ADJUDICATION OFFICER DECISIONS

Adjudication Decision Reference: ADJ-00004669 (a) and ADJ-00004669 (b)

Complaints and Disputes for Resolution:

Date of Adjudication Hearing: 12th January 2017.

Workplace Relations Commission Adjudication Officer: Seán Reilly

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015, Section 13 of the Industrial Relations Act 1969, Section 27 of the Organisation of Working Time Act 1997, Section 6 of the Payment of Wages Act 1991, Section 7 of the Terms of Employment (Information) Act 1994 and Section 7 of the Protection of Employee (Fixed-Term Work) Act 2003 and following the referral of the complaints and disputes to me by the Director General, I inquired into the complaints and disputes and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints disputes.

Summary of Complainants’ Position:  

The Complainant’s Representative said the matters referred to a number of complaints by the two complainants under the following Acts:-

1. Industrial Relations Act 1969

2. Organisation of Working Time Act 1997

3. Payment of Wages Act 1991

4. Protection of Employees (Fixed-Term Work) Act 2003, and;

5. Terms of Employment (Information) Act 1994.

The Complainants’ Representative said they specifically claimed that:

1. Under the Industrial Relations Act 1969 they became recognised employees of the Respondent and in this regard they also claim they are entitled to parity with the Respondent’s employees, specifically Home Helps

    

2. Under the Organisation of Working Time Act 1997 they complain that they are not in receipt of daily rest periods or breaks at work.

    

3. Under the Payment of Wages Act 1991, the claim that they are owed wages in respect of time spent travelling to work.

    

4. Under the Protection of Employees (Fixed-Term Work) Act 2003, the Respondent failed to provide them with a written statement setting out the objective grounds justifying the renewal of a fixed-terms contract of employment and further failed to provide them with a contract of indefinite duration.

    

5. Under the Terms of Employment (Information) Act 1994 they claim the Respondent did not provide them with a written statement of their terms and conditions of employment.

The complainants said they are both employed as hospice care workers who worked in a named area.   Complainant (a) commenced employment in 2005 and Complainant (b) commenced employment in June 2010.   When they applied for the positions of hospice care workers, the complainants were interviewed by the Clinical Nurse Manager, an employee of the Respondent and the CEO of a named Hospice was also in attendance.

The complainants’ said they were never provided with permanent contracts of employment on commencing their employment.   They said they travel around a named County caring for people in their homes and were only given temporary contracts for the period of time they were with each patient/client.   The complainants said that when the patient died the contract expired and that thus there were periods between the contracts when they were not in receipt of any wages.   They said that this was not considered to be a lay-off period they were merely deemed to be not working.  

The complainants said they typically work 30 – 45 hours per week.  

The complainants said they are not afforded daily rest periods of daily breaks at work.    They said they work nights to give the family of the patient a break and so are awake all nights, caring for patients.   They said that they would always work 8 hours per night.

The complainants said the nature of their work means they could be placed in any home around the named County, with only 24 hours notice; however they are not paid for any of the time spent travelling to the patients’ homes.   They do not receive payment in respect of mileage; however there are times when they may be travelling up to 2 hours from their home to reach their place of work and are not receiving any wages to reflect this.

The complainants said they believe the Respondent to be their employer.   The Respondent pays their wages and is named on their pay statements and their P60’s and it is also the case that their pay statements are sent to the Respondent in a named location.   The complainants also believe they are on the same pay scale as ‘Home Helps’ of the Respondent.   In fact the temporary contracts of employment they received stated that the “rate of payment shall be as per Home Help flat rate for hours actually worked.”   They said they were employed by the Respondent and therefore were permanent employees due to the fact that their continuity of employment had not been broken.

The complainants said that subsequent to them submitting their complaints/claims to the WRC, on 23^rd December 2016, they received a letter from the Respondent stating that they are employees of the Respondent and as such are entitled to contracts of indefinite duration.   These contracts will be aligned to the Home Help Contract and they will be paid at the 6^th point of the Home Help Salary Scale and the correspondence stated that the complainants would be set up as permanent employees from 1^st January 2017.

