ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00001132
Parties:
Complainant | Respondent | |
Anonymised Parties | A Healthcare Specialist | Specialist Healthcare Service Limited |
Representatives | Simon Donagh BL, instructed by Cahir O'Higgins & Company Solicitors | Peninsula Group Limited |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977 | CA-00004934-001 | 07/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997 | CA-00001554-001 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997 | CA-00001554-002 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00001554-020 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00001554-006 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00001554-007 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00001554-008 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00001554-009 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00001554-010 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00001554-011 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act 1991 | CA-00001554-012 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997 | CA-00001554-013 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997 | CA-00001554-014 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997 | CA-00001554-015 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997 | CA-00001554-016 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997 | CA-00001554-017 | 17/12/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Organisation of Working Time Act 1997 | CA-00001554-018 | 17/12/2015 |
Dates of Adjudication Hearing: 16th March 2017, 14th July 2017 and 23rd October 2017
Workplace Relations Commission Adjudication Officer: Aideen Collard
Procedure:
The Complainant initially referred the aforesaid complaints under Section 6 of the Payment of Wages Act 1991 (hereinafter also referred to as ‘the 1991 Act’) and Section 27 of the Organisation of Working Time Act 1997 (hereinafter also referred to as ‘the 1997 Act’) against the Respondent, to the Workplace Relations Commission (hereinafter ‘WRC’) on 17th December 2015. On the same date, she also referred a dispute under Section 13 of the Industrial Relations Act 1969 in relation to bullying and harassment which was closed when the Respondent submitted a valid objection to the WRC hearing this matter. The Complainant referred a further complaint under Section 8 of the Unfair Dismissals Acts 1977-2015 on 7th June 2016. Complaint Reference CA-00001554-018 was withdrawn at the hearing. In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts 1977-2015 and following referral to me by the Director General, I inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence. This is a complex case comprising of seventeen complaints, raising jurisdictional and other preliminary issues and entailing three sets of submissions and extensive documentation. The hearing was adjourned on a number of occasions to facilitate both Parties, including enabling the Respondent, an English-based Company to avail of legal / HR advice and obtain representation, and the Complainant to provide sufficient information in relation to her complaints. I heard this case over three days on 16th March 2017, 14th July 2017 and 23rd October 2017. The Complainant was represented by Mr Simon Donagh BL, instructed by Cahir O'Higgins & Company Solicitors, whilst the Respondent was represented by Peninsula. The HR Manager travelled over from England for each hearing. All oral evidence, written submissions, documentation and law presented by both Parties have been taken into consideration.
Background:
On 11th March 2015, the Complainant was employed as a Healthcare Specialist by the Respondent, an English registered and based limited Company, to provide a high-risk, specialised healthcare service to its clients in Ireland. She was based at home from where she made arrangements to attend at the clients’ homes to provide care. She received €29,932 gross during her employment for circa 221 hours of actual work. Arising from this employment, on 17th December 2015, she referred eight complaints that the Respondent had not paid her in respect of some of the clients contrary to the Payment of Wages Act 1991, along with eight complaints of breaches under the Organisation of Working Time Act 1997, including the non-payment of her holiday and public holiday pay. Whilst these matters were before the WRC, it is common-case that the Respondent terminated the Complainant’s employment, albeit that the date of dismissal is in dispute as to whether it was in fact 10th May 2016 or 4th July 2016. The Complainant added a complaint of Unfair Dismissal to her existing complaints on 7th June 2016.
The Complainant was employed under a ‘Zero Hours’ contract containing a clause making it subject to English law and the exclusive jurisdiction of the English Courts. In circumstances where no corresponding proceedings had been brought in England, the preliminary issue of whether the WRC had jurisdiction to hear these complaints and if so, the applicable law had to be determined first. Once these issues were ruled in favour of the Complainant for the reasons set out hereunder, the Respondent cooperated with meeting the substantive complaints, without prejudice to its entitlement to appeal these findings. Other preliminary issues relate to the date of dismissal and whether the WRC has jurisdiction to hear a number of these complaints which were referred prematurely. As the determination of these issues required hearing the totality of the relevant evidence, I deemed it appropriate to address them along with the substantive complaints as set out hereunder. Given that the date of dismissal was in issue, it was agreed that the Complainant would give her evidence first in relation to her complaint of Unfair Dismissal and the ancillary complaints were heard afterwards.
Preliminary Issue: Whether WRC has Jurisdiction & Applicable Law where Employment Contract subject to English Law / English Jurisdiction Clause
Summary of Respondent’s Case:
The Respondent’s Representative pointed to various features of the employment relationship to contend that the proper jurisdiction is the English Courts and applicable law is English law. The Respondent is an English registered and based limited Company. The Complainant signed a ‘Zero Hours’ contract dated 11th March 2015, containing the terms of her employment and including the following clause: “This Contract shall be governed by and construed in accordance with English law and the parties hereto submit to the exclusive jurisdiction of the English Courts.” The contract and accompanying handbook also make reference to various Acts of the Parliament of the United Kingdom. The Respondent is registered with and governed by the Health Care Regulator in the United Kingdom, requiring adherence to its standards including training requirements (contended to be of a higher standard than that in Ireland) and being a condition of its indemnity insurance. The Complainant was required to be registered with the relevant Specialist Regulatory Council in Ireland (expressly provided for in her contract) and the equivalent Regulatory Council in the United Kingdom, and to complete mandatory training to maintain registration. She was also required to hold a UK driver’s licence (whether this arose from the pro forma contract also used for UK employees or there was other good reason was not elaborated upon but nothing material turns on this). The Complainant’s management functions and administrative support was based in England for the duration of her employment.
Reference was made to the relevant provisions of Brussels 1 Regulation (recast) (EU) No. 1215/2012 and Rome 1 Regulation (EC) No. 593/2008 (as set out hereunder). Reliance was placed upon Article 8(4) of the Rome 1 Regulation and the ECJ case of Schlecker -v- Boedeker (C64/12) to submit that the choice of law clause must be a significant factor in determining to which country the contract is more closely connected, and the country in which the employee habitually carries out their employment is far from conclusive. Given the choice of law and jurisdiction clause in favour of English law and the English Courts respectively, it was submitted that the WRC should decline jurisdiction to hear these complaints.
Summary of Complainant’s Case:
Counsel for the Complainant submitted that as against the undisputed English choice of law / jurisdiction clause contained in the Parties’ contract, there are several features of the contract and its performance which suggest that the Irish jurisdiction and law is more appropriate for dealing with these complaints. Specifically, the contract was more closely connected with this jurisdiction in that the Complainant was recruited in Ireland; she entered into her contract in Ireland; her place of work as per the contract was in Ireland stating: “You will work from home…” with her Irish home address in brackets; she carried out her work in Ireland; she was paid in euro and paid her taxes in Ireland. Reference was made to Chapter 25 - ‘International Employment’ by Bryan Dunne, Employment Law (2017, 2nd Edition, Murphy & Regan) for a comprehensive review of the applicable law. Reference was also made to the relevant provisions of Brussels 1 Regulation (recast) (EU) No. 1215/2012 and Rome 1 Regulation (EC) No. 593/2008 (as set out hereunder) to contend that notwithstanding this clause, the WRC has jurisdiction to hear these complaints and the Complainant is entitled to the benefit of the various statutory protections provided by Irish law. A number of cases were cited in this respect and in particular, Walsh -v- Matrix Shipping Ltd DEC-E2016-126, where the Equality Tribunal determined that it had jurisdiction notwithstanding a choice of law clause in favour of Cyprus. In all the circumstances, it was submitted that the WRC should retain jurisdiction to hear these complaints under Irish law.
Preliminary Finding: Whether WRC has Jurisdiction & if so, Applicable Law
I referred the Parties to the European Commission’s ‘Practice Guide on the Jurisdiction and Applicable Law in International Disputes Between the Employee and the Employer’ for guidance on whether the WRC had jurisdiction to hear these complaints and the applicable law given the existence of the English choice of law / jurisdiction clause. The Brussels 1 Regulation (recast) (EU) No. 1215/2012 (replacing Brussels 1 Regulation 44/2001/EC and effective from 10th January 2015) and Rome 1 Regulation (EC) No. 593/2008 (revising the 1980 Rome Convention) contain special provisions to determine which courts have jurisdiction over disputes relating to individual contracts of employment and the applicable law, respectively. This Practice Guide sets out the rationale for such provisions as follows: “These special provisions derogate from general principles on jurisdiction and applicable law with the aim of protecting employees as the weaker party to the contract. Generally, those special provisions allow the protected party to be sued in the courts of his/her own domicile, but gives that party a choice of jurisdiction when he/she is the claimant.” and “In disputes between the employee and the employer, the main connecting factor between the Brussels 1 Regulation (recast) and the Rome 1 Regulation linking the dispute with a particular court and a particular applicable law is the ‘place where the employee habitually carries out his work.’ This means that the employee has access to the courts in the Member State where he/she habitually carries out his/her work and that that Member State’s law will generally apply to solve the dispute, even when work is carried out in more than one country. The Regulations aim to prevent proceedings from being brought in multiple jurisdictions and being determined under multiple applicable laws.” It is therefore clear that the Regulations require separate consideration of whether the WRC has jurisdiction to hear these complaints and if so, the applicable law, as follows:
Whether the WRC has Jurisdiction to hear Complaints?
