Complainant

Respondent

Anonymised Parties

A relief Childcare Assistant

A Community Playgroup

Representatives

Complainant

Ciaran Elders, BL,Patsy Gallagher Gallagher & Brennan

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00014770-001

03/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00014770-002

03/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00014770-003

03/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014770-004

03/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00014770-005

03/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00014770-006

03/10/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00014770-007

03/10/2017

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

CA-00018116-001

06/03/2018

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

CA-00018116-002

06/03/2018

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

CA-00018116-003

06/03/2018

The complainant worked as a childcare assistant on a relief panel. She was not given terms and conditions of employment. The panel was terminated when the respondent employed additional employees.

The complainant started employment with the respondent on 2nd October 2014 as a Childcare Assistant. Respondent correspondence dated the 2nd October 2014 states that she was on a relief panel and that this panel would exist for approximately two years from the signing of contract. By letter dated 8th September 2017 the respondent terminated her employment. The respondent advertised for a new relief panel in March 2017 in spite of the complainant having been told in August 2016 that she was on a relief panel for which she had not been informed of any expiry date. The complainant was not offered any hours after December 2016.   She was dismissed after asserting her statutory rights to be given a copy of her terms and conditions.

No annual leave entitlement was paid to the complainant until she requested it in writing from the respondent in 2016. By that time she was into her third year of employment and her entitlement to annual leave was never mentioned by the respondent. When she received the 8% payment there were inaccuracies and omissions regarding allocating the correct PRSI to the correct years.

The complainant’s hours of work fluctuated from month to month. On occasions she was rostered to work a set number of hours only to be told while at work she was not needed for the full hours for which she was booked and was subsequently sent home but not paid for the hours which were cancelled. In the absence of Terms and Conditions of Employment she had no clarity regarding hours of work.

From the beginning of her employment she was given to understand that a contract was forthcoming as the original letter dated 02/10/2014 stated that “the relief panel would exist for approx two years from the signing of contract”. The complainant did not receive a correct statement of terms and conditions of employment. She received a statement of terms and conditions of employment on 7 September 2017. However, the terms and conditions in relation to hours of work were incomplete. The statement should have stated the maximum number of hours that she was required to be available for work. Even when the respondent made two attempts to compile a statement of terms and conditions of employment, neither of these statements contained sufficient information with reference to hours of work.

The complainant submits that she was on a zero hours contract of employment which means that the employee is available for work but does not have specified hours of work. Good practice recommendation for the Early Years Sector regarding managing the zero hours contract is that staff would be given an allocation of hours per month. The complainant was available for work and was never paid for any hours that she was available for. It is submitted that when she made herself available for work but was not required to work, then she is entitled to compensation as the respondent has breached Section 18 of the Organisation of Working Time Act where it states:-

18.—(1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week—

(a) a certain number of hours (“the contract hours”), or

(b) as and when the employer requires him or her to do so, or

(c) both a certain number of hours and otherwise as and when the employer requires him or her to do so,

(2) If an employer does not require an employee to whom this section applies to work for the employer in a week referred to in subsection (1)—

(a) in a case falling within paragraph (a) of that subsection, at least 25 per cent. of the contract hours, or

(b) in a case falling within paragraph (b) or (c) of that subsection where work of the type which the employee is required to make himself or herself available to do has been done for the employer in that week, at least 25 per cent. of the hours for which such work has been done in that week, then the employee shall, subject to the provisions of this section, be entitled—

(i) in case the employee has not been required to work for the employer at all in that week, to be paid by the employer the pay he or she would have received if he or she had worked for the employer in that week whichever of the following is less, namely—

(I) the percentage of hours referred to in paragraph (a) or (b), as the case may be, or

(II) 15 hours,

or

(ii) in case the employee has been required to work for the employer in that week less than the percentage of hours referred to in paragraph (a) or (b), as the case may be (and that percentage of hours is less than 15 hours), to have his or her pay for that week calculated on the basis that he or she worked for the employer in that week the percentage of hours referred to in paragraph (a) or (b), as the case may be.

Section 27 of the Organisation of Working Time Act, 1997applies to Penalisation and it is the complainant’s belief that she was penalised for asserting her statutory rights to have her employment entitlements recognised. This caused her considerable workplace stress. The issues surrounding her wages were resolved in December 2016 and she experienced a considerable workplace stress regarding these matters. The complainant did not receive any hours of work from the respondent since December 2016.

In her first year of work the complainant enquired several times about her contract, only to be informed by the respondent’s manager that:- ‘it was being worked on’ and ‘was taking some time to prepare’. However she never received a correct statement of terms and conditions of employment. She only received written notification of her rate of pay for the first time in respondent correspondence dated 30 March 2017. At that time she still had not yet received a written Statement of Terms and Conditions of Employment from the respondent.