1   Industrial Relations Act 1969 Claims                                                                                               .               The complainants said that Respondent now appears to accept that they are employees of the Respondent.    

The complainants said the Respondent also now appears to accept that they should be on the same pay scale as ‘Home Helps’.

The Respondent’s Representative said it is correct and right that the Respondent attempted to mend their hand in regards to the above matters when they wrote to the complainants on 23^rd December 2016 and confirmed them to be employees of the Respondent, offering them contracts of indefinite duration.     The Representative said it is also true to say the complainants have, in reality been employees of the Respondent from the outset of their time as hospice care workers.   They said that it is therefore unfair of the Respondent to state that the complainants would be set up as permanent employees from 1^st January 2017.   It was submitted that the complainants are entitled to receive the back pay that is due and owing to them since their respective commencement of employment dates as hospice care workers.

2. Organisation of Working Time Act 1997 Complaints                                                                               . The complainants said that they typically they work 30 – 45 hours per week and that they were not afforded breaks at work or daily rest periods.

The complainants gave direct evidence and they said that they regularly would start work at 11.00pm and finish at 7.00am the following morning, without any break.   They said it was a regular occurrence that they would not have a rest period of 11 consecutive hours between finishing work one day and starting work the following day and they provided examples of this.

The complainants submitted that accordingly the Respondent was in breach of their rights and entitlements under Section 11 of the 1997 in relation to daily rest period and of Section 12 of the 1997 Act in relation to breaks during the working day.

The complainants sought redress in accordance with the provisions of the 1997 Act.

3. Payment of Wages Act 1991 Complaints                                                                                                                  The complainants submitted that they were due and owed wages in respect of time spent travelling to work.   They said that the nature of their work requires them to travel all around the named County to attend at the homes of their patients.   They said they could be placed in any home around the named County with only 24 hours notice, however they were not paid for the time spent travelling to these homes.  

They said they do not receive payment in respect of mileage; however there are times when they may be travelling for up to two hours from their home to reach their place of work and are not receiving any wages to reflect this fact.

The complainants sought that they be paid for such periods.

The complainants referred to the ECJ Judgement in the case of Federación de Services Privados del sindicato Comisiones Oberas -v- Tyco Integrated Security SL & Anor Case C-266/14 which they said fully supported their position.

4. Protection of Employees (Fixed-Term Work) Act 2003 Complaints                                                                    The complainants said they were never provided with a permanent contract of employment upon the commencement of their employment.   They said they travel around the named County caring for patients in the patients’ home.   Both complainants have received successive fixed-term contracts of employment and they said the Respondent never set out the objective grounds justifying the renewal of these contracts of employment.

The complainants sought that their complaints under the Act be upheld and that they be awarded redress in accordance with the provisions of the Act.

5. Terms of Employment (Information) Act 1994                                                                                                 The complainants said that they were never provided with a written statement of the particulars of their terms and conditions of employment in accordance with the provisions of Section 3 of the 1994 Act and they sought redress in accordance with the provisions of the 1994 Ac

Summary of Respondent’s Position:

The Respondent said the issues before the Hearing concern the pay rates, hours of work and related matters of the two complainants for the work they carry out.

The Respondent said that the Hospice for the named area was established approximately 20 years ago to provide palliative care support to patients in 3 named counties.   They said that at that time there was a commitment given to build 2 hospice centres across the 3 counties and sites were provided by the Respondent.

The Respondent said that a ‘Sitter Service’ was established in 2005 whereby following a recruitment campaign, 6 people were employed to provide that ‘Sitter Service’ utilising hospice services and those 6 persons employed were provided with ‘as and when required’ contracts of employment from Hospice.   They said that these jobs were funded by Hospice.   The Respondent said that the successful applicants were advised by Hospice and contracted by the Respondent’s Palliative Care advising them of patients and their hours of work etc.  

The Respondent said that ‘Sitters’ visit the patients home and either sit with the patients for companionship or complete tasks as deemed appropriate.   This service is provided to the named County and the Respondent said they do not provide a ‘Sitter Service’.

