Complainant

Respondent

Anonymised Parties

A care assistant

A section 38 care provider

Representatives

None

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00017241-001

02/02/2018

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

CA-00017241-002

02/02/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00017241-003

02/02/2018

The complainant challenges changes made by the respondent to Sunday hours. He asserts that there was an unlawful deduction pursuant to the Payment of Wages Act and a change not notified to him. He asserts that the change was an act of penalisation for complaints made against a manager. The respondent denies the complaints.

The complainant outlined that he worked in various capacities for the respondent. He submitted that the respondent had cut his pay in breach of contract. He made a complaint ten months ago regarding his head of unit. This is ongoing and it is a difficult place to work. Nothing has been done by the respondent.

The complainant outlined that he worked the same Sunday hours since 2003. There was no consultation about the change and the needs of service users has not changed. A staff ratio of 2 to 1 is required. There are usually five service users present at the weekend, so two staff was not enough. The complainant said that the respondent was now using agency staff, in contradiction of their policy not to have scheduled agency staff. He outlined that while hours moved around before, they were no pay cuts.

The first meeting took place on the 25th January 2018. This was a staff meeting which the complainant could not attend. The meeting followed the roster of the 22nd January. The roster was a four-week roster, including day shifts, night shifts and weekends. Three staff and the head of unit attended the meeting. They said that there had been a roster review to cut Sunday hours to meet “residents’ needs”.

On the 4th February 2018, 11 to 9 shifts were introduced on a Sunday, replacing the 9 to 9 shift on a Sunday, leading the complainant to lose two hours of double time every Sunday. There used to be three staff working between 9 am and 9pm but now there was two. The complainant said that only three staff could attend the meeting of the 5th February 2018. The change in staffing was only made to this unit and not applied across the board.

The complainant outlined that he had not been given the opportunity to recover lost pay. The respondent was now using agency staff who cost more money at a time when staff were losing hours and pay. The complainant stated that his reduced pay amounted to an unlawful deduction pursuant to the Payment of Wages Act. The unlawful deduction amounted to two hours per Sunday, an hourly double time rate paid at €18.50 per hour. He claimed for four Sundays, amounting to eight hours of Sunday pay (i.e. 8 x €18.50). He said that the changes were implemented unfairly, where the person in charge lost nothing while the care staff have seen the greatest cuts.

In respect of the Terms of Employment (Information) Act claim, the respondent had made this decision without any engagement or consultation. The complainant had sought to speak with them but they refused to engage. His contract was issued in 1998 and was an old contract. The respondent was not justified in what they did. They cut his pay and changed his hours without consultation.

In respect of the penalisation claim made pursuant to the Safety, Health and Welfare at Work Act, the complainant said that the cuts were punitive and arose from the July 2017 complaint regarding the person in charge. There was a 10-month investigation. The same people who did the investigation implemented the pay cuts. The complainant had clearly raised a health and safety issue. This is a stressful place to work and he had been on sick leave for the last month. The pay cuts were introduced in February 2018 following the 22nd January roster.

In reply to the respondent, the complainant asked whether the 180 other units that were reviewed all lost Sunday hours. He said that there had been no change following the May 2017 review, so did the January 2018 review lead to changes. He had undertaken to send emails on behalf of staff. He had met with the investigators and provided the requested further information. He did not accept that he had abandoned due process and said he was abandoned. The complainant said that about half of the 20 issues in the July note were still not resolved, although he did not specify which ones. The complainant said that he did not meet the respondent service manager as there was nothing to add.

The complainant said that the explanation of a roster review does not stand to scrutiny as agency staff were brought in to work on Sundays. He said that the Sunday hours of 9 to 9 were part of his contract and any change required consultation. He commented that the hours were changed again to 10 to 8. He commented that his pay has since increased as he is doing extra shifts. He would have done 9 to 9s on both Saturdays and Sundays in previous years. The meeting of the 27th March only involved four staff and took place when the roster was already out. Agency staff were now on the roster. On Sunday, 18th March and Monday, 19th March, agency was allocated a line when the complainant was already rostered. He said that he was not going to take this agency staff member’s hours as she was covering maternity leave.

The respondent outlined that it was a section 38 organisation. It accepted that no changes were introduced following the May 2017 review. It stated that changes followed the review of January 2018. In respect of the July 2017 complaint, the respondent had proposed meeting employees individually as they each had their issues. The complainant refused to meet management on the issues relating to the person in charge and maintained that this was a collective issue.

The respondent submitted that no unlawful deduction has taken place. The contract provided for 39-hour week. The roster varied according to the needs of service users. The complainant received, at least, his contracted earnings and he has, in fact, earned more over the last 12 months. Any deductions are made in accordance with section 5 of the Act.

