention was due to reasonable cause. The alleged contravention occurred on 06 April 2020; the complaint was submitted on 01 July 2021.
The complainant disputes the complaint is out of time. It is contended that as the respondent failed to provide written notice of the change to the complainant’s hours and pay on foot of him commencing work as a member of the Covid-19 Response Team on 06 April 2020 there is a subsisting breach of section 5 of the Act of 1994 that remains ongoing. Therefore, the complainant is not precluded from bringing the complaint fifteen months after the alleged contravention. The complainant cited the decision in An Animal Carer v A Charity ADJ-00009820.
The decision in ADJ-00009820 deals with a contravention of section 3 of the Act of 1994. Section 3 imposes an obligation on an employer to provide a statement of the terms of employment and requires the employer to keep such statement throughout the employment and for one year thereafter. The decision in ADJ-0009820 states that “The multiplicity of interventions allowed by section 7(2) shows that the contravention of section 3 is a subsisting contravention that endures so long after the initial two-month period the employee remains an employee not in possession of a statement.” That means failure to provide a statement in writing of the terms of employment continues to be a contravention of section 3 until the required statement is provided.
The obligation imposed by section 5 of the Act of 1994 relates to a change that may occur at a particular time during the period of employment. The legislation provides that a complaint pursuant to section 5 may be submitted within 6 months of the date of the alleged contravention. Or within a further 6 months if there is reasonable cause for the delay in submitting a complaint. I accept the point made by the respondent that the complainant’s submission would, if it was correct, mean there would be no time limit for complaints to be brought under section 5 of the Act of 1994. I do not believe that is what is intended by the legislation. I am satisfied that the decision cited by the complainant is not applicable to a contravention of section 5 of the Act of 1994.
In this case the alleged change occurred on 06 April 2020 when the complainant joined the Covid-19 Response Team. A complaint about a contravention, that occurred on 06 April 2020, of section 5 would have to be submitted between 05 May and 04 November 2020. If an extension of time was requested based on reasonable cause and granted the complaint would have to have been submitted not later than 04 May 2021. The complainant was notified of the overpayment on 29 January 2021. There was at that stage still time to make an application for an extension of time but, no application was made. The complaint was presented on 01 July 2021, fifteen months after the alleged contravention. I am satisfied that the complaint is out of time. I do not have jurisdiction to adjudicate on this complaint as it was submitted out of time.
The complainant contends that was a change to his terms of employment, but this is rejected by the respondent. I do not have to decide on this point as I have found the complaint was submitted out of time.
Conclusion The complaint on the complaint form appeared to be made under section 3 of the Act of 1994. The parties provided copies of the contract of employment signed by the complainant on 21 March 2011. As a contract of employment setting out the terms of employment was issued by the respondent and signed by the complainant a complaint that the complainant was not issued with a statement in writing of his terms of employment is not well founded.
The complainant made the case that the complaint was submitted under section 5 of the Act of 1994 and related to him not being notified in writing of a change in his terms of employment. Having carefully considered the submissions and evidence presented I find the complaint was submitted over twelve months after the date of the alleged contravention of section 5 of the Act of 1994 and is therefor out of time. I do not have jurisdiction to adjudicate on a complaint that is submitted out of time.
CA-00044877-003 Complaint pursuant to section 6 of the Payment of Wages Act, 1991.
The complainant alleges that the respondent made unlawful deductions from his wages. On the complaint form it is alleged that the respondent changed the complainant’s contractual rate of pay by removing his shift allowance and deducting what the respondent says is an overpayment. The complainant asserts that the respondent made unlawful deductions and that he did not consent to a change in his rate of pay. The claim for unlawful deduction of his wages is in respect of the entire sum of €4,944.31.
The respondent’s position is that deductions were made to recoup overpayments that had been made to the complainant. The overpayments arose because, in the period April 2020 to January 2021, the complainant was paid shift allowance to which he was not entitled because he was not working hours that qualified as shift hours for the payment of an allowance. The respondent asserts that there was no unlawful deduction from the complainant’s wages.
Legislation
Regulation of certain deductions made and payments received by employers. 5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it. (2) An employer shall not make a deduction from the wages of an employee in respect of— (a) any act or omission of the employee, or (b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless— … (3) …
(4) …
(5) Nothing in this section applies to— (a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where— (i) the purpose of the deduction or payment is the reimbursement of the employer in respect of— (I) any overpayment of wages, or (II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and (ii) the amount of the deduction or payment does not exceed the amount of the overpayment
(b) … (g)
(6) Where— (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.
Findings It is common case that between April 2020 and January 2021 the complainant worked as part of the Covid-19 Response Team and was paid a shift allowance throughout that period. The respondent asserts that the complainant was working hours that did not qualify for shift allowance and therefore he should not have been paid shift allowance. There was an error, and the shift allowance was an overpayment.
Section 5 of the Act of 1991 sets out the regulations about deductions that may or may not be made by an employer. Section 5 (5)(a) excludes from the other elements of section 5 deductions in respect of overpayments. The question to be decided is whether that was an overpayment or, as the complainant submits a change in his rate of pay.