The Respondent said the complainants commenced employment in May 2005 and July 2010 respectively.   The Respondent said that it was agreed between them and Hospice that the complainants and other sitters would be paid through the Respondent’s payroll as Hospice did not have a viable Human Resource/Payroll System in place at the time and the costs of salary and travel were then recouped from Hospice on a 6 monthly basis.   Time sheets and travel sheets were signed monthly by Palliative Care Management and forwarded to the Respondents Payroll Section.   Annual Leave and training requirements were monitored and management provided by Palliative Care Management; training was funded by Hospice.

The Respondent said Hospice 'as and when required' contracts of employment for each patient were issued to Sitters by Palliative Care Management and these contracts were only changed if a patient passed away, was discharged or there was an increase/decrease in service requirements.  

The Respondent said that Palliative Care Management have informed that a one hour break was allocated when Sitters were travelling between patients, e.g. a one hour journey between 2 patients’ houses would incur an additional one hour break and therefore the Sitter would have 2 hours between patients’ houses.

The Respondent said that the two complainants continued to be employed as Sitters for Hospice and they continued to be paid by the Respondent.

The Respondent quoted Section 9 of the Protection of Employees (Fixed-Term Work Act) 2003.

The Respondent acknowledged that the complainants have been treated less favourably than their comparable comparator’s, i.e. Home Helps.   The Respondent said that in light of this and following consultation with Hospice, the Respondent has issued the complainants with a Letter of Offer dated 23^rd December 2016 and a Fixed-Term Workers Pack.   The Respondent said that if this is accepted the two complainant’s will be issued with a Contract of Indefinite Duration (CID), comparable with Home Helps with associated terms and conditions of employment and will be placed on the appropriate point of the Home Helps Salary Scale, i.e. the maximum point on the Scale for Complainant (a) and the 6^th point on the Scale for Complainant (b) and the contract is offered at full-time hours, i.e., 39 hours per week.

The Respondent said that once these issues were brought to the attention of their senior management a process was put in place to rectify the employment status of the two employees concerned.     The Respondent acknowledges that the two complainants are employees of the Respondent.   They said that heretofore the two complainants were considered direct employees of Hospice and subsequently bound by the contracts issued by Hospice.   The Respondent said that this is no longer the case and both of the complainants are now employees of theirs, with the associated terms and conditions that apply.   The Respondent sought to establish the cost implication of regularising the employment, and once this was established, approval was sought from the Head of Service of Primary Care and the appropriate paperwork was issued.

The Respondent said that they are committed to retrospectively addressing the financial shortfall experienced by the two complainants and the appropriate payment will be made to them.

In response to questions and in discussions the Respondent confirmed the following:

• That the two complainants had not been provided with written statements of their terms and conditions of employment in accordance with the provisions of Section 3 of the Terms of Employment (Information) Act 1994.   However they said they were committed to, and would very shortly be providing each of the two complainants with such statements that fully complied with the requirements of the 1994 Act.

   

• That the two complainants did not receive daily rest periods in accordance with the provisions of Section 11 of the Organisation of Working Time Act 1997 - and also that the two complainants did not receive rest and intervals (breaks) during their working day in accordance with the provisions of Section 12 of the Organisation of Working Time Act 1997. The Respondent did not contest the direct evidence given by the complainants in respect of these two complaints.

   

• That the two complainants were not provided with written statements in accordance with the provisions of Section 8 of the Protection of Employees (Fixed-Term Work) Act 2003 setting out the objective grounds determining and justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration (CID).     However the Respondent submitted that they were now correcting this by providing the two complainants with contracts of indefinite duration/permanent contracts.

The Respondent submitted that they were in the process of addressing all of the issues raised by the two complainants.

Following the Hearing the Respondent, as requested at the Hearing, submitted further specific submissions as follows.

The Respondent said that in accordance with the provisions of the Organisation of Working Time Act 1997, appropriate breaks have been incorporated into the two complainants’/employees’ newly established daily roster, that if they work for a period of 4 hours and 30 minutes they will be afforded a break of at least 15 minutes and if they work for 6 hours they will be afforded a break of least 30 minutes.