Brussels 1 Regulation (recast) (EU) No. 1215/2012 provides the rules for determining jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. Notably, Regulation 18 of the Preamble provides: “In relation to insurance, consumer and employment contracts, the weaker party should be protected by rules of jurisdiction more favourable to his interests than the general rules.” Section 5 provides for jurisdiction in respect of individual contracts of employment as follows:
“SECTION 5
Jurisdiction over individual contracts of employment
Article 20
- In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Article 6, point 5 of Article 7 and, in the case of proceedings brought against an employer, point 1 of Article 8.
- Where an employee enters into an individual contract of employment with an employer who is not domiciled in a Member State but has a branch, agency or other establishment in one of the Member States, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that Member State.
Article 21
- An employer domiciled in a Member State may be sued:
(a) in the courts of the Member State in which he is domiciled; or
(b) in another Member State:
(i) in the courts for the place where or from where the employee habitually carries out his work or in the courts for the last place where he did so; or
(ii) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.
- An employer not domiciled in a Member State may be sued in a court of a Member State in accordance with point (b) of paragraph 1.
Article 22
- An employer may bring proceedings only in the courts of the Member State in which the employee is domiciled.
- The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.
Article 23
The provisions of this Section may be departed from only by an agreement:
(1) which is entered into after the dispute has arisen; or
(2) which allows the employee to bring proceedings in courts other than those indicated in this Section.”
The Practice Guide helpfully sets out the requisite analysis to be applied by a court seized with a claim against an employer over an individual contract of employment which I have applied to the instant factual matrix. Firstly, in relation to jurisdiction, I must ask: “Does the dispute relate to an individual contract of employment?” As there is no dispute that the Complainant was an individual employed under a contract of employment, the answer to this is in the affirmative. The next question posed is: “If so, do I have jurisdiction pursuant to Section 5 of Regulation 1215/2012/EU?” In circumstances where there is no dispute that the Complainant exclusively worked in Ireland and indeed was required to do so under her contract, I am satisfied that she habitually carried out her work in Ireland and therefore could fall under Article 21(1)(b)(i) aforesaid which provides that an employer domiciled in a Member State may be sued in another Member State in the courts for the place where or from where the employee habitually carries out his work or in the courts for the last place where he did so. Having also answered that question in the affirmative, I must move onto the next question being: “Is there a choice of court agreement fulfilling the conditions of Article 23?” Whilst there is a choice of court agreement in favour of the English Courts, it does not fulfil the conditions in Article 23 as set out above as (1) it was clearly entered into before this dispute and (2), it does not allow the Complainant to bring proceedings in courts other than those indicated in Section 5 (which also include the courts of the Member State where the employer is domiciled i.e. England under Article 21(1)(a)). As this question is answered in the negative, the Guide stipulates: “Go to Article 21 and check whether the court can establish that the defendant (employer) is being sued at the place of: his/her domicile; at the place where the employee habitually carries out his/her work; if no such place, at the place where the business which engaged the employee is situated.” As there is no issue that the Respondent is being sued at the place where the Complainant habitually carries out her work, being Ireland, she is therefore entitled to sue in Ireland.
I have also considered the various authorities relied upon on behalf of the Complainant and note that they turn on their own particular facts. I referred the Parties to the ECJ Case of Madamdia (C-154/11), where the employee was a dual Algerian/German national living in Germany, employed by the Ministry of Foreign Affairs of the People’s Democratic Republic of Algeria as a driver at the Algerian Embassy in Berlin. His employment contract contained a choice of jurisdiction/law clause in favour of the Algerian courts but he had brought proceedings against his employer in Germany. The ECJ found that the effect of Article 21 of the Brussels 1 Regulation was to restrict the conclusion of an agreement on jurisdiction by the parties to a contract of employment, such that if it was concluded before a dispute has arisen, the employee is permitted to bring proceedings before courts other than those subject to the exclusive agreement. Likewise, I am satisfied that notwithstanding the English choice of law / jurisdiction clause concluded before this dispute arose, the Complainant is entitled to sue in Ireland before the WRC in relation to all of her complaints listed under Complaint References CA-00001554 and CA-00004934.
Applicable Law?
Whilst Article 3 of Rome 1 Regulation (EC) No. 593/2008 provides parties to a contract with freedom of choice as to the governing law, this is limited in favour of the employee by Article 8 which provides the rules for determining the applicable law to an individual employment contract dispute as follows:
“Article 8
Individual Employment Contracts
- An individual employment contract shall be governed by the law chosen by the parties in accordance with Article 3. Such a choice of law may not, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law that, in the absence of choice, would have been applicable pursuant to paragraphs 2, 3 and 4 of this Article.
- To the extent that the law applicable to the individual employment contract has not been chosen by the parties, the contract shall be governed by the law of the country in which or, failing that, from which the employee habitually carries out his work in performance of the contract. The country where the work is habitually carried out shall not be deemed to have changed if he is temporarily employed in another country.
- Where the law applicable cannot be determined pursuant to paragraph 2, the contract shall be governed by the law of the country where the place of business through which the employee was engaged is situated.
- Where it appears from the circumstances as a whole that the contract is more closely connected with a country other than that indicated in paragraphs 2 or 3, the law of that other country shall apply.”
Essentially Article 8 of Rome 1 Regulation affords an employee the protection of the provisions of the law of the country where they habitually carry out their work and which they would have been subject to in the absence of a choice of law clause, in so far as it cannot be derogated from by agreement i.e. contracted out of. This would include various statutory employment rights. In this respect, the Practice Guide requires me to ask: “Which law do I need to apply to the individual employment contract? Does the contract contain a choice of law clause?” In the instant case, there is no dispute that there is a choice of law clause in favour of English law. If “YES: the court applies Article 8(1) of Regulation 593/2008 (chosen law but subject to the application of the non-derogable rules of law that is objectively applicable); go to ‘NO’ in order to establish which law is objectively applicable. NO: the court must determine the law objectively; go first to Article 8(2): can the court establish the habitual place of work?”. If “YES: the court applies the law of the country in which or from which the employee habitually carries out his/her work; or in exceptional cases, where the contract is more closely connected with another country, the court applies the law of that other country (Article 8(4)).”. Applying this guidance to the instant factual matrix, I am satisfied that as the Complainant was habitually carrying out her work in Ireland, she is entitled to have all of her complaints listed under Complaint References CA-00001554 and CA-00004934 determined in accordance with the Irish law which she would have been subject to in the absence of the choice of law clause, in so far as it cannot be derogated from, including the Unfair Dismissals Acts 1977-2015, Payment of Wages Act 1991 and Organisation of Working Time Act 1997.
In so finding, I have also considered the Respondent’s argument to the effect that notwithstanding same, the Complainant’s contract should be construed as being more closely connected with England, as permitted by Article 8(4) (also known as ‘the escape clause’) and confirmed in a preliminary ruling in Schlecker -v- Boedeker (C64/12). In this case, the ECJ held that priority must be given to the nexus between the contract and the place of habitual work and a mere preponderance of factors pointing to another country does not displace the application of that law. Nevertheless, even where the employee habitually works for a lengthy period without interruption, the court may exceptionally disregard the law of the country where the work is habitually carried out if it appears from the circumstances as a whole that that the contract is more closely connected with another country. Amongst the significant factors suggestive of a close connection with a country identified in that case by the ECJ, is the country where the employee pays taxes on his/her income and is covered by a social security scheme, pension, sickness insurance and invalidity schemes. Additionally, the national court must take into account all of the circumstances of the case. Having considered all of the circumstances of the instant case as advanced by both Parties, including the fact that the Complainant paid her taxes in Ireland, I find that there is no basis for contending that her contract was more closely connected to England.
Complaint under the Unfair Dismissals Acts 1977-2015 – CA-00004934-001
Summary of Complainant’s Case:
Complainant’s Evidence
The Complainant supplemented written submissions made on her behalf with direct evidence. She confirmed her training and expertise within the specialist healthcare service in question. She outlined a difficult relationship history with the Respondent’s Director, in circumstances where they had previously worked together in another health services guise in the UK from 2004. She contended that the Respondent’s Director who was her Manager at the material time had dismissed her in 2008 for another matter in retaliation for the Complainant making a complaint of institutionalised bullying and harassment and being subjected to same. Both Parties have made complaints about the other to the requisite Regulatory Councils at some stage. The Complainant outlined other personal difficulties she had experienced during that period. She moved to Ireland in 2009 and in February 2015, attended a recruitment meeting for the provision of the specialist healthcare services in question in Ireland. When she saw her former Manager at the meeting, she left but her former Manager ran after her and persuaded her to work for the Respondent. In her direct evidence, the Complainant said that she “felt intimidated and backed into a corner” in relation to working for her again as Director of the Respondent. She confirmed that she had signed the ‘Zero Hours’ contract dated 11th March 2015 and commenced employment for the Respondent. Under pressure from the Director, she gave up her job with a Medical Service to become a full-time staff member. She outlined the nature of the work, which she described as “high risk”, and the manner in which tailor-made client care packages were agreed. She confirmed that she was legally and contractually required to register with the Specialist Regulatory Council in Ireland in order to perform this work. Payment was made incrementally over the course of the care package and omitted travel. However, cracks in the working relationship were evident within months and the Complainant outlined the following sequence of events leading to her dismissal:
- From May/June 2015 onwards, the Respondent allowed some of the Complainant’s clients to cancel their contracts. As a consequence, she felt that she was not being paid properly and raised issues with the payment structure and arrangements including the non-payment for travel with the Director.
