Case Number: ADJ-00008882. Workplace Relations Commission

• Docket Number: ADJ-00008882
• Hearing Date: 04 November 2021
• Date: 28 March 2022
• Court: Workplace Relations Commission
• Respondent: Irish Prison Service

Procedure:

These complaints were submitted to the WRC on May 23rd 2017. In 2015, the complainant had a different complaint under the Payment of Wages Act heard by a Rights Commissioner and the outcome was appealed to the Employment Appeals Tribunal. Hearings at the Tribunal took place on May 26th and November 30th 2016, and on January 31st 2017. An appeal to the High Court followed, but this was adjourned to allow the parties to engage in mediation. While that process was underway, it was agreed that a hearing of the complaints listed above would be adjourned, and considered at a later date.

In September 2021, in accordance with section 41 of the Workplace Relations Act 2015, the complaints listed above were assigned to me by the Director General. I conducted a remote hearing on November 4th 2021, at which I gave the parties an opportunity to be heard and to present evidence relevant to the complaints.

Dr Moola is a doctor at Cloverhill Prison in Dublin. He was represented at the hearing by Mr Thomas Smyth of the Irish Medical Organisation (IMO). The Irish Prison Service (IPS) was represented by Mr Glen Gibbons BL, instructed by Ms Jennifer Murray of the Office of the Chief State Solicitor. Witnesses for the IPS were retired governor Mr Liam Dowling and Mr Tom Doyle of the Employment Law Directorate of the IPS. Ms Vivienne Matthew O’Neill of the Employment Law Directorate also attended the hearing. In advance of giving their evidence, the witnesses affirmed their solemn intention to tell the truth.

The day after the hearing of this complaint, on November 5th 2021, on behalf of Dr Moola, Mr Smyth sent an email to me at the WRC, which was copied to the respondent’s side. In this correspondence, Mr Smyth challenged the authenticity of a document submitted by the IPS at the hearing. He had raised the matter at the hearing itself. I will address this in the section below headed “Findings and Conclusions.” In reaching my decision regarding Dr Moola’s claims, I have considered the documents provided in advance of the hearing, as well as Mr Smyth’s email of November 5th 2021, and the evidence given by the witnesses for both sides at the hearing itself.

The complaints listed above concern an allegation that the respondent made an illegal deduction from the complainant’s wages in 21 weeks between December 16th 2016 and May 5th 2017. This is one of a block of nine separate complaints related to the period from January 21st 2016 up to August 17th 2020. (ADJ-00003625, ADJ-00006524, ADJ-00008882, ADJ-00011768, ADJ-00014255, ADJ-00017122, ADJ-00020749, ADJ-00025327, ADJ-00029618) Although there are 21 complaints presented for consideration here, each one is concerned with the same issue and, for this reason, I will refer to the 21 complaints as “the complaint.”

While the parties are named in this decision, I will refer to Dr Moola as “the complainant” and to the Irish Prison Service as “the respondent.”

Background:

From January to November 2006, the complainant was employed by a GP locum agency and worked as a doctor in Cloverhill Prison. He returned home to South Africa at the end of 2006 and while he was there, he was contacted by the then governor of Cloverhill, Mr Liam Dowling. Mr Dowling informed the complainant that a vacancy had arisen due to the resignation of the full-time doctor and he invited him to apply for the job. The complainant decided to return to Dublin and, on January 22nd 2007, while he was waiting for the job to be advertised, he commenced working on a temporary basis as a prison doctor in Cloverhill. The permanent job was never advertised and the complainant is now employed as a doctor in Cloverhill on a contract of indefinite duration. In contravention of section 5 of the Payment of Wages Act 1991, the complainant alleges that the respondent made an illegal deduction from his wages, by reducing his weekly on-call allowance from €199.39 to €99.69 (from €10,404 to €5,202 per year). The reduction happened on August 5th 2010 and, since that date, the complainant is paid a weekly allowance of €99.69, compared to €199.39 which he was paid from January 2007. The reduction in the on-call allowance coincided with a temporary cut in allowances between 2009 and 2013 for the majority of public servants, arising from the provisions of the FEMPI legislation[1]. The FEMPI cuts came into effect in January 2010, although the cut in the allowance for prison doctors was not implemented until August that year. On that date, the complainant’s allowance was reduced by half, and the FEMPI cut was also applied, reducing the on-call allowance to €94.71 per week. These complaints of an illegal deduction in pay are concerned only with the 50% reduction in the allowance and not with the FEMPI cut.