The Respondent said that that in addition, appropriate daily rest periods in accordance with the provisions of the Organisation of Working Time Act 1997 have been taken into account in the two complainants newly established daily roster and that the two employees will be entitled to a rest period of not less than 11 consecutive hours in each 24 hour period during which they are working for the Respondent.

The Respondent said that a work base for the two complainants has been identified and they have been informed of this base.

Findings, Decisions and Recommendations:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints and disputes in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 14 of the Protection of Employees (Fixed-Term) Work Act 2003 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of the same Section of the 2003 Act.

Section 7 of the Terms of Employment (Information) Act 1994 requires that I make a decision in relation to the complaints in accordance with the relevant provisions of the same Section of the 1994 Act.

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation setting forth my opinion on the merits of the disputes.

Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to the complaints in accordance with the relevant provisions of the same Section of the 1991 Act.

Section 27 of the Organisation of Working Time Act 1997 requires that I make a decision in relation to the complaints in accordance with the relevant provisions of the same Section of the 1997 Act.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I note that much of the two complainants claims and complaints have been taken on board and dealt with or are in the course of being dealt with by the Respondent and in particular they have been offered full-time, permanent contracts of employment and stipulated bases for work purposes.   Albeit that this happened after the complaints and claims were submitted to the WRC I accept that the Respondent is entitled to some credit for this and I note that it was accepted by the Complainants that if was correct and right that the Respondent attempted to mend or correct matters.   I am taking this fact into account in my conclusions.

It was confirmed to me at the Hearing that both complainants were paid €13.52c per hour and that their normal working week is 39 hours per week; this makes their normal weekly rate of pay €527.28c and this is the figure I am using in my recommendation and decisions.

The following are my findings and decisions in relation to the specific complaints and claims of the two complainants under the 5 Acts:

Complainant (a) ADJ-00004669(a):                                                                                                                           

Industrial Relations Act 1969 Complainant: CA-00006368-001:                                                 .                                                                        I have carefully considered the evidence and the submissions made and I have concluded as follows.

I understand that much of the claim raised by the Complainant have been resolved and/or conceded by the Respondent and thus much of the claim under the 1969 Act is conceded by the Respondent.

It is my understanding that the Complainant is now a recognised employee of the Respondent as sought and is being paid at the same rate as Home Helps with full recognition for service since she commenced employment in May 2005 and the Respondent has further committed to pay any shortfall in wages due to the Complainant based on the Home Help Pay Scales since she commenced employment in May 2005.   I further understand that a work base for the Complainant has been agreed.   However should any of this not be the case, I now recommend as a full and final settlement of all matters in dispute under the Industrial Relations Act 1969, that this be now completed by the Respondent within 4 weeks of the date of this recommendation.

For the avoidance of doubt I wish to confirm that this recommendation is particular to the unique facts of this case and it cannot and will not be used or quoted by either party or any other party in any other case.

Terms of Employment (Information) Act 1994: CA-00006670-002:                                                           . It is not in dispute that the Complainant was not provided with a written statement of the particulars of her terms and conditions of employment in accordance with, and that complied with the provisions of Section 3 of the Terms of Employment (Information) Act 1994 and accordingly I must find and declare that the complaint under Section 7 of the 1994 Act in relation to Section 3 of the 1994 Act is well founded and it is upheld.   However I note that the Respondent stated that they were in the process of providing the Complainant with such a statement.

I find and declare that the complaint is well founded and it is upheld.   If the Respondent has not already done so I require that they now provide the Complainant with a written statement that fully complies with Section 3 of the 1994 Act and that confirms the Complainant’s start or commencement date of employment as May 2005 and that this be completed within 4 weeks of the date of this decision.   In addition and as also provided for in Section 7 of the 1994 Act I consider that the amount of compensation that is just and equitable in the instant case is €550.00c and I require the Respondent to pay the Complainant that amount within 6 weeks of the date of this decision.