In respect of the Terms of Employment (Information) claim, the respondent submitted that the contract provided for flexibility and the roster was not part of the contract. The rosters varied. It referred to documentary evidence of the complainant’s varying hours. There was no contractual entitlement to particular hours and there was, therefore, no breach.

In respect of the penalisation claim, the respondent said that the issues raised by six staff had been resolved following meetings. Five remaining complaints were outstanding as they refused to meet the respondent. There was a health and safety policy and a complaints system for staff to use. There were health and safety representatives available to staff.

The respondent roster review was implemented on an organisation-wide basis. Approximately 70% of the respondent locations experienced roster changes. The respondent always set the roster according to the needs of the service users. There was no requirement for three staff to work the 9am to 11am on Sundays, so this could not amount to penalisation. The roster review and changes made were not because of the complaint of the previous July. The respondent accepted that there may be agency staff rostered from time to time but they are not staff hours and were vacant hours. It submitted that the complainant is not entitled to make up Sunday hours elsewhere – he was assigned his contractual hours according to the need of service users.

The first witness said that she was given the brief to review rosters across the organisation. She looked at 79 units, examining residents’ needs to ensure the quality of service. She worked with the person in charge and the administration and service managers. The review started in May 2017 and they had to ensure that they had enough hours. They agreed to review the hours again in January 2018. They took some actions to manage annual leave as this can be difficult in a 24/7 roster. 75% of rosters changed. There were 72 hours rostered on a Sunday and two hours were removed on Sunday mornings. There was no reduction to staff hours but the cut was made to the roster.

There were no changes made in May 2017 as this was the start of the process. The witness gathered information about the unit and it was common for changes to be made later, once they ensured that there were structures in place. It is not the case that the complainant always worked Sunday hours as staff worked different Sundays.

The second witness outlined that the request book issue has been addressed. Some aspects were ongoing. They held a meeting on the 26th March 2018, after the roster was implemented. They explained the rationale for removing the 9am to 11am Sunday morning hours and the staff suggested the shift go to 10am to 8pm.

CA-00017241-001

This is a complaint made pursuant to the Payment of Wages Act. For the complainant to established that there was an unlawful deduction from his wages, he must show that the wages were “properly payable”. The respondent changed a longstanding practice of hours worked on a Sunday. This affected the amount of double time the complainant or other staff could earn on a Sunday morning. As submitted by the respondent, the complainant has not demonstrated that he had a contractual entitlement to any particular Sunday hours. The additional hours removed from the Sunday roster were, therefore, not properly payable to complainant. It follows that the complaint is not well founded.

CA-00017241-002

This is a complaint made pursuant to the Terms of Employment (Information) Act. Section 5 requires an employer to notify employees of changes to the particulars set out in the statement provided to employees. The notification must take place one month before the change is to have effect. Section 3(1)(i) provides that a statement must state “any terms or conditions relating to hours of work (including overtime)”. How the respondent devises the roster, for example, scheduling Sunday hours, is not a term or condition relating to the complainant’s hours of work. It follows that any change to how the respondent schedules Sunday hours does not fall within the notification provision of section 5. The complaint is, therefore, not well founded.

CA-00017241-003

This a complaint made pursuant to the Safety, Health and Welfare at Work Act. The complainant asserts penalisation, in breach of section 27. In Toni and Guy Blackrock Limited v O’Neill (2010) E.L.R. 21, the Labour Court held:

“It is clear from the language of this section that in order to make out a complaint of penalisation it is necessary for a claimant to establish that the determent of which he or she complains was imposed “for” having committed one of the acts protected by subsection 3. Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggested that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned determent.”

The respondent implemented roster changes in January 2018. It is for the complainant to establish that this was “but for” the July 2017 complaint. I accept the complainant’s evidence that there was an ongoing issue involving staff and management. While the complainant wanted this issue addressed collectively, the respondent addressed it on an individual basis. In applying the “but for” test, I note that gap in time between the July complaint and the roster changes some months later. I also note that the July 2017 issue was resolved for several of the complainant’s colleagues. While the complainant’s issue is not entirely resolved, I find that the changes to the roster were not an act of penalisation.

CA-00017241-001

I find that the complaint made pursuant to the Payment of Wages Act is not well founded.

CA-00017241-002

I find that the complaint made pursuant to the Terms of Employment (Information) Act is not well founded.

CA-00017241-003

I find that the complaint made pursuant to the Safety, Health and Welfare at Work Act is not well founded.

Payment of Wages Act / “properly payable”

Terms of Employment (Information) Act / notification of changes

Safety, Health and Welfare at Work Act / penalization