ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015220
Parties:
| Complainant | Respondent |
Anonymised Parties | A Nurse | A Nursing Home |
Representatives | Marius Marosan |
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Complaint(s):
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-00019806-001 | 16/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019806-002 | 16/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00019806-003 | 16/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00019806-004 | 16/06/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00019806-005 | 16/06/2018 |
Date of Adjudication Hearing:29/08/2018
Workplace Relations Commission Adjudication Officer:Penelope McGrath
Procedure:
This matter comes before an Adjudicator of the Workplace Relations Commission on foot of certain complaints which are contained in a Workplace Relations Complaint Form dated the 26th of April 2018 wherein Complaints have been made in respect of Unfair Dismissals, Breaches of the Equality legislation as well as breaches of certain provisions of the Organisation of Working Time Act of 1997, the Payment of Wages Act, 1991 and the Terms of Employment (Information) Act, 1994
In accordance with Section 41(4) of the Workplace Relations Act, 2015 this matter has been referred to the Adjudicator Services by the Director General of the Workplace Relations Commission and in particular it has been referred so that this matter can be inquired into and the parties be given an opportunity to be heard and to present evidence relevant to the complaint.
The Complaints have been made within the appropriate time limits.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended)
A decision of an adjudication officer under Section 41 of the Workplace Relations Act shall do one or more of the following:
- Declare the complaint was or was not well founded;
- Require the Employer to comply with the relevant provision;
- Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
A complaint of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
Background:
The Complainant was recruited for his nursing skills and initially placed by an Agency in a nursing home as a carer to be promoted in due course to the status of Nurse as appropriate |
Summary of Complainant’s Case:
The Complainant worked in the placement for 16 months without incident. The Complainant resigned as other opportunities arose elsewhere for him. The Respondent withheld the Complainant’s final wages as an off-set against the expense of having to recruit him in the first palce. |
Summary of Respondent’s Case:
The Respondent states it is entitled to withhold monies earned in circumstances where the Complainant has breached his Contract of Employment wherein he was expected to work for a full 24 months before moving elsewhere. This the Respondent says is fair and reasonable in circumstances where the outlay in the recruitment process is so high. |
Findings and Conclusions:
The Complainant is a Nurse coming from within the EU. The Complainant was recruited by the Respondent Nursing Home and invited to come and live and work in Ireland. The Complainant’s command of the English language was imperfect though improved over time. The Complainant started work on the 19th of December 2016 having signed a Contract setting out his Terms and Conditions of Employment on the 13th of December 2016. The Contract references an induction period and an initial period working as a carer to allow for improvement in the English Language. The Employer it seems has the power to determine when that skill is acquired at which time the Complainant salary goes up from €10 per hour to €12 per hour for a 12 week period of prer-egistration at which point the Complainant goes on to a rate of €18 per hour as a Nurse (albeit on a probationary period). An unusual aspect of the Complainant’s Contract of Employment (which is a nine page document) is the Paragraph headed “Required Commitment”. This paragraph sets out that the Company has invested an amount of approximately €14,000.00 in bringing the individual Nurse to the point of being a Registered Nurse and I have been shown a comprehensive break down of these purported expenses which include for example €3,600.00 in respect of a recruitment Fee, a further €840.00 towards the full salary of an individual named as Ms. Duffy whose job appears to be processing recruitment applications and another figure od €1,507 for training days. To my mind the expenses disclosed appear to me to be lawful business expenses which should ordinarily be off-set against the company’s profits. However, that is a moot point here. In the “Required Commitment” paragraph it further states that in return for the significant investment there is an expectation that the Nurse (Complainant herein) would remain in the workplace for a period of 24 months. In the event that a Nurse resigns before the completion of that period then the Contract of Employment stipulates that the Company will seek recovery of the funds and sets out a sliding scale for the amounts based on the length of time already served. As it happens the Complainant herein resigned in April of 2018 (giving two weeks notice) after 16 months of service. According to the Contract