- By email dated 12th November 2015, the Director wrote to the Complainant stating that she should travel to England for mandatory training required before the end of the year for insurance purposes in accordance with its risk management strategy. The Complainant accepted that the training had to be done but considered this to be an unreasonable proposal given that she was based in Ireland and required to be on hand for her clients. She expressed this in an exchange of emails, also raising the issue of the cost of travel to England and requesting that the training take place in Ireland, stating: “I’m sick to my stomach with worry as I know essentially I can’t work after the end of January if it’s not done.” However, the Director did not offer to cover the cost of her travel. In a further email exchange, the Complainant suggested her plan to complete the requisite training in Ireland which appeared to be acceptable to the Director who indicated that she did not care so long as it was done.
- In late November 2015, the Complainant had to respond to a complaint made by one of her clients in relation to her care which she felt was unfounded, and said that the client was difficult and made the complaint to get her money back. She had never previously had a complaint about her clinical ability.
- As a consequence of having a reduced caseload and consequently reduced income, in another email exchange with the Director from early December 2015 onwards, the Complainant also indicated that she was exploring other employment options. Without consulting her, the Director replied indicating that the majority of her clients were to be reallocated to other Healthcare Specialists in Ireland. She was given two options, either to leave with immediate effect or stay until the end of January 2016. She said that the Director’s emails were designed to come across as reasonable when they were backing her into a corner. By email dated 14th December 2015, the Complainant made it clear that she had no intention of resigning and would like to continue with the care of her clients as arranged. She said that if undertaking her training in Ireland was an issue, she would attend under protest. She referred to the complaint about her as “being very stressful”. She took issue with the manner in which “incidents, concerns, a complaint, and potential claim” were characterised in the Director’s email stating that they were “grossly exaggerated”. She threatened to bring various complaints in relation to her wages and working time entitlements to the WRC, along with “an action under the grievance procedures” and stated: “I believe this dismissal is an unfair dismissal brought as a result of your complaints and breaches of Irish employment law. I will bring a Claim for Unfair Dismissal if I am terminated for pursuing my other rights as stated.” She referred the aforesaid complaints under the Payment of Wages Act 1991 and Organisation of Working Time Act 1997 and dispute under the Industrial Relations Acts to the WRC on 17th December 2015, notified by the WRC to the Respondent on 13th January 2016.
- The Complainant wrote to the HR Manager on 22nd December 2015 stating that she would like to submit a grievance pursuant to the Grievance Procedures, raising a number of complaints including (1) the negligent investigation of a complaint against her by one of the clients, (2) the reallocation of clients to other personnel, (3) failure to provide her with adequate work, (4) unreasonably requiring her to undergo training in the UK and (5) bullying and ongoing harassment. In a further exchange of emails, the HR Manager contended that these were statements rather than grievances and sought more detail / evidence. The Complainant replied indicating that her complaints were “short clear, and self-explanatory” and she required them to be dealt with in an informal manner with a face-to-face meeting. Contrary to what was requested, the HR Manager replied that she was opening a formal grievance and arranged a meeting in a hotel in Dublin on 21st January 2016. The Complainant said that at that stage, she felt overwhelmed and was suffering from stress and anxiety caused by the Respondent’s actions, reaching a point whereby she was advised by her doctor not to proceed and was signed off on sick-leave owing to workplace stress as per email to the HR Manager of 11th January 2016. The HR Manager acknowledged this and stated that the grievance procedure would be suspended. By email dated 14th January 2016, the Complainant wrote twice to the HR Manager indicating that her handling of the matter had added to her “stress and harassment” and she would like to address the points raised informally and had repeatedly asked for a face-to-face meeting. She said it was her right to address matters informally when she was well enough to do so. In the latter email she added: “The remainder of the grievances set out by myself must now be investigated and dealt with formally.” In direct evidence, the Complainant said she had no faith that her grievances would be dealt with fairly.
- In February 2016, the Complainant received an email from the HR Manager requesting the return of her kit. When she questioned this request in circumstances where she would be returning to work, she was told that she would be re-issued with a kit upon her return to work. Despite requesting that a courier collect the kit as given her ill-health she did not want any of the Respondent’s staff calling to her house and being assured that this would be done, the kit was collected by a member of staff.
- In the meantime, the Complainant submitted further sick certificates which were acknowledged by the HR Manager. She received counselling and began to feel better, so tried to return to work. On 28th April 2016, she emailed the HR Manager with a fitness to return to work certificate and asked for a restart date. The HR Manager acknowledged receipt, thanked her and said that she was glad that she was feeling better but indicated nothing about her return. When the Complainant attempted to log into her email account, she found that it had been deleted and/or was no longer accessible. She said that as of 10th May 2016, she “assumed” she had been dismissed but had not queried her employment status. At this stage, she had been off work for almost six months and was cognisant of the six-month limitation period for referring complaints to the WRC. Based upon the above actions, she concluded that she had been dismissed and referred a complaint to the WRC on 7th June 2016. In her complaint form she stated: “This is quite a complex case. I have a complaint lodged with the Workplace Relations Commission regarding employment rights breaches and bullying and harassment. I view my unfair dismissal as a direct result of pursuing those rights. My ex-employer is currently trying to organise a "kangaroo court" in the UK. I can provide evidence of this against me- I regard myself as having been dismissed since early May as I have been denied email access to my work account since then. I was absent on sick leave from my job (they had removed all of my clients at the beginning of December 2015 for no reason other than bullying and harassment) and I have received nil pay since then… ”
- By letter dated 17th May 2016, the Complainant received a letter from the Respondent’s Director stating that: “Given your escalation to external bodies (WRC & UK Regulatory Authority), we now consider your grievance closed, as no investigation internally would be likely to differ from the external bodies you have already involved.” and a panel would be put in place to hear clinical concerns raised at the Head Office in England on 30th June 2016. By letter dated 3rd June 2016, the Complainant received the evidence file to be considered along with the company handbook and confirmation that the matter was being dealt with under the ‘Disciplinary and Capability’ section. Both letters requested her attendance with a representative offering €150 towards expenses with the option of making written submissions. She did not attend the hearing or make written submissions. She felt that the ‘clinical concerns’ were “disgraceful” and made her out to be an inexperienced, dangerous practitioner and were unfairly raised retrospectively. She also felt that the €150 offered would not meet her expenses of travelling to England and would not be paid. By letter dated 4th July 2016, the HR Manager wrote to her confirming that her employment should be terminated due to “concerns relating to your clinical knowledge/skill, which result in a risk to patient safety”. There was no appeal available or offered. She was of the view that this hearing had been set up to dismiss her for referring complaints to the WRC.
In terms of mitigation, the Complainant confirmed that she had worked in another healthcare role for a period following the termination of her employment but was unable to continue owing to PTSD, as a result of her employment with the Respondent. She has not worked since 6th October 2016 and is at a financial loss as a consequence. She is currently in receipt of Carer’s Allowance which allows her to work 15 hours per week. The Complainant is also currently studying for an alternative profession.
The Respondent’s Representative put its position to the Complainant regarding the reasonableness of its actions towards the Complainant given all the circumstances. It was put to her that the contract terms of the care packages agreed allowed clients to cancel in certain circumstances which had arisen in the cases giving rise to her complaints; her clients were reallocated in December 2015 as she had stated that she was unwell; the Respondent had received text messages / emails where she had used inappropriate language towards clients; she had stated in text messages /emails that she was looking for another job and had threatened to bring a complaint of Unfair Dismissal at that time; she had refused to undergo mandatory training required for registration and insurance purposes and accepted that she had not completed her mandatory training in Ireland in the meantime; she had interpersonal difficulties with the other staff in Ireland and having raised grievances, had refused to engage in the Respondent’s grievance process despite the HR Manager’s efforts to deal with same and meet her in Dublin. It was further put to her that given the correspondence of 17th May & 3rd June 2016 pertaining to the Disciplinary and Capability process, she could not have reasonably regarded herself as being dismissed as at the date of referral, being 7th June 2016. She said she did not participate in the process as it was “pre-ordained” and she could not afford legal advice to respond by way of written submissions. Other aspects of the Complainant’s credibility and conduct were also questioned.
