ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00004116
Complaint for Resolution:
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-00005864-001 | 15/07/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00005864-002 | 15/07/2016 |
Venue: WRC; Lansdowne House, Dublin 4.
Date of Adjudication Hearing: 15/11/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background
The Complainant is employed as an Agency Healthcare Assistant since 3rd February 2014. She has claimed that the Respondent has made an illegal deduction from her wages.
Complainant’s Submission and Presentation:
Throughout the Complainant’s employment she has been working almost exclusively at a named hospital. On 17th January 2016 she was suspended from her employment after she sought to secure the same breaks as directly employed staff. No disciplinary procedure was used by management. On 1st April 2016 she returned to work following representation from her union. In that intervening period she had been offered alternative employment but her hours were much reduced by comparison to her previous role. Her union has sought to have her shortfall in earnings addressed without any success. It is her position that an employee’s normal pay is defined in Irish legislation, particularly during suspensions. She should have earned her normal pay during this suspension. She is seeking the difference between her earnings amounting to €3,386. No complaint was levelled against her by the Client . No disciplinary action was initiated. She was simply suspended and ordered not to return. Her losses were a direct result of her suspension. This is against Sec 5 5(1)(b) of the Payment of Wages Act. She believes that management had no right to pay her less than she would normally have worked. The Client alleged that she had taken unilateral action which she chose to take. This is disputed. In support she cited the Employment Appeals Tribunal case Murphy v Ryanair PW2/92 which stipulated that under this Act “an employee must be furnished with a written copy of such a term before the act or omission if wages are to be deducted”. She believes that the sum of €3,386 is properly payable to her. The non payment is a deduction from her wages. This is an illegal deduction from her wages and is in breach of this Act. |
|
Respondent’s Submission and Presentation:
The Respondent is an employment agency providing Agency staff to the healthcare sector when requested by a client. The agency staff whilst on assignment are under the control and direction of the Client and are paid for the hours worked. The Complainant was employed as a healthcare assistant and was placed on assignments which would vary in hours per week depending on demand, which would vary depending on the Client needs and the time of year. She worked in a number of different locations. On 17th January she was sent home by the Client when she refused to return from her break when requested to do so. After this incident her services were not required any further. As a result of this the Respondent was unable to assign her to that hospital and instead she was assigned to other Clients, details supplied. The Respondent investigated the incident that led to her removal. Following this and representations made on her behalf she was allowed to be reassigned to the hospital from 1st April 2016.
It is the Respondent’s position that they have no control over the number of staff required by the Client or the hours available. The Client has absolute control as to who is allowed to work on their sites. The Complainant’s hours of work and where she would work would vary through the course of the year. Her hours and place of work were not guaranteed. What she is claiming is not within the remit of this Act. She was not entitled to be on that site, she was never on guaranteed hour of work and she had not worked the hours that she is claiming. She has been paid for all the hours that she worked. There have been no unauthorised deductions from her wages. Therefore there are no valid grounds for a claim under this Act. In this industry it is not the practice that agency staff are paid when they are not assigned. This complaint is rejected.
Findings
I note that the Complainant is an Agency worker.
I note that she does not have a permanent contract of employment providing for payment
for full time hours.
I note that she is paid only for work assigned and hours worked.
I note that the Client has full control over who they use and the hours assigned to them.
I note that there was an incident that led to the Client removing her from their site.
I note that the Complainant supplied a statement concerning the incident. She states that a directly employed colleague of a similar grade to her instructed her to return from her break. She states “I ignored his remark and continued my break. I took one hour and ten minutes”.
Therefore I find that she did not return from her break as requested. Irrespective of the rights or wrongs of this action it resulted in the Client declining to have her work on their site.
I find that this was not a suspension from work but a Client exercising its right as to who to have working on their site.
I note that the Respondent then assigned her other work as is the practice for the Agency.
I note that following an investigation and representation to the Client the Complainant was allowed to return to that site. This is the prerogative of the Client.
I find that the Complainant did not have a contract that guaranteed her hours of work.
I find that in order to succeed with a claim under the Payment of Wages Act the Complainant has to have a contractual entitlement to the wages claimed.
In this case I find that the Complainant did not have a contractual entitlement to the wages claimed.
I find that the wages claimed were not properly payable as they were not worked and her contract provided for payment for hours worked only.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the above stated reasons I have decided that this claim should fail.
Dated: 13th December 2016