The HSE failed to make an appearance or enter a defence against a pay claim by a psychologist who was forced to engage a solicitor after being left on part-time pay for years, despite the end of a job-sharing arrangement that left “significant unmet clinical need”.
The Workplace Relations Commission (WRC) noted that a HSE representative who corresponded about attending the hearing said she had “leave commitments” and “had to look after her grandson” – but failed to provide any supporting documentation.
In a published decision, the WRC awarded Diane O’Mahony €23,500 in her statutory pay claim after the health service was refused an adjournment in the case last August.
The employment tribunal heard that in June 2019, Ms O’Mahony was two years into a job-sharing arrangement when her partner in the contract went away and their post was left unfilled.
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Ms O’Mahony said that her line manager, Ms A, told her at this point that there was “no intention to fill the vacancy”.
The complainant said the absence of her job-sharing partner led to a “significant unmet clinical need” and “increased pressure and responsibility”.
“In effect, the complainant was no longer job-sharing,” her solicitors, Alastair Purdy & Co, submitted to the tribunal.
Ms O’Mahony said she sought to increase her hours temporarily in March 2020 as more pressure came on the service where she worked when the pandemic hit.
She said Ms A, her manager, said she supported the increase and asked her to fill out the form – but did not approve it.
When the job-sharing contract expired in May 2020, Ms O’Mahony wrote to Ms A, again asking to go back to full time hours.
Her solicitors said that, for the next two years, the complainant sought updates on the status of the application on a regular basis, and each time Ms A provided reasons for not increasing the hours and pay such as that she had no update, was using the wrong contact number and was awaiting a response.
The complainant finally engaged a solicitor in June 2021 to write to her line manager and the HSE’s human resources department over the issue, but again got “no response”, the tribunal heard.
After that, she lodged a complaint under the Payment of Wages Act 1991 – alleging an unlawful deduction of 50 per cent of her contracted pay.
The complainant’s solicitors argued their client went into the three-year job-sharing deal with the knowledge that it did not “override” her permanent contract and that she would be going back to it.
The job-sharing contract, which was opened to the tribunal, stipulated that a “suitable vacancy” had to be available and that the job-sharing had to have lasted at least three years – conditions the solicitors’ firm argued were satisfied.
The WRC heard the matter last August in the absence of any representative of the health service.
A HSE representative who was in correspondence with the employment tribunal said she had “leave commitments” and “had to look after her grandson” – but failed to provide any supporting documentation, the tribunal noted.
The adjudicating officer hearing the case, Louise Boyle, refused the HSE representative’s application for an adjournment and wrote in her decision that she was “satisfied that the respondent was on proper notice ... and could have appointed someone else to attend”.
Ms Boyle wrote in her decision that she was satisfied Ms O’Mahony was entitled by contract to get back to full time work as there was a job there for her and she had been in the job-sharing arrangement over three years.
“It would appear, therefore, that the only reason the complainant did not receive her full-time salary was owing to the failures, for whatever reason, by the manager, to process the payment,” Ms Boyle wrote.
However, she refused an application by Ms O’Mahony’s solicitor to extend jurisdiction from six months to 12, writing that although the complainant might have expected Ms A to resolve the matter each time she asked, that “does not excuse why the complainant did not submit her complaint earlier”.
Upholding the complaint against the HSE under the Payment of Wages Act 1991, Ms Boyle wrote that Ms O’Mahony was due the difference in her pay between December 2020 and June 2021, a sum of €23,452.71.