Submissions on Date of Dismissal
In written submissions, it was contended that the Complainant had been dismissed by the Respondent on 10th May 2016 based upon the unfair reallocation of clients, the collection of her kit and denial of access to her email as outlined above and the six-month time limit was looming. Counsel confirmed that this was not being pursued as a complaint of constructive dismissal and the Complainant reserved her position to argue in the alternative, that she was unfairly dismissed on 4th July 2016. Either way, Counsel submitted that her dismissal was unfair based upon the sequence of events outlined above.
In response to the Respondent’s contention that the alternative complaint was referred prematurely, Counsel relied upon the High Court Judgement in Brady -v- Employment Appeals Tribunal (2015) ELR 1 as guidance in relation to interpreting the time limits provided by Section 8(2) of the Unfair Dismissals Acts as follows: “A claim for redress under this Act shall be initiated by giving a notice in writing …to the Director General- (a) within the period of 6 months beginning on the date of the relevant dismissal….” It was submitted that in Brady, Mr Justice Barrett held that a claim to the Employment Appeals Tribunal (EAT) was not premature where it was lodged during the notice period where termination was imminent and that the same dicta should be applied to this case. In his Judgment, he made the following three important observations: (1) prescribed time limits are normally intended to “thwart the tardy, not punish the prompt”, (2) there is a longstanding equitable principle that “Equity aids the vigilant, not the indolent” and (3) just because a person (EAT) was first given notice before the commencement of the statutory period, it does not mean that it did not have notice during the period and “Moreover, the court considers that in reaching this conclusion no violence is done to the language of the Act. Section 8(2) requires that notice be given within the period of six months from the date of dismissal. It appears that in the circumstances of this case, giving notice to the Tribunal on one date such that it has notice on another date, is within the scope of the legislation.” Likewise, in this case, it was submitted that it would be wholly unfair dismiss the Complainant’s complaint of Unfair Dismissal for being premature, if the WRC finds that the date of dismissal was in fact 4th July 2016.
Submissions on Complaint of Unfair Dismissal
Regardless of the effective date, various aspects of the Respondent’s treatment of the Complainant leading to her dismissal were submitted to be unfair contrary to Sections 6(1) and 6(6) of the Unfair Dismissals Acts, which deem a dismissal to be unfair unless there are substantial grounds justifying the decision. The closing of the Complainant’s grievances without investigation and the raising of ‘clinical concerns’ was contended to be unfair and in breach of her contract of employment. Given that the Complainant was based in Ireland, the English venue for the Disciplinary and Capability hearing was held to be most unfair and in breach of fair procedures. Criticism was also made of the letter of dismissal as not giving clear reasons for the Complainant’s dismissal. Reliance was also placed upon Section 6(2)(c) of the Acts which deems a dismissal to be unfair if it results wholly or mainly from “…civil proceedings whether actual, threatened or proposed against the employer…,”. In this respect, it was submitted that she was dismissed in retaliation for referring the initial complaints to the WRC. The Complainant sought compensation pursuant to Section 7(1)(c) of the Unfair Dismissals Acts.
Summary of Respondent’s Case:
Save than where they differ, I do not propose to repeat the sequence of events as outlined above as there is very little in the way of factual dispute and it is the reasonableness of the Parties’ respective actions in the circumstances that is in issue, with each side expressing diametrically opposing views.
The HR Manager gave direct evidence supplementing the Respondent’s extensive written submissions. She outlined the background to setting up the specialist healthcare service provided and its structure. She confirmed the use of ‘Zero Hours’ contracts to bring its specialists within the remit of ‘employees’ for insurance purposes and accepted that their use in the UK can also be controversial. She had been aware of the Complainant’s history with the Director (who opted not to attend this hearing owing to their difficult history) and initially there was no concerns about her employment. However, issues arose early on with a number of client care concerns and complaints arising which she outlined. It also became evident that there was bad feeling between the Complainant and the other Irish staff. Her professionalism and communication style as demonstrated by aggressive emails/texts to staff and/or about clients also caused concern. The HR Manager was further concerned about her decision not to attend mandatory training in the UK particularly as it had come to light that her training had not been updated since 2008 despite indicating otherwise at interview. By early December 2015, a catalogue of issues that had arisen, the Complainant had indicated that she was feeling unwell but refused supports, she stated that she was seeking work elsewhere and threatened to resign, she had raised a list of grievances (but would not provide any details) and communication had broken down with the Co-ordinator in Ireland. Consequently, the HR Manager was anxious to meet her in Dublin as arranged for 21st January 2016. However, the Complainant had declined to meet and went on sick leave from early January 2016. She confirmed that the kit was collected from the Complainant’s house as another Specialist needed it but that she would have been provided with a new kit upon her return to work. There had been no reassurances that a courier would collect the kit. There were also difficulties obtaining the return of client notes. In relation to the Complainant being unable to access her email, it was contended that she had sent work emails to a personal email address in breach of Company confidentiality as demonstrated by a screenshot and the password had been changed to protect same.
In relation to pursuing the Disciplinary and Capability process leading to the termination of the Complainant’s employment, the HR Manager said that although not familiar with the Adjudication process, she had exercised caution and had sought information from the WRC as to how best to proceed given that the Complainant wanted to return to work as per emails furnished. She denied that the disciplinary process was instigated as a reaction to the initial complaints. She said that the hearing had been conducted in accordance with the procedures under the ‘Disciplinary & Capability’ section in its handbook and fair procedures. The Complainant had been furnished with all the documentary evidence in advance and was also given an opportunity to address the issues in writing but had not done so. She had been requested to attend with a representative and €150 towards her expenses was offered but she declined to attend. She also confirmed that the panel was impartial in that she as the chair had no history of issues with the Complainant, the Respondent’s Director had not been on the panel (having distanced herself from the process owing to her history with the Complainant) and an independent expert in the area had attended. She went through the process adopted in relation to the hearing including delaying the start when the Complainant was not in attendance, going through the clinical concerns raised, dealing with them on their merits in accordance with the Code of Practice and leading to upholding the concerns and decision that there was no alternative but to dismiss the Complainant in circumstances where she had not engaged and there was no alternative such as a Performance Improvement Plan (PIP). She confirmed that the process did not provide for an appeal. The documentary evidence and notes from the hearing were furnished. Under questioning from Counsel for the Complainant, it was put to her that the letter of dismissal failed to give adequate reasons for dismissal which she denied. She accepted that she had not obtained legal/HR advice on the use of its ‘Zero Hour’ contracts in Ireland and was unaware of the applicable employment rights.
Another member of the Panel attended to give brief evidence confirming details of her background, extensive clinical and union experience and impartiality, along with her role on the panel and conduct of the Disciplinary and Capability hearing. This was not put in issue on behalf of the Complainant.
Submissions on Date of Dismissal
On behalf of the Respondent, it was submitted that the Complainant’s complaint of Unfair Dismissal should be dismissed as being premature in circumstances where it was pre-lodged on 7th June 2016, and her employment was terminated on 4th July 2016 and not on 10th May 2016 as she had contended. Also in circumstances where she had received correspondence dated 27th May and 3rd June 2016 requesting her participation in the Respondent’s Disciplinary and Capability process and had refused to engage, lodging this complaint instead, it was contended that she should not now be permitted to argue an alternative unfair dismissal on 4th July 2016. It was further contended that she had clearly considered herself to be an employee at the time of referral, and given this correspondence could not have been under any illusion that she was not still employed by the Respondent. The Representative sought to distinguish Brady -v- Employment Appeals Tribunal (2015) ELR 1, as unlike the position in that case, the Complainant had not been given any notice of termination at the time of referral of her complaint to the WRC. Reliance was also placed upon various EAT decisions pre-dating Brady.
Submissions on Complaint of Unfair Dismissal if Dismissal was 10th May 2016
It was submitted that if 10th May 2016 was accepted as the date of dismissal, it had to be construed as a constructive dismissal with the burden of proof resting with the Complainant to show that she was entitled to consider herself dismissed in accordance with the definition contained in Section 1(b) of the Unfair Dismissals Acts. It was submitted that three events complained of as at 10th May 2016 could not give rise to grounds for constructive dismissal based upon the uncontested exchange of correspondence. Firstly, the allegation that the Respondent’s Director had reallocated most of her client base without her knowledge and had given her the option of leaving immediately or at the end of January 2016 was denied. Arising from the exchange of emails about the requirement for the Complainant to undergo mandatory training, she had stated: “I’ll be looking for another job asap” and had stated similar via text message as early as November 2015. She had also emailed the Director on 4th December 2015 complaining of being “dizzy”, “not sleeping”, feeling “very sick” and having “a few little pains in my chest” but advised that despite same, she was unable to “afford to hand over”, to which she was advised “you can’t afford to make a mistake”. Having received correspondence that the Complainant was seeking alternative work, coupled with feeling unwell, the Director had asked whether she had wanted to hand over her clients immediately or in January 2016. The Complainant responded by asking if she could take some time to think it over and requested a reference having been shortlisted for interview for an alternative position in London. It was in these circumstances that some of her clients had been reallocated, clearly with her knowledge. The Respondent had a duty of care towards the clients to ensure the standard and continuity of care. Furthermore, the Complainant had failed to cooperate with the grievance process in respect of this issue. Secondly, it was submitted that as demonstrated by the email exchange between the Parties, she had misconstrued the circumstances around the collection of the kit in February 2016. Thirdly, it was denied that her work email account had been deleted but rather that her email had been locked with a new password as she had sent confidential emails to her personal account in breach of confidentiality. It was submitted that the Complainant could not have considered herself dismissed in circumstances where the Respondent had not acted unreasonably or disproportionately and she had failed to discharge the heavy onus of proof. Reliance was also placed upon a number of EAT decisions in favour of the employer in this respect.
