Complainant

Respondent

Anonymised Parties

A healthcare worker

An agency supplying healthcare staff

Representatives

Ciara Galvin, SIPTU

Lisa Conroy, Peninsula Group Limited

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-00019249-001

17/05/2018

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

CA-00019249-002

17/05/2018

The respondent is an agency providing healthcare workers to organisations engaged in health and social services throughout Ireland. Their employees are placed in client organisations and they are entitled to the same rates of pay and allowances as directly-employed staff.   As a result, pay and allowances can vary for the employees of this agency, depending on the client to whom they are assigned.

The complainant commenced work with the respondent on August 1st 2016. Her complaint is that from that time, until November 2017, she was paid €3.86 per hour in addition to her hourly rate of €15.43 when she worked from 8.00pm until 11.30pm. She refers to this rate as a “twilight rate” or a “waking hours” rate.

Since November 2017, she has been assigned all the time to one specific client organisation, and she has not received the additional €3.86 for the hours that she has worked the “twilight” shift. She claims that she is owed €513.38 for the hours that she worked up to the date that she submitted this complaint on May 17th 2018. For the complainant, Ms Galvin said that she had been attempting to resolve this matter since December 2017, but without success.

The position of the respondent is that employees who are assigned work in HSE units are eligible for the top up payment and it does not apply to assignments with other clients.   The complainant has been working in a unit that is an independent charitable organisation since November 2017.   For the respondent, the Employee Relations Specialist said that they had attempted to explain this to the complainant when she telephoned their head office, but the explanation wasn’t clear enough and therefore, was not properly received.

While the complainant has been working exclusively for a specific non-HSE client since November 2017, she worked for this client before that date and she claimed that she was paid the €3.86 per hour on top of her normal hourly rate. Having examined this matter now in more detail, it appears that, prior to November 2017, when the complainant worked for this client, she was paid for working nights, which is the same rate as the twilight shift.  

At the hearing, the representatives for the respondent said that there are hours available in HSE units. Although the complainant is very well regarded in the unit where she works at present, she is free to take up hours in another unit where the HSE rates are paid.   The complainant said that she likes the unit she works in and has no desire to move.

Having listened to the complainant and the respondent setting out their position at the hearing, it seems to me that this problem results from a lack of clarity in communications from the respondent organisation. The complainant is a foreign national and is not as familiar with workplace issues as an Irish person might be. Also, the fact that she works off-site away from the respondent’s head office means that there is little opportunity for a face-to-face discussion. She is a member of SIPTU, but the respondents said that they do not negotiate with unions. This has created a great deal of frustration for the complainant which is regrettable. I have to conclude however, that the complainant has been paid the correct pay for all the hours she has worked for the respondent, apart from the rate which applies to sleeping over, which will be considered in the next section under the heading of complaint CA-00019249-002.

For the reasons set out above, I have decided that this complaint is not upheld.

“Sleeping over” on a client site requires the complainant to be in attendance in the relevant unit during night-time hours, but she is not required to be at work unless she is called by the staff on duty. The rate of pay for sleeping over is the current hourly minimum wage. Since January 1st 2017, the minimum wage is €9.25 per hour.   On January 1st 2018, it was increased to €9.55 per hour. However, the complainant has been paid €9.15 per hour for 448 hours when she was sleeping over at work in 2017 and 2018. This has resulted in a loss of €155.20 for the hours worked since this complaint was submitted on May 17th 2018.

At the hearing, Ms Conroy, for the respondent, acknowledged that there was an error in the rate of pay that applied to sleepover hours and the respondent agreed that this would be remedied and the complainant would be reimbursed as soon as possible.

The respondent acknowledged that this complaint has merit and will be resolved. It is regrettable that an issue as straightforward as the correct rate of pay corresponding to the minimum wage has not been applied to this employee’s sleepover hours for over 18 months, and it is also regrettable that the issue was not resolved before the complainant had to resort to making a complaint to the WRC.

It was established at the hearing that this complaint has merit. In accordance with the redress provisions of section 6(2) of the Payment of Wages Act 1991, I have decided that, in addition to correcting the rate of pay with effect from January 1st 2017 and paying the complainant €155.20 in arrears of wages, the respondent should pay the complainant an additional €100 in compensation for the illegal deduction.

Minimum wage, sleepover rate of pay