Summary of Complainant’s Case:

Summary of the Written Submission From his work as a locum in 2006, the complainant understood the concerns of doctors in the prison service, including the fact that there had been no pay increase since 2004, the pay for on-call and out of hours duty was low and there was an issue over hours of attendance. In January 2007, to attract him back from South Africa, Mr Smyth said that the IPS negotiated an “individualised verbal contract” with the complainant. The “individualised terms” offered included a weekly on-call allowance of €199.39. Prison doctors employed on standard terms contained in a 2004 template contract are paid this rate per fortnight. The details of the complainant’s individualised contract were never reduced to writing; rather, his verbal contract provided that he would be paid as a full-time prison doctor with benchmarked increases, including back-pay, 42 days’ annual leave and double the on-call allowance in the 2004 contract. He also asserted that, separately to his employment contract, it was agreed that he would be a supplier to the IPS to provide emergency evening and weekend attendance at the hourly rate for locum doctors. This arrangement changed in 2011, when the complainant was discontinued as a supplier and set up as a temporary employee to provide out of hours cover. This temporary contract status was in addition to his full-time position. Mr Smyth argued that the on-call allowance is directly associated with the complainant’s service providing out of hours emergency cover. As part of his individualised verbal employment contract to take up the post as a prison doctor, the complainant was also allowed to work outside the prison. A copy of a letter from an assistant governor in Cloverhill dated July 26th 2007 was submitted in evidence which shows that the IPS supported the complainant’s application to apply for a Business Permit visa. Mr Smyth argued that the decision of the former Employment Appeals Tribunal (EAT) in the complainant’s previous claim against the IPS[2] has a significant bearing on this complaint. He said that “the fundamental issue of contention is the same” where the IPS claims that the complainant is bound by the 2004 template contract and they deny the existence of “an individualised verbal employment contract.” On May 8th 2017, the EAT determined that the decision of the IPS to reduce the complainant’s wages to reflect the hours he attended in the prison was in contravention of the provisions of the Payment of Wages Act. Mr Smyth said that the IPS has been attempting to move the complainant to the 2004 template contract, which was not issued to him at the commencement of his employment in 2007. When he returned to Cloverhill in 2007, he did not refuse to sign the template contract, because he wasn’t given it to sign. The fact that the IPS has remunerated Dr Moola differently and that he works under terms that differ from the 2004 template contract is, Mr Smyth submitted, “clear evidence of his individualised verbal employment contract.” The IMO position is that the argument as to whether Dr Moola is bound by the 2004 template contract has already been determined by the EAT. Since he commenced in the role of prison doctor in Cloverhill in 2007, the complainant has provided medical cover for 24 hours a day, seven days a week, except when he is on annual leave. In his submission, Mr Smyth described the many innovations undertaken by the complainant, including the introduction of in-house services such as phlebotomy, STI screening and treatment and suturing. The initiatives he introduced have improved patient care and generated a significant cost-saving by reducing hospital visits with the attendant security risks. The complainant completed a Higher Diploma in Medicine Dermatology and he initiated nurse prescribing. He was to the forefront of an exercise to update the skills of prison doctors in infectious diseases. In 2009, he helped to reduce locum costs by 40% by extending his regular weekend clinics to Wheatfield Prison. It is the complainant’s case that a valid contract of employment was entered into between him and the IPS in January 2007. The terms of this individualised contract provide for a specific on-call allowance payment and an emergency attendance rate. The fact that the respondent respected the complainant’s terms and conditions for a number of years is evidence of the agreed nature of the terms. In February 2010, the respondent attempted to get the complainant to sign...