ADJ-00015217

Complainant

Respondent

Anonymised Parties

Carer

Nursing Home

Representatives

Marius Marosan

Mary Gavin of Hayes, Darren Stanley, Mary Duffy,

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-00019805-001

15/06/2018

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

CA-00019805-002

15/06/2018

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

CA-00019805-003

15/06/2018

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

CA-00019805-004

15/06/2018

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

CA-00019805-005

15/06/2018

The Complainant was employed as a Carer from 29th March 2017 to 9th March 2018. She was paid €12.50 per hour and worked 38 hours per week on average. She has claimed that she did not get notified in writing of a change to her contract of employment, she is owed wages for the incorrect rate of pay and did not get properly compensated for working Sundays and for holidays and Public Holidays.

Following the hearing supplementary submissions and clarification were submitted by both parties. The last correspondence was received 18th January 2019.

The Complainant stated that the Respondent has breached Sec 5 of this Act. As per her contract of employment under “Remuneration” it states, “When you join the Pre-Registered Nurse Programme you will be paid an hourly rate of €12.50, which will be paid net of all required and any authorised voluntary deductions (PAYE and PRSI). Once this programme has been completed successfully and you are registered with the Nursing & Midwifery Board of Ireland (NMBI) you will be paid an hourly rate of €18.00”. She should have progressed to Nurse as per her contract but was not given the opportunity. This is a breach of Sec 5 and compensation is sought.

The Respondent referred to the contract under “Remuneration” cited to above. They stated that she did not successfully complete the programme. So, she continued in the Pre-Registration position. The programme is self-directed 12-week course. She was to take two exams but only took one. She never operated as a qualified nurse. No changes to her contract took place warranting a written notification. This claim is rejected.

I find that the Complainant’s position did not change.

I find that her contract was not fulfilled.

I find that she did not progress to the post of qualified Nurse.

Therefore, I find that no change took place, so no change needed to be notified in writing.

I find that no breach of Sec 5 has taken place.

Breach of Sec 5

The Complainant stated that she should have achieved the position of Nurse on 29th October 2017 and be paid €18.00 per hour instead of €12.50 per hour. She was prevented from qualifying as she did not have a qualified Nurse to train alongside her as the business is short staffed. Therefore, the business did not offer the proper conditions for the contract to be respected. She asked her management on several occasions to sit the exams to allow her progress but this was not facilitated. The business did this to make sure that they had enough people at Carer grade to cope with the staff shortages. These exams are not accredited and the real training is gained in medical school and once they receive their PIN number from the appropriate body they are a graduate. She has claimed 20 weeks x €5.50 X 38 hours per week amounting to €4,180.

The Respondent stated that she was paid according to her contract of employment. She did not successfully complete the training programme, she did not operate as a qualified Nurse and was not registered as a Nurse with the Board. They stated that the move to the higher rate of pay is dependent upon the successful completion of the course which includes both exams and not solely upon receipt of a PIN number from the Board. This is specified in her contract of employment and she was aware that she had to do exams when she signed the contract. The successful completion of the course and the receipt of a PIN number is specified in the contract. She did not complete the training and therefore did not undertake nursing duties and so is not entitled to the higher rate of pay claimed.

I find that in order to succeed with a complaint under this Act you must establish a contractual entitlement to the monies claimed.

In this claim the Complainant is alleging that through no fault of her own she did not progress to the position of Nurse. Therefore, she should not be punished for the Respondent’s failures.

However, I find that she did not progress to the position of Nurse.

I find that she did not operate as a Nurse.

I find that in those circumstances she was not entitled to be paid at a Nurse’s rate of pay.

I find that the wages claimed are not properly payable within the meaning under the Payment of Wages Act.

I find then that she has not got a contractual entitlement to the monies claimed.

I have decided that the Complainant has not established a contractual entitlement to the monies claimed.

I have decided that the monies claimed were not properly payable as per the contract of employment.

I have decided that the complaint is not well founded and so it fails.

CA 19805-001 Sunday Premium

The Complainant stated that she was paid a 15% premium for working Sundays. The HSE pays double time to nurses. The Labour Court has set premia ranging from 25 % to 100%. She is claiming an increase in the premium paid.

CA 19805-002 Holidays

She is claiming the value of the holiday pay. He has claimed that she should have been on €18.00 per hour which is the qualified nurse’s rate, through no fault of her own she was on the Pre-Registered rate of €12.50 per hour. She is claiming the difference of €5.50 per hour and have it applied to her holiday pay.

CA 19805-003 Public Holidays

They stated that there were three Public Holidays in the allowable period. She was paid double time for Dec 25th and 26th. On 1st January she was paid 7.5 hours. They relied upon S.I. 475/1997 regarding the calculation of pay which stipulates one fifth.

This part of the claim is rejected.

CA 19805-001 Sunday Premium

I find that Sec 14 should be taken in its totality so both the premium and the reasonableness must be both considered.

I find that the Act assists with what is reasonable. Reasonableness is an objective consideration.

I note that the Complainant has used the HSE as a reference point. However, I find that the HSE is a Public organisation whereas the Respondent company is a Private one.

Therefore, I find that the HSE is not a comparable industry.

Therefore, I find that the Complainant has not made its case in respect of private industry.

So, under the circumstances I find that 15 % is a reasonable premium.

I find that this part of the claim fails.

CA 19805-002 Holidays

I find that she was paid in accordance with her position at that time. The fact that this position is now in dispute does not alter the facts that she was paid according to her position and she received paid holidays according to that rate.

I find that this part of the claim fails.

CA 19805-003 Public Holidays

Sunday premium, holiday calculation and public holidays