Submissions on Complaint of Unfair Dismissal if dismissal was 4th July 2016
It was submitted that should the WRC entertain the Complainant’s complaint of unfair dismissal in respect of 4th July 2016, that she was dismissed in accordance with the requisite principles of natural justice and fair procedures on the grounds of capability/competence as provided for by Section 6(4)(a) of Unfair Dismissals Acts as follows: “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,”. In particular, it was submitted that the Respondent was invited to the Disciplinary and Capability hearing on 30th June 2016 arising from genuinely held capability/competence concerns that needed addressing; she was properly notified in writing by letters dated 17th May & 2nd June 2016; she was provided with the requisite documentary evidence and handbook setting out the procedures; she was advised of the right to be accompanied and have €150 expenses reimbursed and was also afforded the opportunity to submit a written response. The Respondent conducted the hearing in accordance with the procedures set out in the handbook which provides for a single stage summative panel to consider such matters, also stating that an employee must make all reasonable efforts to attend and failure to attend can result in a decision being made in the employee’s absence. However, the Complainant failed and/or refused to engage in the process despite being aware of the seriousness of the allegations. Consequently, the panel reviewed the evidence before it and in the absence of any engagement or response from the Complainant decided to terminate her employment on 4th July 2016.
Reference was made to Looney & Co. Ltd -v- Looney UD843/1984 where the EAT said that it was their responsibility to: “consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decision are to be judged.” Reference was also made to the Judgement of Lord Denning in Taylor -v- Alidair (1978) IRLR 82 where he held: “Whenever a man is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable and incompetent. It is not necessary for the employer to prove that he is in fact incapable or incompetent.” It was submitted that the Respondent in the instant case had acted reasonably and fairly throughout the process given the serious nature of the clinical concerns and the Complainant’s lack of engagement. Therefore, this complaint of Unfair Dismissal is not well-founded and should fail. In terms of mitigation should the Complainant be successful, the Respondent questioned her availability for work from October 2016 onwards given that she had been medically unfit to continue working in her subsequent healthcare role and was on Carer’s Allowance.
Findings & Conclusions:
In keeping with my finding that the Complainant is entitled to have her complaints determined in accordance with the non-derogable provisions of Irish law, I deem it appropriate to apply the provisions of the Unfair Dismissals Acts 1977-2015 as interpreted by relevant case-law and will deal with the alternative complaints of Unfair Dismissal on 10th May 2016 and 4th July 2016 in turn:
Complaint of Unfair Dismissal if Dismissal was 10th May 2016
The Complainant has sought to argue that she was in fact dismissed as of 10th May 2016 but a constructive-type dismissal complaint has not been pursued on her behalf. In this respect, I am satisfied that the Complainant referred her complaint of Unfair Dismissal to the WRC on 7th June 2016 in response to the correspondence of 27th May and 2nd June 2016 inviting her to the Disciplinary and Capability hearing on 27th June 2016. This is evident from the reference in her complaint form to the Respondent “trying to organise a "kangaroo court"”. I am satisfied this correspondence could not be construed as giving notice of dismissal and the Complainant could not have been under any illusion that she was not still employed as at the date of referral on 7th June 2016, even if she was unhappy with the process. In this respect, I also note that as far back as December 2015, she had threatened a complaint of Unfair Dismissal and an email sent in late May 2016 to the HR Manager enquired about her average hourly rate of pay. I am therefore satisfied that the date of her dismissal was in fact 4th July 2016.
I further note that as of 10th May 2016, the Complainant’s contention that she considered herself dismissed on this date was based upon three complaints, being (1) the reallocation of her client base in December 2015, (2) the collection of her kit in February 2016 and (3) denial of access her email upon being certified as fit to return to work in April 2016. I am therefore satisfied that the events complained of could only constitute a complaint of constructive dismissal within the meaning of Section 1(b) of the Act outlined above. Had this complaint been pursued, I am satisfied that the Complainant could not have reasonably considered herself dismissed in circumstances where she either did not avail of or exhaust the Company grievance procedures in relation to these complaints. In this respect, I find the Respondent’s handling of her grievances to be reasonable. Given that she had furnished a list of issues, it was reasonable for the HR Manager to seek more detail for the purposes of investigation. I also note the Complainant’s email requiring a face-to-face meeting and efforts made by the HR Manager to meet with her in Dublin in January 2016 to discuss these matters before they were put on hold when she went on sick leave. As the HR Manager could not have been aware of the referral of these matters to the WRC at that time, I do not consider the latter discontinuation of the process unreasonable.
Complaint of Unfair Dismissal if dismissal was 4th July 2016
As an alternative, the Complainant has sought to rely upon the High Court Judgement in Brady -v- Employment Appeals Tribunal (2015) ELR 1 to contend that the termination of her employment by the Respondent on 4th July 2016 constituted an unfair dismissal contrary to the Unfair Dismissals Acts, in circumstances where this complaint was referred beforehand on 7th June 2016. I have considered the submissions made on behalf of both Parties in this respect. Noting the obiter dictum in Brady and more favourable circumstances in that case, I will nonetheless accede to considering whether her dismissal was unfair on the alternative date of 4th July 2016 with a view to giving the Parties finality on this issue.
As elucidated in caselaw, the overriding test in relation to dismissal of an employee on the grounds of capability and competence is the reasonableness of the employer’s actions in the particular circumstances at the time. Having considered and weighed up the aforesaid factual matrix, I am satisfied that the Respondent acted reasonably in relation to the Complainant’s dismissal on 4th July 2016 and has discharged the burden of proving that it was not unfair for the following reasons:
(1) Given its high-risk nature, once the Complainant sought to return to work, it is difficult to see what alternative the Respondent had other than to hold a hearing in accordance with its Disciplinary and Capability procedures, in circumstances where she had not completed her mandatory training and other clinical concerns had arisen. Whilst not endorsing the Respondent’s findings made in her absence, I am satisfied that the clinical concerns were genuinely held and were not manufactured for the purposes of setting up a so-called ‘kangaroo-court’ and dismissing her. In circumstances where the Complainant had not engaged with the process and instead had submitted this complaint to the WRC, I find the Respondent’s view that an alternative such as a PIP was not a viable option to be reasonable.
(2) I have considered the procedures adopted and find them to be substantially in accordance with the provisions of the Unfair Dismissals Acts as interpreted by relevant caselaw. Specifically, I do not consider that it was unreasonable to hold the hearing in England given that it was the Respondent’s management and administrative base and that €150 had been offered towards expenses. I am also satisfied that the Respondent complied with its procedures which met the level of fair procedures, natural and constitutional justice that could reasonably be expected, including giving the Complainant notice, inviting her to bring a representative, sending her the underlying documentation and affording her the opportunity to respond in writing. Taken in tandem with the other correspondence, the letter of dismissal is quite clear as to the reasons for dismissal. Whilst the availability of an appeal may have been better practice, I am satisfied that the absence of an appeal did not materially affect the outcome in the instant case in circumstances where the Complainant clearly had no intention of engaging.
(3) Finally, I have considered whether the Complainant could have been dismissed in retaliation for referring her initial complaints to the WRC, contrary to Section 6(2)(c) of the Unfair Dismissal Acts. In this respect, I accept the veracity of the HR Manager’s evidence that she had exercised caution by seeking information from the WRC as evidenced in emails before embarking upon the Disciplinary and Capability process. As indicated above, I am of the view that the Respondent had little alternative but to follow its procedures in circumstances where the Complainant had sought to return to work.
Decision:
Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to the complaint in accordance with the relevant provisions. Based upon the aforesaid reasoning, I find this complaint of Unfair Dismissal regardless of the date to be unfounded and accordingly, dismiss same.
