Complainant

Respondent

Anonymised Parties

{A Pre-registration Nurse}

{A Nursing Home}

Representatives

In person

Hayes Solicitors

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-00012824-001

27/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012824-002

27/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00012824-003

27/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012824-004

27/07/2017

The complainant was employed by the Respondent from 1st November 2016 until 23rd July 2017. The complainant was employed initially as a Carer and subsequently began training as a pre-registration nurse on 30th January 2017 and completed that training programme on 7th June 2017. The complainant was paid €10.00 gross per hour while working as a Carer and €12.50 per hour as a pre-registration nurse. The complainant submitted her resignation to the Respondent on 20th July 2017 and her last day of work was 23rd July 2017.

The complainant contends that she was paid incorrectly while in the employment of the Respondent. The complainant’s position is that her rate of pay should have increased from €12.50 per hour to €18.00 per hour with effect from 16th April 2017. The complainant contends that the arrears of pay that she is entitled to amounts to €3007.54.

The Respondent refutes the complaint. The Respondent stated that the complainant’s contract of employment provides that the period of training as a pre-registration nurse is paid for at the rate of €12.50 per hour. The rate is subsequently increased to €18.00 per hour on completion of the pre-registration nursing training. The Respondent contends that in this case, the pay increase to €18.00 per hour became due for payment on 3rd June 2017 following the completion of the training. The Respondent stated that, as a gesture of goodwill, the rate of pay was increased to €18.00 per hour with effect from 1st May 2017.

The Respondent calculated that the arrears of pay due to the complainant amounted to €2,247.16 and the Respondent stated that this was included in the complainant’s last payslip.

The Respondent did not actually pay the complainant the arrears of pay due to her. The Respondent contends that it withheld payment on the basis of the money the complainant was contractually obliged to repay the Respondent as a result of leaving her employment within the first year. The Respondent quoted the following excerpt from the complainant’s contract of employment:

As you are aware [ name of Nursing Home operator] is making a significant investment in you as an individual and as a professional, and in your future career with [name of nursing home operator]. This investment in you approximates to €14,000. In return for this investment we have an expectation that you will remain in our employment for at least 24 months. As advised at interview we will look to recover part or all of this investment if you resign within 24 months of your start date. The level of recovery sought by the Company, voluntarily initially and legally if required, will depend on the length of your employment should you decide to resign your position within the 24 months of your start date, as follows, a) if you resign within 12 months of your start date, we will look to recover the full €8000, b) if you resign in the 13 to 18 month period following your start date, we will look to recover €6000 and, c) if you resign in the 19 to 24 month period following your start date, we will look to recover €4000. If there are exceptional circumstances which necessitate your resignation within 24 months of your start date these exceptional circumstances may be taken into consideration, in relation to the recovery of this investment, but it is at the complete discretion of the Company.

The Respondent also contends that it acted in accordance with Section 5 of the Payment of Wages Act, 1991 which states as follows:

5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

( b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

( c) in the case of a deduction, the employee has given his prior consent in writing to it.

In relation to this complaint, the provisions of the complainant’s contract are clear. The rate of pay was due to be increased from €12.50 per hour to €18.00 per hour on completion of the pre-registration nurse training which occurred on the 7th June 2017.

I accept that the Respondent back dated the pay increase to 1st May 2017 and I accept the Respondent’s calculation of the arrears of pay of €2,247.16 that were due to the complainant.

In relation to the non-payment of the arrears I find that the Respondent acted in compliance with Section 5 of the Payment of Wages Act, 1991 and within the terms of the complainant’s contract of employment in withholding the payment on the basis of the money that the complainant was contractually obliged to repay the Respondent.

On the basis of the written and verbal submissions of the parties, and all of the evidence adduced at the hearing of this complaint, I find that this complaint is not well founded.

The complainant contends that she is owed €164 in relation to three Public Holidays; 17th March 2017, 1st May 2017 and 5th June 2017.

In respect of 17th March 2017, the complainant contends that she received 7.5 hours Public Holiday Benefit but claims to be entitled to 11.5 hours as this was the normal length of her shift. The complainant is seeking the additional 4 hours @€12.50 per hour. (Total €50).

In respect of the 1st May 2017 and 5th June 2017, the complainant contends that she got paid €150 per day and worked 11.5 hours each day. The complainant states that she should have been paid €207 per day. The complainant is seeking that she be paid an additional €57 Public Holiday benefit per day. (Total €114).  

In respect of 17th March 2017, the Respondent contends that the complainant was paid Public Holiday Benefit of one-fifth of the normal weekly rate of pay. The Respondent contends that this is in line with the provisions of S.I. 475/1997 – Organisation of Working Time (Determination of pay for Holidays) Regulations 1997.

The Respondent contends that the complainant was paid double time for each of the bank holidays that she worked (1st May 2017 and 5th June 2017).

Public Holiday entitlements are set out in Section 21 of the Organisation of Working Time Act, 1997 as follows:

21.(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

( a) a paid day off on that day,

( b) a paid day off within a month of that day,

( c) an additional day of annual leave,

( d) an additional day’s pay:

I find that in respect of the Public Holiday that occurred on 17th March 2017, the complainant did not work on that day and was paid Public Holiday Benefit of one-fifth of the normal weekly rate of pay. I find the Respondent acted in accordance with the provisions of S.I. 475/1997 – Organisation of Working Time (Determination of pay for Holidays) Regulations, 1997 on this matter.

