ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002324

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00003082-001	07/03/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00003082-002	07/03/2016

Date of Adjudication Hearing: 12/09/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and or Section 24 of the National Minimum Wage Act, 2000 and or Section 7 of the Terms of Employment (Information) Act, 1994 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing:

By	Complainant	Respondent
Parties	A Worker	An Employer
Representative		David Gaffney -Solicitor

Complainant’s Submission and Presentation:

While employed with Respondent Services I have been required to attend work during night hours without receiving proper pay as required by law. I received 40euro for 8 hours instead of 83.28.

When I discovered I was pregnant I notified my employer and a risk assessment was conducted I was immediately put on Health and Safety Leave in April, 2014. I was advised that this would be for a brief period and that I would be located to an alternative place of employment which did not pose such health and safety risks. This could have been facilitated by way of filling a vacancy which arose in one of the other homes or switching with another employee who was not faced with such health and safety issues. This did not occur which resulted in me suffering significant financial loss. In addition I was treated in an aggressive, intimidating and biased manner by my manager which has been the caused me severe stress. After my maternity leave finished I confirmed my intention to return to work following maternity leave and was due to return to work on 5/5/2015. Despite this I was not included on the roster for that month. Ultimately, when I was eventually included on a roster, provision was made requiring me to work night shifts "waken nights". Such working conditions had never been a part of my terms of employment over my previous four years. These changes were brought about unilaterally without any consultation with me. I was also rostered for a period which was considerably less than that which I had worker previously, which amounts to an unfair unilateral alteration in the terms of my employment.

Respondent’s Submission and Presentation:

A formal written submission was not received .However a detailed oral presentation was made, supported by relevant correspondence.

Their position was as follows

1: National Minimum Wage Act, 2000 / CA -00003082-001

The Respondent, by agreement with Employees, paid €40 per “Sleepover” duty. This was in keeping with national HSE and Allied institutions practice at that time.

The issue of the “Sleepover” duty was addressed in LCR 20837 – covering all employees under the remit either directly or indirectly of the Health Services Executive. This Recommendation was dated 18^th September 2014.The Complainant had gone on Health and Safety Leave in relation to her pregnancy on the 2^nd April 2014.

The LCR was the subject of detailed discussions between the National Parties involved and was the subject of HSE HR Circular 027 /2014 of the 12^th December 2014.

Allowing for a grace period, as was allowed for in the Circular, the new arrangements were put in place on the 1^st January 2016 by the Respondent.

The Complainant had gone on H & S leave prior to the issue of the Circular. The LCR had ruled against any retrospection. The new arrangements were available to her on her return.

Accordingly the Respondent, in following HSE Circular 027 /2015 has no case to answer.

2: Terms of Employment (Information) Act, 1994 / CA -00003082-002

The Complainant had a clear Contract of Employment and Employee Handbook that provided for employees to be fully flexible in terms of their working hours inclusive of days, evenings, sleepovers, waking nights over a 24/7 roster.

There was never any alteration to the Complainant’s Contract of Employment to justify this claim.

The relevant signed pages of the Handbook and Contracts were given in evidence.

Accordingly there is no claim to answer.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and or Section 24 of the National Minimum Wage Act, 2000 and or Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under the cited Acts.

Issues for Decision:

Did a breach of the National Minimum Wage Act, 2000 and the Terms of Employment (Information) Act, 1994 take place such as to warrant a well founded claim?

Legislation involved and requirements of legislation:

National Minimum Wage Act, 2000 and or Terms of Employment (Information) Act, 1994

Decision:

National Minimum Wage Act, 2000 / CA -00003082-001

LCR 20837 fully explored this issue on a National basis and made a recommendation which lead to HSE Circular 027 /2014.

The evidence presented was that at all times the Respondent was in compliance with the HSE requirements prior to September 2014 and covered by LCR 20837 issued in that September.

When the Complainant went on her H &S leave in April 2014 the rate for sleepovers was an agreed policy.

I could not find, in these circumstances, that the claim under the National Minimum Wage Act, 2000 was well founded. It has to be dismissed.

Terms of Employment (Information) Act, 1994 / CA -00003082-002

All the evidence presented orally and in copy correspondence pointed to clear Contracts of Employment and Employee Handbooks signed by the Complainant. There was no evidence presented of any unilateral changes, (not provide for in her Contract), to the Complainant’s contract of employment on her return to duty following her Maternity leave. The requirements pointed to by the Complainant, of different work rosters/patterns of duty on her proposed return in May 2015 were all well within the terms of her Contract. There was no requirement for a new Contract or written notice of changed terms.

Accordingly the Claim is not well founded and has to be dismissed.

Dated: 3^rd November 2016