The parties submitted copies of the complainant’s contract of employment, issued in 2011 and signed by the complainant on 21 March 2011. Section 8 (Remuneration) sets out the pay scale applicable to the complainant. There was no evidence of any change having been made to the pay scale or change as the scale applies to the complainant. Section 9 (Hours of Attendance) sets out that the normal weekly working hours are 39. It is also stated that where not assigned to a roster the supervisor will notify the working hours allocated to the employee. There was no evidence of any change having been made to the normal 39 hours per week or reduction in the number of hours worked by the complainant. It seems clear from the contract that working a roster of different duty times would be expected of the complainant. I can find no basis for the complainant’s contention that he is entitled to work hours that would permit him to qualify for shift allowance. Section 26 (Agreement) states that the complainant’s terms and conditions may be revised in accordance with agreements reached between the union representing the complainant’s grade and the HSE.
Copies of the Ambulance Drivers – Productivity and Flexibility Agreements from 1978 and 1984 were provided by the respondent. These agreements set out details of shift hours, a definition of a shift week and a shift allowance. The agreement states that “A shift allowance of one sixth of basic weekly wage will be paid to Ambulance Drivers on shift duty (as defined in Clause 6(a)(x) of the agreement).” Clause 6(a)(x) defines a Shift Week as follows: “A shift week is defined as a week in which two or more duty periods commence earlier than 8.00 am, or later than 12.00 noon. Where a week comprising only duty periods between 8.00 and 12.00 noon forms part of a recurring cycle of weeks, the remainder of which consists of shift weeks, it shall be regarded as a shift week.” The evidence presented is that the complainant only worked a 9-to-9-day roster between April 2020 and January 2021. Such a roster does not come within the definition of a shift week as defined in the Productivity and Flexibility Agreement.
The complainant in his submissions and evidence referred to trying to raise a grievance with the respondent after he received notice of the overpayment. It appears for the emails submitted by the complainant that there was some communication about hours or work at the time he commenced working with the Covid-19 Response Team. However, no dispute about a grievance hearing was referred to the WRC so it is not a matter about which I am required to make a recommendation.
The complainant was issued with a contract of employment in 2011 when he started work for the respondent. That contract clearly states the relevant salary scale, the number of work hours per week and reference is made to local roster arrangements. The contract also refers to agreements reached between the union representing the complainant’s grade and the respondent. (I note paragraph 26 of the contract is not shown in the copy of the contract submitted by the complainant. The copy submitted by the respondent contains paragraph 26 on the last page of the contract, which is the page signed by the complainant and the respondent.) I am satisfied that the arrangements covering shift hours and the applicable shift allowance have been in place since before the complainant commenced employment. It was the complainant’s evidence that he never saw the Productivity and Flexibility Agreement and that he was not a member of a recognised trade union. In my opinion it is not credible that an employee working in the service for ten years was not aware of the shift arrangements and that a shift allowance only applied when one worked a shift week or recurring roster of duties that qualified for payment of shift allowance.
There may have been some lack of clarity about the hours the complainant would be required to work at the time he returned to work with the Covid-19 Response Team but, the fact is he only worked hours that did not qualify for a shift allowance. The terms and conditions relating to hours of work, rosters and shift arrangements are covered by contract and agreements with trade unions and apply to all employees of this grade. I am satisfied that to qualify for the payment of a shift allowance an employee must work duties as defined in the Productivity and Flexibility Agreement, that is commencing before 8.00 am or after 12.00 noon.
I am satisfied that the complainant did not qualify for a shift allowance between April 2020 and January 2021 as he was working a 9-to-9 roster. The complainant stated in his evidence that he accepted that it is the respondent’s position that to be paid shift allowance one must work shift but, he did not agree with this position. I find that the respondent paid the complainant shift allowance in error and an overpayment of €4,944.31 gross resulted from this error. Section 5(5)(a)(i) of the Act of 1991 excludes from the other provisions of section 5 deductions in respect of overpayments. I find that the respondent did not make an unlawful deduction from the complainant’s wages. Further, I find that the respondent did not require the complainant’s consent to make these deductions.
The respondent when informing the complainant of the overpayment set out options for the complainant as to how the overpayment might be repaid. I accept that the complainant felt he had to agree an option because he was concerned that if he did not the overpayment would be recouped at a rate he could not afford. However, he did agree with the respondent on the amount he said he could afford.
Conclusion
The complainant was overpaid in error between April 2020 and January 2021. The overpayment arose as he was paid a shift allowance to which he was not entitled as he was not working hours that qualified for shift allowance. The respondent made deductions to recoup the overpayment. The complainant’s wages were not reduced, he continued to be paid on the relevant salary scale and work the number of hours provided in his contract of employment. I find that the respondent did not make an unlawful deduction from the complainant’s wages. The complaint is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00044877-001 Complaint pursuant to section 7 of the Terms of Employment (Information) Act, 1994.
Having carefully considered the submissions and evidence presented I find the complaint was submitted over twelve months after the date of the alleged contravention of section 5 of the Act of 1994. The complaint was therefore submitted out of time. I do not have jurisdiction to adjudicate on a complaint that is submitted out of time.
CA-00044877-002
This complaint was withdrawn at the hearing.
CA-00044877-003 Complaint pursuant to section 6 of the Payment of Wages Act, 1991.
I carefully considered the submissions and evidence presented and I find that the complainant was overpaid in error between April 2020 and January 2021. The overpayment arose as he was paid a shift allowance to which he was not entitled as he was not working the hours that qualified for shift allowance. The respondent made deductions to recoup the overpayment. I find that the respondent did not make an unlawful deduction from the complainant’s wages. The complaint is not well founded.
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Dated: 30/04/2025
Workplace Relations Commission Adjudication Officer: Maria Kelly
Key Words:
Terms and Conditions Notice of change to Terms and Conditions Deduction from wages Unlawful deduction from wages Overpayment |