Organisation of Working Time Act 1997: CA-00006368-002 and CA-00006368-003:                             . It is not in dispute that the Complainant was not afforded daily rest periods in accordance with the provisions of Section 11 of the Organisation of Working Time Act 1997 in the relevant period.     Accordingly I must find and declare that the complaint under Section 27 of the 1997 Act in relation to daily rest periods in accordance with the provisions of Section 11 of the Organisation of Working Time Act 1997 is well founded and it is upheld.   However I am also taking into account that the Respondent has now put in place new rosters for the Complainant that will ensure that she receives daily rest periods of at least 11 hours in each 24 hour period during which she is working for the Respondent.

I have upheld the complaint in relation to daily rest periods in accordance with the provisions of Section 11 of the 1997 Act and in accordance with the provisions of Section 27 of the 1997 Act, I now require the Respondent, if they have not already done so to put in place arrangements to ensure that the Complainant receives daily rest periods of at least 11 consecutive hours in each period of 24 hours when she is working for the Respondent.

In addition and also in accordance with the provisions of Section 27 of the 1997 Act I consider that the amount of compensation that is just and equitable in the instant case is the sum of €450.00c and I require the Respondent to pay her that amount within 6 weeks of the date of this decision.

In relation to the second of the complaints under the 1997 Act I again note that it is not in dispute that the Complainant did not receive rests and intervals (breaks) at work that comply with the provisions of Section 12 of the 1997 Act in the relevant period.   Accordingly I must find and declare that the complaint under Section 27 of the 1997 Act in relation to rests and intervals (breaks) at work in accordance with Section 12 of the 1997 Act is well founded and it is upheld.   However I am also taking into account that the Respondent has now put into place new rosters for the Complainant that will ensure that she receives breaks at work that complies with the provisions of Section 12 of the 1997 Act.

I have upheld the complaint in relation to rests and intervals (breaks) at work in accordance with the provisions of Section 12 of the 1997 Act and in accordance with the provisions of Section 27 of the 1997 Act, I now require the Respondent, if they have not already done so, to put in place arrangements to ensure that the Complainant receives breaks at work that comply with the provisions of Section 12 of the 1997 Act.

In addition and also in accordance with the provisions of Section 27 of the 1997 Act, I consider that the amount of compensation that is just and equitable in the instant case is the sum of €450.00c and I require the Respondent to pay the Complainant that amount within 6 weeks of the date of this decision.

The total amount awarded to the Complainant for breach of her rights under the Organisation of Working Time Act is €900.00c and I require the Respondent to pay her that amount within 6 weeks of the date of this decision.

Protection of Employees (Fixed-Term Work) Act 2003: CA-00006670-001:                                              . It is not in dispute that the Complainant never received a written statement of the objective reason determining the contract or the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration in accordance with the provisions of Section 8 of the Protection of Employees (Fixed-Term Work) Act 2003; nor is it in dispute that the Complainant never received a contract of indefinite duration/permanent contract.   Accordingly I must find and declare that the complaint under Section 14 of the 2003 Act in relation to written statements is well founded and it is upheld.   However I note that the Complainant has now been offered a permanent contract/contract of indefinite duration.

I have upheld the complaint under Section 14 of the Act in relation to Section 8 of the 2003 Act.   However I note that the Complainant has now being afforded a permanent contract of employment and accordingly the question of the provision of a written statement in accordance with Section 8 of the 2003 Act is ‘moot’ and no direction to comply with the provisions of Section 8 of the 2003 Act is necessary.

In addition and in accordance with the provisions of Section 14 of the 2003 Act I consider that the amount of compensation that is just and equitable in the instant case is the sum of €1,200.00c and I require the Respondent to pay her that amount within 6 weeks of the date of this decision.

Payment of Wages Act 1991: CA-00006368-004:                                                                                             . I have carefully considered the evidence and the submissions made and I have concluded as follows.  