I find that the complainant was paid incorrectly for the Public Holidays that occurred on 1st May 2017 and 5th June 2017. The complainant submitted payslips for the periods in question. For each of the Public Holidays the payslips show payments for 12 hours totalling €300 per Public Holiday. The Respondent stated that the complainant was paid double time for each of the two Public Holidays. This amounts to €25 per hour for each of the 12-hour shifts based on an hourly pay rate of €12.50

I find that the Respondent increased the complainant’s rate of pay to €18.00 per hour with effect from 1st May 2017. On that basis, the complainant was entitled to be paid €36 per hour for each of the 12-hour shifts. The total due to the complainant per Public Holiday was therefore €432. The complainant is therefore entitled to be paid an additional gross payment of €132 for each of the two Public Holidays that she worked.

On the basis of the written and verbal submissions of the parties, and the evidence adduced at the hearing of this complaint, I find that the complaint is well founded in part. The Respondent is directed to pay the complainant a gross payment of €264 in respect of the Public Holidays that occurred on 1st May 2017 and 5th June 2017. This payment should be made within six weeks of the date of this decision.

The complainant contends that she is owed €279.22 in respect of annual leave entitlements. The complainant contends that the calculation is based on hours of annual leave owed both before and after her rate of pay was increased to €18 per hour on 1st May 2017.

The Respondent contends that the complainant was entitled to 113.93 hours of annual leave for the entire period of her employment calculated as 8% of the total number of hours worked (1424.15). The Respondent contends that this is in compliance with Section 19(1)(c) of the Organisation of Working Time Act, 1997. The Respondent contends that annual leave entitlements of €462.96 (which equated to 13.19 hours in excess of her entitlements) were included on the complainant’s last pay slip but were not ultimately discharged to her due to the money that the Respondent contends it is owed from the complainant.

Annual leave entitlements are set out in Section 19 of the Organisation of Working Time Act, 1997 as follows:

19.— (1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

( a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

( b) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

( c) 8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

There is no provision in the Organisation of Working Time Act 1997, that allows annual leave entitlements to be withheld to offset payments that may be owed to the Respondent. This has been confirmed previously by the Labour Court in Labour Court Determination No: DWT1285

On the basis of documents submitted by the Respondent, I find that the complainant had an entitlement to 113.9 hours of annual leave and took 101.4 hours between Week 14 and Week 21 of 2017. The complainant, therefore, had a remaining entitlement to 12.5 hours of annual leave when she left her employment in July 2017.

I find that the complainant is entitled to a gross payment of €225 (€18 per hour x 12.5 hours) in respect of untaken annual leave at the time her employment ended.

I also find that the Respondent infringed the complainant’s employment rights by withholding her annual leave entitlements and the complainant has been without this payment for a number of months. On that basis, I award the complainant €250.00 in compensation.

On the basis of the written and verbal submissions of the parties and the evidence adduced at the hearing of this complaint, I find that the complaint is well founded. The Respondent is directed to pay the complainant a gross payment of €225 in respect of untaken annual leave at the time her employment ended and compensation in the amount of €250 for the infringement of her employment rights with respect to annual leave entitlements. Payments should be made within six weeks of the date of this decision.

The complainant states that there is a penalty clause within the contract of employment whereby the complainant will be fined €8000 if she leaves her employment within 24 months of commencement. The complainant contends that she left her work due to health and safety concerns and poor working conditions. The complainant contends that her entitlements with regard to annual leave, public holidays and backdated pay increases have been withheld by the Respondent. The complainant contends that arrears of pay amounting to €2257.75 are owed to her and she is seeking payment of same.

The Respondent stated that the complainant’s signed contract of employment provides as follows:

As you are aware [ name of Nursing Home operator] is making a significant investment in you as an individual and as a professional, and in your future career with [name of nursing home operator]. This investment in you approximates to €14,000. In return for this investment we have an expectation that you will remain in our employment for at least 24 months. As advised at interview we will look to recover part or all of this investment if you resign within 24 months of your start date. The level of recovery sought by the Company, voluntarily initially and legally if required, will depend on the length of your employment should you decide to resign your position within the 24 months of your start date, as follows, a) if you resign within 12 months of your start date, we will look to recover the full €8000, b) if you resign in the 13 to 18 month period following your start date, we will look to recover €6000 and, c) if you resign in the 19 to 24 month period following your start date, we will look to recover €4000. If there are exceptional circumstances which necessitate your resignation within 24 months of your start date these exceptional circumstances may be taken into consideration, in relation to the recovery of this investment, but it is at the complete discretion of the Company.

The Respondent contends that, as the complainant resigned with the first 12 months of employment, it is entitled to recoup €8000 of its investment from her. The Respondent also relied on Section 5 (1) (b) an (c) of the Payment of Wages Act, 1991 which provides as follows:

5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

( b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

( c) in the case of a deduction, the employee has given his prior consent in writing to it.

In relation to recouping monies owed to it, the Respondent stated that the complainant’s contract of employment also provides as follows:

[Name of Nursing Home operator] reserves the right at its absolute discretion to deduct from your wages any sums which you may owe the Company such as any overpayment or loans made to you or charges for items provided to you if you lose same or fail to return same to [Name of Nursing Home operator].

On this complaint, and specifically with regard to the withholding of pay arrears, I find that the Respondent acted in accordance with the terms of the legislation and the provisions of the complainant’s contract of the employment.

The issues of pay, annual leave and public holiday entitlements have been decided upon earlier in this referral.

On the basis of the written and verbal submissions of the parties and the evidence adduced at the hearing of this complaint, I find that this complaint is not well founded.

Arrears of pay, recoupment of investment, Public Holiday Entitlement, Annual Leave Entitlement