Complainant

Respondent

Parties

Megan  Creegan

Health Service Executive

Representatives

Eamon Ross HSE

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00067694-001

27/11/2024

The Complainant has been employed by the Respondent as a Physiotherapy Assistant  with effect from 13 November 2023 until she resigned her employment from 12 July 2024.  The Complainant contended that the Respondent had paid her less than the amount due to her in relation to travel expenses.

The Respondent accepted that the Complainant did not get paid her travel but that there was good reason for the non-payment.  In addition, the Respondent contended that the payment of travel is not specifically covered within the Payment of Wages Act, 1991.

In her complaint form, the Complainant outlined that she was working as a Physiotherapy assistant for the HSE in Cavan.  She confirmed that she was a qualified Physiotherapist however she was awaiting her CORU registration in order to practice in Ireland and in the interim was working as a Physiotherapy assistant.  She confirmed that she commenced employment as a Physiotherapy assistant in November 2023, pending her CORU registration.

The Complainant outlined that her base was Connolly Street Primary Care (PCC) in Cavan town.  She outlined that she was told the Friday before she started that she would be working as a Physiotherapy assistant and not a Physiotherapist and that she didn’t know at that point if CORU was not granted that she couldn’t work as a Physiotherapist.  She stated that she did not receive or know what the main duties of a Physiotherapist assistant was, and what exactly she would be doing on a day to day basis, despite requesting same from her Line Manager at the time.  She outlined that she was then told verbally by Senior Physiotherapists that the job was mainly administration and carrying out exercise plans with patients in the centre.

The Complainant outlined that from November 2023 until January 2024 the above mentioned was what her day to day duties entailed.  She stated that however, she was then told, without any sort of prior consultation, that her work schedule would change at the start of February.  She stated that this new change involved her driving 30-40 minutes extra to work, two days per week, in Virginia PCC, Cootehill PCC two days per week, and one day in Drumalee (Cavan town).  She stated that this new driving meant she was clocking up a considerable amount of miles on her parents car which she used for work.  She stated that she had been extremely transparent with the HSE and the Travel Department of the HSE, located in Connolly Street, since the start of her role regarding her inability to add indemnity insurance to the policy she was named on.  She stated that she had recently obtained her full drivers licence and that she had two cars available for her use to get to and from work.  She outlined that both insurance companies would not indemnify her against the HSE at the time and she reaffirmed that she had previously told the HSE this prior to the increase in her travel and new work schedule from February 2024.

The Complainant stated to add to the additional miles she was driving for her new work routes, she was then required to drop equipment off to patients homes in these different areas of Cavan.  She stated that she was expected to drive to patients homes and nursing homes every day to complete home exercise plans with them.  She stated that all along she was told by both her Line Manager and the Travel Department in Connolly Street, that she would be paid retrospectively for these months of driving.  The Complainant outlined that notwithstanding that, by the time March 2024 came around she queried why payment had not been made and she was then told that it was because she did not have indemnity and that they could not pay her what she was owed.  She stated that this was despite the fact that during the entire time she was told repeatedly by her seniors and more senior management that she would get paid retrospectively.  She stated that like a lot of the HSE, when something like this occurs, nobody will offer support and will point fingers at others.  She stated that she brought this to the attention of more senior management and she was then told by them and the Travel Department that the general management in Cavan Hospital would allow payment for her travel claims from January to March as a once off payment in circumstances where she would create a memo to state that she had not made any insurance claims during her time working with the HSE, nor had any claims been made against her. 

The Complainant outlined that a particular employee from the Travel Department stood over her and told her what to write in the memo, and that this was then subsequently sent over to the General Manager via her Line Manager.  She stated that should indemnity have been in situ and should she have gotten into a car accident, or equipment was stolen from her car, the HSE would not have been liable for any insurance claims incurred on her behalf.  The Complainant outlined that she had however made it clear throughout all of this that it was not in place, so had any of the abovementioned issues occurred, the HSE would have been liable for the legal action versus herself. 

