Complainant

Respondent

Anonymised Parties

Nurse

Nursing Home

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00023823-001

05/12/2018

The complainant is employed by the respondent as a Staff Nurse in a Nursing Home. The employment commenced in February 2015 and is on a part-time basis. The complaint is in relation to the calculation of pay for public holidays.

The complainant has always received double-time in respect of working on a public holiday and that is now being changed.

The respondent has advised that the calculation for working on a public holiday is not in accordance with the legislation.

The new calculation can result in a payment that would be less than double-time.

Internal discussions have failed to resolve the matter.

The respondent was the subject of a WRC inspection in September 2018.

The inspector advised that the calculations in place for payments for public holidays were incorrect.

The respondent was formally issued with a contravention letter by the inspector on 10 October 2018.

The proposed changes have not been implemented as it has not been possible to reach agreement with staff in this regard.

This complaint was referred to the WRC Adjudication Service under Section 7 of the Terms of Employment (Information) Act, 1994 on 5 December 2018. The evidence on behalf of the respondent was that the changes were proposed as a result of a workplace inspection carried out by a WRC inspector and the issuing of a letter which attached a Notification of Contravention of Employment Legislation and Compliance Direction.   A copy of this letter was provided at the hearing. Amongst the contraventions noted during the inspection (on 19 /20 September 2018) was that there were instances where the public holiday entitlements of some members of staff had not been calculated in accordance with the provisions governing same. The respondent was ordered to rectify the contraventions and provide documentary evidence of the rectification to the WRC by 31 October 2018.

Section 7(1) of the Terms of Employment (Information) Act, 1994, states:

An employee shall not be entitled to present a complaint under Section 41 of the Workplace Relations Act, 2015, in respect of a contravention of Section 3, 4, 5 or 6, if the employer concerned has –

(a)    complied with a direction under section 6A in relation to the contravention………or,

(b)    been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.

Upon receipt of this letter the respondent was in contact with the members of staff regarding the implementation of these directives. The respondent had for many years always paid double time to any employee who was required to work on a public holiday. This provision was included in many contracts and was a clause in the statement of the terms and conditions of employment issued to the complainant. The complainant works irregular hours with daily hours fluctuating from a minimum of 3 hours to a maximum of 12 hours. Examples were provided of instances where, under the proposed change in calculation, the complainant could earn appreciably less pay on a public holiday than at present. It was accepted, however, that in the case of other employees there would be a gain.   Both parties accepted that there had always been a good working relationship between management and staff and attempting to get agreement on the issue had meant that the deadline imposed by the inspector had not been met and indeed, at the date of hearing, matters were still unresolved.  Given that the employer in this case has not yet complied with the direction from the inspector and the period specified in the direction had expired then the complainant is not precluded by Section 7(1) of the Act from presenting a complaint.

The specific complaint listed on the complaint form presented by the complainant was that she had not been notified of a change to her terms of employment. Section 5(1) of the Act states:

Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under Section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

(a)    1 month after the change takes effect, or

(b)    Where the change is consequent on the employee being required to work outside the state for a period of more than 1 month, the time of the employee’s departure.

The evidence before me is that up to the date of the hearing no change had actually taken place.   According to the Act notification in writing can take place up to 1 month of after any change takes place.   It is obvious therefore that there had been no breach of the Act as alleged at the time of referral of the complaint. Indeed, the timeframe stipulated by the inspector for implementation of the change has not been met by the respondent because management have been in dialogue with staff, including the complainant, seeking agreement on its implementation. I note that there were at least 30 members of staff on the sample roster supplied at the hearing and that the impact of the proposed change will affect different members of staff in different ways. From discussions at the hearing it appears to me that there is an industrial relations issue involving a group of employees that needs to be worked through by the parties, with assistance if required.

Complaint No. CA-00023823-001: This isa complaint under the Terms of Employment (Information) Act, 1994.   The complaint stated that the complainant had not received notice of a change to her terms of employment. For the reasons outlined above I find that there was no change in the terms of the complainant’s statement of employment at the time the complaint was lodged and accordingly I find the complaint to be not well-founded.