Complaints under Section 6 of the Payment of Wages Act 1991:
Summary of Complainant’s Case:
It is common-case that package prices were agreed with the Respondent’s clients at the outset of their contracts with the Company depending upon the services being availed of, and were paid incrementally throughout the period of care. The pre-agreed portion of the sums collected on behalf of each Healthcare Specialist was paid over in the form of a salary less statutory deductions such as PAYE, PRSI & USC on a monthly basis, as per the Complainant’s payslips furnished. The Complainant referred the following eight complaints totalling a claim for €14,120 to the WRC under Section 6 of the Payment of Wages Act 1991, all of which related to non-payment in respect of the following clients where she had provided at least the initial consultation and contracts had been signed, but where the Respondent had either allowed them to cancel their packages or had reallocated them to other Healthcare Specialists:
CA-00001554-020 – Client 1: Completed 6 visits plus, and an initial consultation, received €600 - claims €1650 outstanding on package price - due on 31/08/2015 & complaint referred to WRC on 17/12/2015
CA-00001554-006 – Client 2: Completed 4 visits, received €230, €400 expenses not recoverable -claims €1520 outstanding on package price - due on 31/08/2015 & complaint referred to WRC on 17/12/2015
CA-00001554-007 – Client 3: Completed 6 visits and 2 prior visits - claims package price of €1750 is outstanding - due on 31/10/2015 & complaint referred to WRC on 17/12/2015
CA-00001554-008 – Client 4: Completed 6 visits and 1 prior visit, received €600 - claims €1150 outstanding on package price - due on 31/01/2016 & complaint referred to WRC on 17/12/2015
CA-00001554-009 – Client 5: Completed 1 visit and received no payment- claims package price of €1750 is outstanding - due on 28/02/2016 & complaint referred to WRC on 17/12/2015
CA-00001554-010 – Client 6: Completed 1 visit and received no payment - claims package price of €2100 is outstanding - due on 28/02/2016 & complaint referred to WRC on 17/12/2015
CA-00001554-011 – Client 7: Completed at least 1 visit, disputes receipt of €200 booking fee - claims package price of €2100 outstanding - due on 28/02/2016 & complaint referred to WRC on 17/12/2015
CA-00001554-012 – Client 8: Completed at least 1 visit, disputes receipt of €200 booking fee - claims package price of €2100 outstanding - due on 28/04/2016 & complaint referred to WRC on 17/12/2015
When the Complainant was asked why she had submitted the latter five of these complaints on 17/12/2015, when the monies did not become due and owing until later dates in 2016 as set out above, the Complainant contended that because her clients had been reallocated as at the date of referral, it was apparent that she would not be paid. She did not dispute the existence of the terms in her contract which she had signed in relation to remuneration as set out by the Respondent hereunder.
Summary of Respondent’s Case:
The Respondent’s Representative pointed out differences in the amounts sought between the Complainant’s complaint forms and submissions suggest a lack of certainty as to the specific nature of her complaints. It was further submitted that the latter four complaints were pre-lodged to the WRC, in that the work for the clients in question had not been due to commence until after the date of referral and should be disregarded on this basis alone. Substantially, it was submitted that the Complainant had signed her contract of employment on 16th March 2015 and was therefore well aware of the payment terms. Reference was made to relevant clauses in the contract. Clause 1.4 of the contract stated: “You are engaged under a zero hours contract of employment which means that we do not guarantee to provide you with any work and we pay you only for work/episodes of care actually carried out.” Schedule 2 headed ‘Remuneration’ contained the terms of payment including: “For the avoidance of doubt, we will not be responsible for payment of any remuneration to you under this agreement or otherwise, if: (a) No (or only part the) fees have been paid for by the Client directly to us; or (b) The Client has terminated its agreement for services with the Company; or (c) (words to the effect that the client cannot continue for medical reasons) and you will therefore no longer be required to provide such services; or (d) You are unable to provide attend any client visits or fulfil any of the Company’s obligations to a client during an episode (for reasons including but not limited to illness, holiday or other absence).” and “In the event that clauses 3(a)-(d) apply, then the fees due to you will reduce by the figure incurred by the Company to provide cover.” The Schedule included a further clause reducing payment when another Specialist takes over any instance of care. Further information regarding the calculation of salary and care packages were contained in the handbook including that: “Your salary is all inclusive of expenses so travel, kit, postage, etc. is all included.” (save for pre-agreed travel expenses where the client lived in excess of 45 miles away). There was also a provision that nothing was charged or paid in respect of initial consultations. In relation to the specific complaints, and as confirmed by the HR Manager with a tracker comparing monies paid with the Complainant’s records, she had been paid for all appointments completed with the aforesaid clients in accordance with her contractual terms. Payment remittance records furnished also confirmed the sums paid.
Specifically, the Respondent produced records confirming the following position in relation to payment:
CA-00001554-020 – Client 1: Complainant was paid €600 in respect of work completed in payslips for April, May & June 2015 - Client discontinued contract for medical reasons in accordance with its terms
CA-00001554-006 – Client 2: Complainant was paid €900 in respect of work completed in payslips for June & July 2015 - Client discontinued contract for medical reasons in accordance with its terms
CA-00001554-007 – Client 3: Complainant was paid €739 in payslips for August, September & October 2015 - Client discontinued contract for medical reasons in accordance with its terms
CA-00001554-008 – Client 4: Complainant was paid €600 in payslips for September, October & November 2015 - Client was reallocated when Complainant reported being unwell in December 2015
CA-00001554-009 – Client 5: Records confirmed that Complainant had not provided any clinical care which commenced after she went on sick-leave and was assigned to another Healthcare Specialist
CA-00001554-010 – Client 6: Records confirmed that Complainant had not provided any clinical care which commenced after she went on sick-leave and was assigned to another Healthcare Specialist
CA-00001554-011 – Client 7: Complainant received €200 but did not provide any clinical care which commenced after she went on sick-leave and was assigned to another Healthcare Specialist
CA-00001554-012 – Client 8: Complainant received €200 but did not provide any clinical care which commenced after she went on sick-leave and was assigned to another Healthcare Specialist
Emails were provided to confirm that clients who the Complainant contended had been allowed to cancel their contracts had in fact discontinued on medical grounds in accordance with their contracts with the Respondent. It was further submitted that as the Complainant had not carried out any further work beyond that already discharged, she was not entitled to the remainder of the monies sought on the client packages as per the terms of her contract. This was not substantially put in dispute. Nor was the Respondent’s tracker of payments made and/or remittance records substantially put in issue.
Findings & Conclusions:
The Complainant is effectively seeking payment of monies in respect of (1) work already conducted in relation to the eight clients listed above (noting that nominal sums are in issue) and (2) the remainder of the package price in respect of each client regardless of whether the work was in fact carried out, in circumstances where they had discontinued their contracts and/or were reallocated (representing the bulk of the claim). I must also consider the related issue of the premature referral of the five latter complaints and whether they are admissible. In accordance with my findings aforesaid on the applicable law, I deem it appropriate to examine these complaints in accordance with the non-derogable protective provisions provided by the Payment of Wages Act 1991 as relied upon. Section 1 defines ‘wages’ as including: “…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,…” I am therefore satisfied that the monies claimed fall within the definition of ‘wages’ for the purposes of referring a complaint to the WRC under Section 6 of the Act. In relation to the shortfalls alleged, Section 5(1) of the Payment of Wages Act 1991 provides: “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (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.” It is clear that that these provisions prohibit the deduction of monies from wages (as defined and notably excluding expenses) unless permitted by contract or by consent. Section 6 of the Act provides for the referral of complaints arising from a contravention of Section 5 to the WRC. In relation to the timelines for the referral of complaints, Section 41(6) of the Workplace Relations Act 2015 provides: “(6) Subject to subsection (8) (providing for an extension of time up until 12 months if reasonable cause), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”
Firstly, in relation to the monies sought for the work already conducted in relation to the eight clients listed aforesaid, I prefer the Respondent’s evidence as it was confirmed in detailed records which were not substantially challenged by the Complainant. I am therefore satisfied that she was in fact paid for all the work that she had actually carried out. Turning to the claims for payment of the remainder of the client packages where they had discontinued their contracts and/or had been reallocated, I note the undisputed contractual terms in this respect as set out above, which unequivocally provided for non-payment in relation to all of the circumstances outlined by the Complainant. Therefore, I find that she was not contractually entitled to the monies sought. Lest there be any question about the reasonableness of the Respondent’s actions in reallocating some of the Complainant’s clients in December 2015, I find that this was reasonable given the nature of the work and fact that she had indicated that she was unwell and was seeking other work. This falls squarely within the wording: “You are unable to provide attend any client visits or fulfil any of the Company’s obligations to a client during an episode (for reasons including but not limited to illness, holiday or other absence).” It is noted that shortly thereafter from early January 2016, the Complainant went on sick leave until late April 2016 and consequently, was unable to carry out the work required in respect of those clients. This also disposes of the issue of whether the latter five complaints have been referred prematurely in so far as the monies claimed could not have become due and owing under the contract until the Complainant had in fact carried out the work in question. As it is not in dispute that she did not carry out that work (regardless of the reasons), I am satisfied that the monies did not become due and owing at any point.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to these complaints in accordance with Schedule 6 & Section 6(1) of the Payment of Wages Act 1991 as follows.
CA-00001554-020– Client 1: For the aforesaid reasons, I dismiss this complaint as being unfounded.
CA-00001554-006 – Client 2: For the aforesaid reasons, I dismiss this complaint as being unfounded.