The complainant wrote to the respondent on the 6th April 2017 requesting a written statement of terms and conditions of employment after the respondent told her in a telephone conversation that she would not be getting a contract. She subsequently received correspondence from the respondent dated the 17 May 2017enclosing a first draft of written statement of terms and conditions of employment which she found to be very unsatisfactory. The first draft did not have her name on it. She wrote again on 13 June 2017 to the respondent for an amended version informing the respondent that in her view there were still a number of omissions in their first draft of the statement of terms and conditions of employment. On Thursday 7 September 2017 she received the respondent’s second draft which was still not satisfactory for the following reasons:-

•                     The Statement of Terms and Conditions of employment were not signed by the employer and therefore not compliant with the Terms of Employment Act.

•                     No Date of commencement of employment appeared on it.

•                     The expected duration of the temporary contract was missing.

•                     Terms and conditions relating to annual leave/paid leave were missing.

•                     Period of notice was omitted.

•                     Details of rest periods and breaks were omitted.

In Summer 2016 the complainant applied for a part time position and was interviewed for same. The complainant is a qualified special education educator who is extremely experienced in her field with over twenty five years experience teaching children including numerous children with special needs. Respondent correspondence dated 22/09/2016 stated that her “application demonstrates excellent qualifications and relevant current training across an extensive range of areas pertinent to a wide profile of children with various needs”. The person recruited to the post had a lesser qualification and experience than the complainant. It is therefore the view of the complainant that she was not recruited because of her age and the person recruited was approximately twenty years younger than her. The respondent did not provide her with an objective reason or justification as to why she was not recruited. The complainant submits that on the balance of probabilities she was not recruited because of her age. The respondent confirmed by letter after the interview that she was not successful and that she was placed in first position on the relief panel (letter dated 02/09/2016) but she was given no indication of how long the new panel would last, so in the absence of this information and in the absence of a Statement of Terms and Conditions of Employment she assumed that the new Relief panel would exist for approximately another two years, i.e. until September 2018, similar to the first panel.

The respondent’s Manager informed the complainant prior to the interview that the interview also served as a refresher interview for the relief panel. She was offered feedback from the interview which she subsequently requested. This feedback was given in the form of a letter dated 22/09/2016 which was not easily understood and partly contradictory. As a result of a Personal Data Request to the respondent the complainant discovered that the feedback in the letter dated 22/09/2016 did not correlate with the interview notes given in the Data Access Request and that the recording of the interview notes and scores was very poor and had many inaccuracies. The score available was not totalled correctly and neither were total points totalled accurately giving the impression that she performed less well than she really did.

The complainant submits that an advertisement by the respondent in December 2017 indicated an intention to discriminate because of the wording: “One years experience,” knowing that she had more than one year’s experience. It would have been prudent to word the advertisement: “A minimum of one year’s experience” to eliminate any chance of her feeling discriminated against. The ad clearly shows that the respondent was seeking newly qualified applicants/staff. This is a clear case of discrimination on the grounds of age.

The complainant requested the application pack on 20 December 2017 but her email was not responded to until 29 December 2017. The delay by the respondent was intentional and other applicants would not have been treated in the same way. The complainant believes that her age came across as a barrier to the respondent.

It is the complainant’s submission that she was unfairly dismissed or, failing this, made redundant.

The complainant did not receive any redundancy payment and was entitled to receive 2 weeks’ pay per year of service.

The complainant did not receive minimum notice as required under the said Act. Section 4 of this Act states the minimum notice entitlements for employees with 13 weeks or more employment service - As such given the length of her employment she was entitled to 2 weeks’ notice.

In terminating the complainant’s employment it appears that there were others who were on the relief panel who were given the opportunity of permanent positions/part time work and she was not and this is against the Fixed Term Work legislation. The respondent looked after their full time workers’ employment entitlements correctly. The respondent’s Manager told the complainant that “this never happened before” when she explained to her that the whole situation regarding getting Annual Leave and wages records corrected by the respondent in 2016.

At a meeting on 12/12/2016 the complainant asked the respondent: “what is the annual leave year?” and was told that holiday pay was paid twice per year in June and December.   In December 2014, June 2015, December 2015 and June 2016 she was not paid holiday pay entitlement. She received an 8% payment in November 2016 but did not receive paid holidays and submits that she was entitled to paid holidays and was not meant to get a payment in lieu of holidays.

The failure to pay all or part of the wages due to an employee is considered an unlawful deduction and therefore the respondent breached the Payment of Wages Act.

The complainant was on a relief panel as a Child Care Assistant for the respondent.   Inclusive of holiday entitlement, she worked 51.5 hours in 2014, 116 hours in 2015 and 49 hours in 2016.   The holiday pay was paid in full in November 2016. Therefore the claim submitted in October 2017 is out of time.