I note that in the relevant period the Complainant had no fixed base other than her home and that she had no assigned fixed or habitual place of work.   I further note that in accordance with the ECJ Judgement in the case of Federación de Services Privados del sindicato Comisiones Oberas -v- Tyco Integrated Security SL & Anor Case C-266/14 that time spent travelling between the workers’ homes and the premises of the first and last customers is working time.   Accordingly I find and declare that the complaint is well founded and the Complainant is entitled to be paid for the time spent travelling to and from her home and the homes of the patients to whom she was assigned in the relevant period, i.e. the 6 month period from 10^th February 2016 to 9^th August 2016.   I note that this will not be an issue going forward as the Complainant has now been assigned a work base.

I find and decide that the period spent travelling to and from the homes of the patients assigned to the Complainant in the period from 10^th February 2016 to 9^th August 2016 was working time and is periods for which she is due wages properly payable to her in accordance with the provisions of the 1991 Act.   I now require the Respondent to pay the Complainant the wages due to her for that period at the rate of €13.52c per hour (or part thereof) less any statutory deductions within 6 weeks of the date of this decision.

Complainant (b) ADJ-00004669(b):    

Industrial Relations Act 1969: Complaint: CA-00006369-001:                                                                      . I have carefully considered the evidence and the submissions made and I have concluded as follows.

I understand that much of the claim raised by the Complainant have been resolved and/or conceded by the Respondent and thus much of the claim under the 1969 Act is conceded by the Respondent.

In is my understanding that the Complainant is now a recognised employee of the Respondent as sought and is being paid at the same rate as Home Helps with full recognition for service since he commenced employment in July 2010 and the Respondent has further committed to pay any shortfall in wages due to the Complainant based on the Home Help Pay Scales since he commenced employment in July 2010.   I further understand that a work base for the Complainant has been agreed.   However, should any of this not be the case, I now recommend as a full and final settlement of all matters in dispute under the Industrial Relations Act 1969, that this be now completed by the Respondent within 4 weeks of the date of this recommendation.

For the avoidance of doubt I wish to confirm that this recommendation is particular to the unique facts of this case and it cannot and will not be used or quoted by either party or any other party in any other case.    

Terms of Employment (Information) Act 1994:   CA-00006673-001:                                                           . It is not in dispute that the Complainant was not provided with a written statement of the particulars of his terms and conditions of employment in accordance with and that complied with the provisions of Section 3 of the Terms of Employment (Information) Act 1994.

Accordingly I must find that the complaint under Section 7 of the 1994 Act is well founded and it is upheld.   However I also note that the Respondent stated that they were in the process of providing the Complainant with such a statement.    

I find and declare that the complaint is well founded and it is upheld.   If the Respondent has not already done so I require that they now provide the Complainant with a written statement that fully complies with Section 3 of the 1994 Act and that confirms the Complainant’s start/ commencement date of employment as July 2010 and that this be completed within 4 weeks of the date of this decision.   In addition and as also provided for in Section 7 of the 1994 Act I consider that the amount of compensation that is just and equitable in the instant case is €500.00c and I require the Respondent to pay the Complainant that amount within 6 weeks of the date of this decision.

Organisation of Working Time Act 1997: CA-000006369-002 and CA-00006369-003:                           . It is not in dispute that the Complainant was not afforded daily rest periods in accordance with the provisions of Section 11 of the Organisation of Working Time Act 1997 in the relevant period.   Accordingly, I must find and declare that the complainant under Section 27 of the 1997 Act in relation to daily rest periods in accordance with the provisions of Section 11 of the Organisation of Working Time Act 1997 is well founded and it is upheld.   However I am also taking into account that the Respondent have now put in place new rosters for the Complainant that will ensure that he receives daily rest periods of at least 11 hours in each 24 hour period during which he is working for the Respondent.

I have upheld the complaint in relation to daily rest periods in accordance with the provisions of Section of the 1997 Act and in accordance with the provisions of Section 27 of the 1997 Act, I now require the Respondent, if they have not already done so, to put in place arrangements to ensure that the Complainant receives daily rest periods of at least 11 consecutive hours in each period of 24 hours when he is working for the Respondent.   In addition and also in accordance with the provisions of Section 27 of the 1997 Act I consider that the amount of compensation that is just and equitable in the instant case is €400.00c and I require the Respondent to pay him that amount within 6 weeks of the date of this decision.