CA-00001554-007 – Client 3: For the aforesaid reasons, I dismiss this complaint as being unfounded.
CA-00001554-008– Client 4: For the aforesaid reasons, I dismiss this complaint as being unfounded.
CA-00001554-009– Client 5: For the aforesaid reasons, I dismiss this complaint as being unfounded.
CA-00001554-010 – Client 6: For the aforesaid reasons, I dismiss this complaint as being unfounded.
CA-00001554-011 – Client 7: For the aforesaid reasons, I dismiss this complaint as being unfounded.
CA-00001554-012 – Client 8: For the aforesaid reasons, I dismiss this complaint as being unfounded.
Complaints under Section 27 of the Organisation of Working Time Act 1997:
CA-00001554-001 – No Holiday Pay / Annual Leave Entitlements contrary to Section 19 OWT Act 1997
Summary of Complainant’s Case:
The Complainant was not afforded any annual leave during her employment and/or did not receive pay in respect of same upon the termination of her employment, contrary to Section 19 of the Organisation of Working Time Act 1997. She felt that she could not take any holidays as it would have been unpaid. Whilst her contract made no reference to holidays, the current Company handbook provided: “Zero hours (Healthcare Specialist): 12.07% of your gross pay is your holiday accrual for that pay period, this ensures that you are able to take leave between your caseloads/assignments as you wish. We would ask you to give good notice of any holiday leave you wish to take and to consider carefully taking clients on if their care covers a time you may be absent from work. It is good practice to request holiday with a minimum of 2 weeks notice.” The Complainant had been under the apprehension that the 12.07% was already factored into her salary until the HR Manager confirmed at the hearing that 12.07% of gross pay would be paid in addition to the monies which had become due and owing under the client packages, upon taking annual leave. She confirmed that this had not been paid to the Complainant to date.
Summary of Respondent’s Case:
The Respondent submitted that the Complainant had ample time to take her Annual Leave between assignments as apparent from her diary entries furnished, but she had never requested same.
Findings & Conclusions:
I also deem it appropriate to examine this complaint in accordance with the relevant non-derogable provisions of the Organisation of Working Time Act 1997 as relied upon. In relation to annual leave, Section 19(1) provides:“… 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): Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.” Section 19(3) of the Act provides that an employee who has worked for at least eight months within a leave year is entitled to an unbroken period of two weeks’ as part of their annual leave. Section 20 provides for the times when annual leave and payment for same become due and specifically Section 20(c) provides that leave should be granted within that annual leave year but can be extended for up to 15 months after the end of that leave year if the employee is due to certified illness, unable to take all or part of his/her annual leave during that year. Finally, Section 23 provides that payment in lieu of outstanding annual leave becomes payable upon the cessation of employment.
As confirmed in case-law, payment in lieu of annual leave as part of wages is not permitted owing to the protective nature of the Organisation of Working Time Act 1997, as founded upon the Working Time Directive. Although cognisant that the annual leave in the instant case may not have necessarily become due in circumstances where the Complainant had not requested leave before she referred this complaint to the WRC on 17th December 2015 and thereafter went on sick leave, I find that the Respondent breached her annual leave entitlements the Organisation of Working Time Act 1997. In particular, I note that her contract did not make any express provision for annual leave. I also find the wording of the aforesaid clause in the handbook to be so nebulous that the Complainant was entitled to assume that the 12.07% gross was already included within the calculation of her wages and felt unable to request same. This is borne out by the fact that no payment in respect of annual leave had been made to her as at the dates of the hearing. Neither does the clause provide for an unbroken two-week period of leave and requires that annual leave is taken between caseloads / assignments.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 and Section 27(3) of the Organisation of Working Time Act 1997 providing: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of a relevant provision shall do one or more of the following, namely: (a) declare that the complaint was or, as the case may be, was not well founded, (b) require the employer to comply with the relevant provision, (c) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.” For the aforesaid reasons, I find this complaint to be well-founded and cognisant that the Complainant has not been paid for any annual leave to date (which given her gross pay of €29,932 for the period of her employment, 12.07% would have equated to circa €3600 under her contract), require the Respondent to pay the Complainant €4100 in compensation as being just and equitable in all the circumstances.
CA-00001554-002 – No Sunday Premium Entitlements contrary to Section 14 OWT Act 1997
Summary of Complainant’s Case:
The Complainant contends that she was required to work an average of three out of four Sundays in a month. It was submitted on her behalf that whilst the Respondent disputes the frequency of her Sunday working, it accepts that she was required to work on Sundays and in fact did so. It is clear that her contract did not make any provision for compensation for Sunday working and she did not receive any compensation for same, contrary to Section 14 of the Organisation of Working Time Act 1997.
Summary of Respondent’s Case:
The Respondent disputes that the Complainant was required to work an average of three out of four Sundays in a month and submits that it was primarily a matter of choice given that she was free to arrange her own appointments. Based upon her own diary notes, the only Sundays she conducted any work within the requisite reference period were 19th July, 2nd August, 9th August, 18th October & 8th November 2015. Save for her work conducted on 8th November 2015 for a four-hour period, it was submitted that she could have scheduled all of the other appointments for a day other than a Sunday. Furthermore, the Complainant was paid in line with the package price agreed with the clients and staff are not obliged or encouraged to schedule appointments on a Sunday but at times convenient to them.
Findings & Conclusions:
I deem it appropriate to examine this complaint in accordance with the relevant non-derogable provisions of the Organisation of Working Time Act 1997 as relied upon. In relation to Sunday work, Section 14(1) provides that: “An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely- (a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or (b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or (c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or (d) by a combination of two or more of the means referred to in the preceding paragraphs.” I accept the Respondent’s submission to the effect that the Complainant’s work was autonomous, she only had to work by necessity on Sunday 8th November 2015 and had worked on the other Sundays by choice. However, I am also satisfied that the nature of the work requires Sunday work on occasion by necessity. The Complainant’s contract does not make any provision in relation to Sunday working. Whilst cognisant of conflicting caselaw on the requirements for provision within an employment contract for Sunday premium, I am satisfied that no consideration was given to this in relation to the Complainant’s contract based upon the Respondent’s self-admitted unawareness of its obligations in relation to same. Albeit on the minor end of the scale, I find that the Respondent breached Section 14 of the 1997 Act.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 & Section 27(3) of the Organisation of Working Time Act 1997 as cited above. For the aforesaid reasons, I find this complaint to be well-founded and noting that the Complainant was required to work on just one Sunday for a short period out of necessity, require the Respondent to pay her €150 in compensation as being just and equitable in all the circumstances.
CA-00001554-013 – No Public Holiday Entitlements contrary to Section 21 OWT 1997
Summary of Complainant’s Case:
The Complainant contends that she worked on two public holidays (3rd August & 26th October 2015), within the requisite reference period without any additional pay or time off in lieu of in accordance with the options provided in Section 21(1) of the Organisation of Working Time Act 1997. It is submitted that the Respondent is incorrect in its contention that because the Complainant had days off subsequent to the various public holidays that this is compliance for the purposes of the Act. Section 21(1) requires an employer to choose the form of compensation to which an employee is entitled. There is no evidence that this was done with no reference to same in the contract of employment. Consequently, the Complainant is entitled to compensation under Section 21 of the 1997 Act.
Summary of Respondent’s Case:
The Respondent accepts that the Complainant worked on the two public holidays referred to above. Whilst it was accepted that she had worked by necessity on an earlier public holiday being 1st June 2015, it was contended that she had unnecessarily scheduled appointments on the other two public holidays, being 3rd August and 26th October 2015. It was further submitted that she had taken time off later during the week following the public holidays in question to suit her own schedule, was responsible for arranging her own appointments and was paid accordingly. Therefore, the Respondent was not in breach of its obligations under Section 21 of the Organisation of Working Time Act 1997.
Findings & Conclusions:
I deem it appropriate to examine this complaint in accordance with the relevant non-derogable provisions of the Organisation of Working Time Act 1997 as relied upon. In relation to public holiday entitlements, Section 21(1) provides: “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: Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.” The Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. 475/1997) provides for the calculation of pay for public holidays including for atypical workers such as the Complainant. Again, I accept the Respondent’s submission that the Complainant’s work was autonomous in nature and she was not required to work on the two public holidays that fall within the requisite reference period. However, I am also satisfied that the nature of the work would require working on a public holiday on occasion by necessity. In this respect, I note that the Complainant’s contract does not make any provision in relation to public holiday entitlements or the arrangements for same. Albeit on the minor end of the scale, I find that the Respondent was in breach of its obligations under Section 21 of the 1997 Act.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with Schedule 6 & Section 27(3) of the Organisation of Working Time Act 1997 as cited above. For the aforesaid reasons, I find this complaint to be well-founded and noting that the Complainant worked by choice on the two public holidays within the reference period, require the Respondent to pay her €150 in compensation as being just and equitable in all the circumstances.