The complainant was informed when she was initially placed on the panel that it was for relief work and would have a duration of 2 years. The complainant quite often declined work because it was insufficient for PRSI purposes. There was no obligation on the complainant to be available for work. By its nature relief work was largely unpredictable and therefore the respondent had no expectation that anyone on the panel would automatically be available.

Interviews were held in August 2016 for a contract of 23 hours per week. Another candidate was placed ahead of the complainant. The complainant alleges that she did not get the position due to discrimination on the grounds of age. The respondent denies this but, in any event, the complaint in respect of this interview was made over 12 months later and is therefore out of time. The respondent was invited to interview again in March 2017 but did not attend. The complainant looked for the application pack for another position in December 2017 but did not submit an application.  

The respondent denies that the complainant was ever called in to work and then told to go home early without being paid.

The relief panel was terminated because additional staff were employed on a regular basis following interviews. The complainant was not given further hours after December 2016, and did not contact the respondent seeking any. The only contact related to the terms and conditions of employment.

The Terms of Employment (Information) Act, 1994 requires;

3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),  

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

     (i) incapacity for work due to sickness or injury and paid sick leave, and

     (ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee's employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

It is clear from the evidence of both parties that the respondent did not comply with this statutory obligation and therefore this complaint is upheld.

The complaint in relation to payment of holiday pay was not made until 11 months after the holiday pay issue had been finalised and is therefore not within the required time limit under Section 27 of the Organisation of Working Time Act and may not be heard by me.

The complaint under section 6 of the Payment of Wages Act, 1991 relates to non-payment of holidays.   This complaint was not made within the required time limit under the above Act and may not be heard by me.

The complaint under the Protection of Employees (Part-Time Work) Act, 2001 related to the alleged difference in treatment in relation to payment of holiday pay. The holiday pay was sorted in November2016 and the claim under the above Act was made in October 2018 and is therefore not within the required time limit under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001, and may not be heard by me.

The complaint under section 77 of the Employment Equality Act, 1998 relates to three competitions which the respondent ran; the first in August 2016, the second in March 2017 and the third in December 2017. The complaint in relation to alleged discrimination was made in October 2017 and therefore the first complaint relating to the interview in August 2016 is not within the required time limit under Section 77 of the Employment Equality Act, 1998, and may not be heard by me.

In relation to the second competition in March 2017 the complainant did not attend for interview and no evidence was presented by the complainant in support of the complaint of discrimination and therefore the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment on the age ground.

In relation to the competition of December 2017 the complainant alleges that the advertised requirement of the post for candidates to have ‘one year’s experience’ indicated an intention to discriminate against her because she had more than one year’s experience. I think a more reasonable interpretation of the requirement would be that candidates had to have at least one year’s experience and therefore the complainant would not have been excluded. In any event the claimant did not submit an application for the position. I accept the evidence of the respondent in relation to the short delay in sending out the forms related to the time of year i.e. over the Christmas period. I conclude therefore that the complainant has failed to establish a prima facie case of discrimination in relation to conditions of employment on the age ground.

The claim in relation to zero hours contract is made under the Organisation of Working Time Act which in Section 18 states;

18.—(1) This section applies to an employee whose contract of employment operates to require the employee to make himself or herself available to work for the employer in a week which is not upheld as the complainant was not required to be available for work.

The respondent did not require the complainant to make herself available for work and, on the evidence given, the complainant only accepted hours where they met her needs in relation to PRSI contributions. This claim is therefore not well founded.

The second claim under the Organisation of Working Time Act related to allegations that on occasions, having been called in to work, the complainant was sent home early without pay. This was denied by the respondent and no specific instances were supplied by the complainant. This complaint is therefore not well founded.

The complaint did not receive a contract of employment and therefore the respondent cannot claim that she was on a fixed term. She was therefore entitled to consider that she had an ongoing position on the relief panel. The respondent could have reorganised its work requirement resulting in the termination of the position through redundancy. However, they did not do so. The complaint of unfair dismissal therefore is upheld.

In relation to compensation the Unfair Dismissals Act states;

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:  

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,  

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

The complainant did not work for the respondent in 2017 but was only informed of her dismissal in September 2017. In 2016, the final year in which she was employed she received 49 hours in total paid employment at €10.30 per hour. Her losses therefore should be based on this figure. Equally, her entitlement to notice is calculated using these figures.

The complaint in relation to penalisation is made in relation to the complainant asserting her statutory rights. It is clear from the evidence presented that the reason the complainant was not given hours after December 2016 was due to the respondent employing additional staff obviating the necessity for the relief panel. I therefore conclude that the complaint of penalisation is not well founded.

Termination of a relief panel. No signed contract.