of Employment he potentially owes the Employer the sum of €6,000.00. I note that the wording in the “Required Commitment” paragraph states that: “The level of recovery sought, voluntarily initially and legally if required will depend on the length of your employment should you decide to resign…” The wording therefore would suggest that the Employer would ask the Employee to Voluntarily make a payment in the amount deemed due and owing under the Terms of the Contract. Thereafter, it seems legal recovery would be pursued which I could only interpret as pursuing the issue through the Courts i.e. as a Contract Debt. The “Required Commitment” paragraph does not state that monies deemed due and owing pursuant to this required Commitment will be deducted from any salary or remuneration which might be due and owing at the time of resignation. In fact, the Contract of Employment goes on to state in the very next paragraph what lawful Deductions might be envisaged in the course of the employment. Including for unauthorised absences, loss of personally assigned property etc. On the 5th of April, 2018 the Employer wrote to the Complainant stating that it will be deducting monies owed from the next salary payment. It seems to me that this letter bypasses the nicety of seeking the money on a voluntary basis (per the wording of the Contract) and goes straight to the only source of money immediately available (the salary for hours worked) and then goes on to threaten legal proceedings for the recovery of the balance. It is noted that in the Complainant’s last nett salary €1,461.00 of which the Respondent deducted €1,260.00 under the heading “Required Commitment”. The Respondent Solicitor asked me to consider Section 5.
(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. In particular, I have been asked to consider the Respondent’s entitlement to make a deduction by virtue of section 5(b) which allows for deductions authorised by virtue of the terms of the Contract of Employment and where the Complainant ostensibly gave his consent when he signed the Contract of Employment. My observation to that, is that the Contract does not state that in seeking recompense for any alleged outlay it would sequester salary in the manner it has. The Contract specifically reserves the right to seek the alleged outlay and expense voluntarily and then through the Courts. By way of observation, although I asked, I was not given any confirmation that the Complainant (who had limited English) was advised as to the meaning of the clause entitled “Required Commitment”. The letter from the employer dated the 5th April states he was made fully aware of the “Required Commitment” at the outset though I would observe that it is not dealt with separately to the Employment Contract as a whole. I think it is fair to assume that the Complainant certainly does not appear to have had legal advice. I am also satisfied that the purported document setting out the expenses was only made available at the last minute. It would be natural for the Complainant to have been allowed to at least challenge the basis for which the €14,00.00 figure derived. I am also mindful of the fact that Section 5(2) references the fact that deductions in respect of the services provided for the employee must be fair and reasonable in all the circumstances. I could not hold that the retention of more than 85% of the Complainant’s final salary is either fair or reasonable. I note that the Complainant conceded he had no claim under the heading Holiday Pay and this claim was withdrawn. The Complainant made the case that for Bank Holidays not worked he should be paid for twelve hours and not eight as his shifts were always twelve hours. I accept the Complainant’s claim in this regard and he is therefore owed four hours for each of three Bank Holidays which fell in the six months immediately preceding the Complaint. Sunday premium of 15% was paid and there is no claim under this heading. The Complainant states he should have been getting paid at the higher rates of €18 and/or €19 before he was. However, the Contract clearly states certain criteria have to be met before he could go to the next level (e.g. having adequate English). I am satisfied that the Complainant raised no formal Grievance in the course of Employment and cannot now rely on “what should have happened” in the course of the employment.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 I find that one complaint was well founded and direct the Respondent pay to the Complainant the sum of €1,260.00 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 I make no further finding under the Payment of Wages Act Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 Regarding Bank Holidays I find the claim is well founded and the Respondent should pay the amount of €216.00 to the Complainant Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 Regarding Sunday Pay I find that there is no basis for bringing this claim Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 Regarding Holiday Pay I find there is no basis for bringing this claim. |
Dated: 4th October, 2018
Workplace Relations Commission Adjudication Officer:Penelope McGrath
Key Words:
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