Complaints specific to Working Time:
As the following complaints relate to similar issues and considerations, they are addressed together:
Summary of Complainant’s Case:
CA-00001554-014 – No Daily Rest Periods contrary to Section 11 OWT 1997 - The Complainant’s contract or working arrangements made no provision for her entitlement to daily rest periods, being 11 consecutive hours in a 24-hour period under Section 11 of the Organisation of Working Time Act 1997.
CA-00001554-015 – No Breaks contrary to Section 12 OWT 1997 - The Complainant’s contract or working arrangements made no provision for her entitlement to breaks, being a 15 minute break if a period of 4 hours 30 minutes is worked, or a 30 minute break if a period of 6 hours is worked contrary to Section 12 of the Organisation of Working Time Act 1997. Four examples of such breaches within the requisite reference period were cited and not disputed, namely a nine hour period of work on 14th August 2015, a five hour period on 27th August 2015, a five hour period on 25th September 2015 and a five and a half hour period on 2nd November 2015. It was further submitted that these did not take into account travel time and time spent ‘on call’. The Respondent’s contention that she got her time back later is refuted in circumstances where there were no formal arrangements to enable same, with reliance upon the Labour Court decision in Doyle & Gilmartin -v- Midland Tribune (2004) ELR 255 and the UK Court of Appeal Judgement in Gallagher -v- Alpha Catering Services Limited (2005) IR LR 102.
CA-00001554-016 – No Weekly Rest Periods contrary to Section 13 OWT 1997 - The Complainant’s contract or working arrangements made no provision for her entitlement to a weekly rest period of 24 hours within any 7 day period under Section 13 of the Organisation of Working Time Act 1997. (Examples cited referred to dates in June and July 2015 outside of the requisite reference period.)
CA-00001554-017 – Working Excessive Weekly Hours contrary to Section 15 OWT 1997 - The Complainant contended that because she was always required to be ‘on call’, she was obliged to work in excess of 48 hours per week contrary to Section 15 of the Organisation of Working Time Act 1997. Reliance in this respect was placed upon the Labour Court decision in Feeney -v- Baquiran (2004) ELR 304 which held that time spent working in a domestic home was ‘working time’ for so long as she was available for work. Likewise, the ECJ held in Federación de Servicios Privados del sindicato Comisiones Obreras -v- Tyco Integrated Security SL (Case C-266/14), that where a worker does not have a fixed place of work, time spent travelling between their home and the first and last customer of the day constitutes ‘working time’. Hence the Complainant’s on call and travel time should be included.
CA-00001554-018 – Excessive Night-working contrary to Section 16 OWT 1997 - withdrawn at hearing
Summary of Respondent’s Case:
CA-00001554-014 – No Daily Rest Periods contrary to Section 11 OWT 1997 - The Respondent submitted that the Complainant failed to identify any instances of not receiving her daily rest periods.
CA-00001554-015 – No Breaks contrary to Section 12 OWT 1997 - The Respondent submitted that in relation to the aforesaid examples of breaches of this Section provided within the requisite reference period, the Complainant either did not provide accurate evidence supporting same and/or that there was another Healthcare Specialist attending with her who could accommodate her break entitlements.
CA-00001554-016 – No Weekly Rest Periods contrary to Section 13 OWT 1997 - The Respondent submitted that the Complainant failed to identify any instances of not receiving her weekly rest periods. Furthermore, she was not obliged to work 7 days in a row and scheduled her own appointments.
CA-00001554-017 – Working Excessive Weekly Hours contrary to Section 15 OWT 1997 -The Respondent submitted that the Complainant failed to identify any dates she spent ‘on call’ that required her to work in excess of 48 hours in any given week. In any event, she was at home and not at a place of work so this could not be considered as working time as found in Dellas & Others -v- Premier Minister & Another Case C-14/04 where the CCJ stated: “… it is settled law that on-call duty performed by a worker where he is required to be physically present on the employer’s premises must be regarded in its entirety as working time… regardless of the work actually done.” Furthermore, there was always a second Healthcare Specialist available to provide assistance when required and if the Complainant herself was the second Specialist, she was at home to be called out and not at a place of work. Furthermore, the Complainant was paid for travel for appointments in excess of 40km each way.
It was further submitted that the Respondent had complied with best practice and made great efforts to ensure that the Complainant was in receipt of her proper entitlements. In relation to the complaints under Sections 11, 12 and 13 of the 1997 Act, the Respondent contended that the nature of the Complainant’s work fell within the Code of Practice on Compensatory Rest & Related Matters. It was contended that she had agreed to the irregular hours by virtue of signing the contract. The handbook provided: “…you are in control of your own working diary and can manage your time accordingly,”. Therefore, she aware at all material times that she should limit her working time accordingly. Finally, it was submitted that the Complainant was very well compensated by her salary and if the Respondent was found in breach of the Act, it was technical in nature and any award should be limited accordingly.
Findings & Conclusions:
As with the aforesaid complaints, I deem it appropriate to examine this complaint in accordance with the relevant non-derogable provisions of the Organisation of Working Time Act 1997 as relied upon. Whilst I have concerns at the ‘Zero Hours’ nature of the contract and potential for employment rights breaches, this is not a case whereby the Complainant was on low pay and/or liable to fall under the national minimum wage. Notably and whilst many of the other protections have been invoked, a complaint has not been pursued under Section 18 of the Organisation of Working Time Act 1997, which makes provision for zero hour working practices. An undisputed statement provided to the WRC in accordance with Section 23 of the National Minimum Wage Act 2000, confirmed that between 1st April 2015 and 31st December 2015, the Complainant had earned approximately €121 per hour for actual hours worked during the course of her employment which totalled circa 221 hours. Even if this is inaccurate, it is not too far off the reality of the situation. The undisputed position was also that the Complainant was based at home from where she made arrangements to attend at the clients’ homes to provide care. Owing to the nature of the work, there would undoubtedly have been periods of time whereby she would also have to be available by telephone at short notice. However, I note from her own diary records and evidence that this occurred on only a few occasions. I further note that her actual episodes of work were relatively short, ranging from a few hours up to nine hours. Likewise, her employment with the Respondent was short-lived. Few concrete examples of actual breaches of Sections 11, 12, 13 & 15 of the 1997 Act within the requisite reference period were provided, with reliance primarily being placed upon the ‘on-call’ nature of her work and travel time between clients. Applying the relevant caselaw cited by both Parties to the nature of her work, I am not persuaded that the Complainant’s ‘on-call’ time could be considered as ‘working time’ under the Act. I further note that she was compensated for excessive travel time on occasion, and given the infrequency of her work episodes, this was not excessive or likely to lead to breaches of the 1997 Act save for untaken breaks.
However, I also note that the Respondent did not obtain any requisite legal / HR advice despite requiring the Complainant to work in Ireland and whilst very efficient in many respects, the HR Manager was unfamiliar with the Complainant’s statutory entitlements under Irish law. Furthermore, the Respondent had no system of retaining working time records as required by Section 25 of the 1997 Act, required to demonstrate compliance as per the legal test in Jakonis Antanas -v- Nolan Transport (2011) 22 ELR 311. Whilst cognisant of the autonomous nature of the Complainant’s employment, I do not accept that the mere availability of a second Healthcare Specialist or reliance upon the Code of Practice on Compensatory Rest & Related Matters - S.I. 44/1998 (clearly not envisaged by the contract & handbook which reference English statutory provisions) satisfies the Respondent’s obligations under the 1997 Act. I further note the absence of any provisions in the Complainant’s contract for ensuring compliance, such as arrangements for other Healthcare Specialists to provide cover. I therefore find the Respondent in breach of all of the aforesaid provisions of the Organisation of Working Time Act 1997, albeit of a technical nature in circumstances where little adverse effect has been demonstrated.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to these complaints in accordance with Schedule 6 and Section 27(3) of the Organisation of Working Time Act 1997 as cited above, and based upon the aforesaid reasoning, find as follows:
CA-00001554-014 – For the aforesaid reasons, I find this complaint to be well-founded and noting the technical nature of the breach, require the Respondent to pay the Complainant €150 compensation.
CA-00001554-015 – For the aforesaid reasons, I find this complaint to be well-founded and noting the technical nature of the breach, require the Respondent to pay the Complainant €150 compensation.
CA-00001554-016 –For the aforesaid reasons, I find this complaint to be well-founded and noting the technical nature of the breach, require the Respondent to pay the Complainant €150 compensation.
CA-00001554-017 –For the aforesaid reasons, I find this complaint to be well-founded and noting the technical nature of the breach, require the Respondent to pay the Complainant €150 compensation.
For the avoidance of doubt, the total required to be paid to the Complainant is €5000 in compensation.
Dated: 13/03/2018
Workplace Relations Commission Adjudication Officer: Aideen Collard
Key Words: English Choice of Jurisdiction / Law Clause -Brussels 1 Regulation (recast) (EU) No. 1215/2012 - Rome 1 Regulation (EC) No. 593/2008 - Section 8 of Unfair Dismissals Acts 1977-2015 - Section 6 of Payment of Wages Act 1991 - Section 27 of Organisation of Working Time Act 1997