The Complainant outlined that once again, approximately one month later in April, she still had not received any travel payment, nor was she ever told to stop driving around Cavan providing a service on the HSE’s behalf throughout any of this.  She then queried this again with her Line Manager and she stated that the General Manager had declined same and that travel would not be made payable to her.  The Complainant stated that her manager gave her the option at that point to raise a grievance, however, she also advised that this was “not a route that she want to take” whilst heavily advising against same.  The Complainant stated that what this meant was that she should do nothing and not stand up for herself.  She stated that this opinion was reinforced by two Senior Physiotherapists in Connolly Street, one of whom she met at an in service training where she advised that raising a grievance would “damage my reputation”, and that she wouldn’t want to start off her career like that.

The Complainant outlined that despite this advice she did raise a grievance, that she went through all the stages, that she had a stage 1 meeting with her Line Manager, who stated that she could not change the outcome and that the Complainant would have to raise the matter to a stage 2.  She stated that she had a stage 2 meeting with the General Manager and again the General Manager confirmed that she could not accept the memo, despite her Line Manager stating that the General Manager was the person who requested her to write that memo so that she could be paid as a once off.  The Complainant stated that the General Manager also stated throughout the meeting that indemnity was purely for travel claims to be paid out and that she should have known driving around without insurance, that the Complainant was okay with not being paid for travel costs incurred.  The Complainant outlined that when she questioned why she was not told to cease driving due to no indemnity, the General Manager stated that “nobody was obliged to tell you”. 

The Complainant stated that she also had a meeting under stage 3 of the grievance procedure with the HR Manager.  She stated that this meeting was due to be held within seven days after the General Manager had made the decision at stage 2 as per the HSE legal guidelines for grievances held.  She stated that this meeting wasn’t held within that timeframe and was actually carried out three weeks later at the end of July 2024.  The Complainant outlined that the HR Manager stated during the meeting that she would look into seeing if she had signed a travel document, basically insinuating that if no indemnity was in situ, that the Complainant as an employee of the HSE was happy to drive around knowing that she was not able to claim same.  The Complainant stated that this document never existed in the first place in order for her to sign.  She confirmed that the outcome of stage 3 should have been provided within seven days and that once the outcome was received the HR Manager declined her request and there was no mention of this “supposed travel document”, in the outcome letter.  The Complainant stated that in those circumstances, she was obliged to raise her complaint with the WRC despite having been heavily advised by her senior colleagues not to do so. 

The Complainant stated that her time spent working with the HSE and what she was subjected to, not only in regard to the unpaid travel, providing a service on the HSE’s behalf around Cavan in patient’s homes and in nursing homes, but also the heavily scrutinized manner in which her colleagues and senior representatives advised against, stood back and watched this all unfold without offering any support, had been extremely disappointing and also extremely stressful.  She stated that she was a shell of a person working in the healthcare system and after going through the whole process, that she now suffered with low self-esteem.  She stated that she was a qualified Physiotherapist who had studied abroad to come back to support the healthcare system here in Ireland, but that she had been let down alongside many others in the country.  She stated that this entire experience had been so unjust and that she hoped that case would help remedy the situation.

Complainant evidence at hearing:

Preliminary issue:

In response to the Respondent’s preliminary issue regarding the complaint being out of time, the Complainant stated that she had expected the January to March 2024 payments to be made at the end of that month, that there was a battle going back and forth in June, that she had raised her stage 2 grievance with the General Manager and only received the result of that at the start of July and that she only received the outcome of the stage 3 grievance on 23 August.  She stated that in all those circumstances and given that she had been strongly advised by senior managers not to lodge a complaint throughout that time, she was seeking an extension of the time limit available to her. 

The Substantive Issue:

The Complainant gave evidence that in January 2024 she had sent in travel claims and she had highlighted at that time to the HSE that she was not indemnified.  She advised her Line Manager and the Travel Department, that she was not in a position to indemnify because she was only a named driver in both cars that were available to her for attending work.  She confirmed that she did try again and that in mid-February she confirmed to them that she could not be indemnified.  She stated that her Line Manager advised her to do a memo to the General Manager advising of the indemnification issue and that the General Manager would sign off on the payment as a once off arrangement.  She stated that by the end of March or early April, she was advised that the General Manager had declined to do so and at that point she went into the grievance procedure.  She stated that the job description had confirmed that she was required to travel and that the travelling required was generally to patient homes and nursing homes and that part of her work there was to come up with an exercise plan, to bring equipment to homes and that she was obliged to run a class each week.  She stated that no Physiotherapist was present during any of those sessions, that as a Physiotherapy assistant she ran those sessions unaccompanied. 

