FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 20(1), INDUSTRIAL RELATIONS ACT, 1969 PARTIES : WATERFORD SENIOR CARE LIMITED TRADING AS HOME INSTEAD SENIOR CARE - AND - A WORKER (REPRESENTED BY NOLAN, FARRELL & GOFF SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Ni Mhurchu |
1. Various Issues
BACKGROUND:
2. Waterford Senior Care opened in January 2009 and provides private care to clients and care on behalf of the Health Service Executive. Currently the Company employs 61 Caregivers throughout the southeast, their hours are allocated on each Caregiver's availability and the needs of the client. The Claimant commenced her employment in September, 2010 and according to Management is still an employee despite not being placed on the roster for some weeks since she was replaced on her live-in assignment by another Caregiver.
On the 22nd September, 2011 the Worker referred the issue to the Labour Court, in accordance with Section 20(1) of the Industrial Relations Act, 1969. A Labour Court hearing took place on the 9th November, 2011.
The Union agreed to be bound by the Court’s Recommendation.
WORKER'S ARGUMENTS:
3. 1. The shifts lasted for 24 hours duration, but she only got paid for 8 hours and did not get any breaks.
2. The Worker's reputation was tarnished by removing her from the roster without fair and proper procedures.
COMPANY'S ARGUMENTS:
4. 1. The Company offers casual hours of employment. The Caregiver informs Management of their availability and the rostered hours are allocated on a weekly basis. There are no guaranteed hours of work and shifts vary from week to week.
2. The Claimant is a valued employee and we are actively looking for hours that suit her preferred schedule of working with clients with dementia.
RECOMMENDATION:
- The issue before the Court concerns the removal of the Claimant from live-in care without notice or reason and the Claimant’s contention that such removal was in fact a dismissal. Further claims referred to concerning the Claimant’s conditions of employment as a live-in carer were subsequently withdrawn on the basis that the Claimant both accepted that they were as per her contract of employment and she informed the Court that she did not have a problem with the conditions.
The employer disputed that the Claimant had been dismissed and outlined the reasons for her removal from the particular client where she worked as a live-in carer.
Having considered the submissions of both parties the Court is satisfied that there was no dismissal and the removal of the Claimant from live-in care in the circumstances described by the employer was for operational reasons and in line with her contract of employment. However, the Court is of the view that the circumstances of the removal of the Claimant were inappropriately dealt with by the employer and furthermore the employer has failed to offer the Claimant any alternative employment since her removal.
The Court recommends that the employer should write to the Claimant to reaffirm her employment status and indicate the work options available to her.
The Court so recommends.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th November, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Recommendation should be addressed to John Foley, Court Secretary.