In relation to the second of the complaints under the 1997 Act I again note that it is not in dispute that the Complainant did not receive rests and intervals (breaks) at work that comply with the provisions of Section 12 of the 1997 Act in the relevant period.   Accordingly, I must find and declare that the complaint under Section 27 of the 1997 Act in relation to rests and intervals (breaks) at work in accordance with Section 12 of the 1997 Act is well founded and it is upheld.   However I am also taking into account that the Respondent has now put into place new rosters for the Complainant that will ensue that he receives breaks at work that complies with the provisions of Section 12 of the 1997 Act.

I have upheld the complaint in relation to rests and intervals (breaks) at work in accordance with the requirements of Section 12 of the 1997 Act and in accordance with the provisions of Section 27 of the 1997 Act, I now require the Respondent, if they have not already done so, to put in place arrangements to ensure the Complainant receives breaks at work that comply with the provisions of Section 12 of the 1997 Act.

In addition and also in accordance with the provisions of Section 27 of the 1997 Act, I consider that the amount of compensation that is just and equitable in the instant case is the sum of €400.00c I require the Respondent to pay that amount to the Complainant within 6 weeks of the date of this decision.

The total amount awarded to the Complainant for breach of his rights under the Organisation of Working Time Act 1997 is €800.00c and I require the Respondent to pay him that amount within 6 weeks of the date of this decision.      

Protection of Employees (Fixed-Term Work Act) 2003: CA-00006673-001:                                               . It is not is dispute that the Complainant never received a written statement of the objective reasons determining the contract or the objective reasons justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration in accordance with the provisions of Section 8 of the Protection of Employees (Fixed-Term Work) Act 2003; nor is it in dispute that the Complainant never received a contract of indefinite duration/permanent contract.   Accordingly, I must find and declare that the complaint under Section 14 of the Act in relation to written statements is well founded and it is upheld.   However, I note that the Complainant has now been offered a permanent contract/contract of indefinite duration.

I have upheld the complaint under Section 14 of the 2003 Act in relation to Section 8 of the 2003 Act.   However I note that the Complainant has now been afforded a permanent contract of employment and accordingly the question of the provision of a written statement in accordance with Section 8 of the 2003 is ‘moot’ and no direction to comply with the provisions of Section 8 of the 2003 Act necessary.

In addition in accordance with the provisions of Section 14 of the 2003 Act I consider the amount of compensation that is just and equitable in the instant case is the sum of €1,100.00c and I require the Respondent to pay the Complainant that amount within 6 weeks of the date of this decision.

Payment of Wages Act 1991:   CA-00006369-004:                                                                                           . I have carefully considered the evidence and the submissions made and I have concluded as follows.

I note that in the relevant period the Complainant had no fixed base other than his home and that he had no assigned fixed or habitual place of work.   I further note that in accordance with the ECJ Judgement in the case of Federación de Services Privados del sindicato Comisiones Oberas -v- Tyco Integrated Security SL & Anor Case C-266/14 that time spent travelling between the workers’ homes and the premises of the first and last customers is working time.   Accordingly I find and declare that the complaint is well founded and the Complainant is entitled to be paid for the time spent travelling to and from his home and the homes of the patients to whom he was assigned in the relevant period, i.e. the 6 month period from 10^th February 2016 to 9^th August 2016.   I note that this will not be an ongoing issue as the Complainant has now been assigned a work base.

I find and decide that the period spent travelling to and from the homes of the patients assigned to the Complainant in the period from 10^th February 2016 to 9^th August 2016 was working time and is periods for which he is due wages properly payable to him in accordance with the provisions of the 1991 Act.

Accordingly I now require the Respondent to pay the Complainant the wages due to him for that period at the rate of €13.52c per hour (or part thereof) less any statutory deductions within 6 weeks of the date of this decision.                                                          

Dated:   10^th March 2017