Mr Ross, on behalf of the Respondent, confirmed that he did not wish to put cross examine the Complainant.

The Respondent submitted that the Complainant was employed as a Physiotherapist assistant in Primary Care Services in Cavan, in or around November 2023, that the Complainant is a qualified Physiotherapist but could not work as a Physiotherapist because she was not at the time registered with CORU.  The Respondent outlined that the Complainant was required under her role, to travel outside of her base and that when she claimed for travel, it became apparent that her insurance policy did not indemnify the HSE as is required under the National Financial Regulations.  The Respondent submitted that the Complainant raised a grievance under the HSE grievance procedure, and that all stages of the grievance procedure were exhausted, but that the Complainant’s case was not upheld. 

The Respondent submitted that the Complainant was paid correctly and in accordance with the terms of her employment contract, for the period between 27 May 2024 and 27 November 2024.  The Respondent drew attention to section 1 of the Payment of Wages Act 1991, which sets out the definition of what constitutes wages;

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including ….

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i)               any payment in respect of expenses incurred by the employee in carrying out his employment”

The Respondent submitted that the Complainant’s case as submitted was on the basis that she had not received payment for travel.  The Respondent noted that this was an expense incurred by an employee in carrying out her employment and is therefore excluded as wages under Payment of Wages Act.  Notwithstanding that position, the complaint related to payments not made in February and March 2024, and in those circumstances the Respondent submitted that as the claim was lodged on 27 November 2024, it was outside of the time limit allowed for the claim to be made.  The Respondent submitted that the Complainant was properly paid her wages for the period and that the claim in relation to her travel was not covered by the Act.  In addition, it was the Respondent position that the claim was out of time.

In conclusion, the Respondent outlined its position that the Complainant was properly paid and that no breach of the Payment of Wages Act had taken place. 

Representations made at hearing:

Mr Ross on behalf of the Respondent, stated that while the Complainant had gone through an IR procedure in pursuing her grievance in relation to the non-payment of travel expenses,  it was open to the Complainant once she was not paid, to have put in her complaint with the WRC and in those circumstances the complaint was out of time and no extension should be granted.

He stated that in relation to the substantive issue, that while there were a lot of issues of concern raised, the only complaint that was valid for consideration was the complaint under the Payment of Wages Act and he stated that the Respondent defence of its position was entirely clear.  He stated that the Respondent had paid the Complainant all wages due to her throughout her employment and that she had been paid in accordance with her signed contract.  He stated that in the context of the exclusion of expenses from the definition of wages under the Payment of Wages Act, it was clear that travel expenses did not constitute wages and that in order to seek payment of those expenses, the claim should not have been pursued under the Payment of Wages Act.  He stated that it was abundantly clear that expenses were excluded from the provisions of the Payment of Wages Act.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties, as well as all information provided at hearing by the parties. 

Preliminary Issue – Time limit

Section 6 (4) of the Payment of Wages Act states “a rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable”.

In the instant case the Complainant submitted her complaint to the WRC on 27 November 2024, therefore the cognisable period for the complaint is from 27 May 2024 to 26 November 2024.  The complaint referred to non-payments made in February and March of 2024 and are therefore outside of the cognisable period.

In relation to an extension of the time limit Section 8 of the act states that “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director general after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The established authority on what constitutes reasonable cause was set out by the Labour Court in the case of Cementation Skanska v Carroll, DWT0338 where the Court stated:

“It is the Court’s view that in considering if reasonable cause exists, it is for the Appellant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say that it must make sense, be agreeable to reason and not be irrational or absurd.  In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Appellant at the material time.  The Appellant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the Appellant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim on time.”

The Courts have also consistently held that the processing of a grievance and the time delays that may have been associated with that process does not give rise to a reasonable cause argument.  In such circumstances the Courts have found that it at all times remained open to the Complainant to submit their complaint within the prescribed time limit from the occurrence of the breach and if the matter is ultimately resolved within the internal mechanisms the Complainant can withdraw his/her complaint.

In light of the foregoing, I find that the Complainant has not demonstrated reasonable cause to justify an extension of the time limit in this matter and in those circumstances I find that this complaint is out of time.

I have found that this complaint is out of time and therefore I do not have jurisdiction in the matter.

Payment of wages