ADJ-00015261

Complainant

Respondent

Anonymised Parties

Nurse

Nursing Home

Representatives

Marius Marosan

Mary Gavin, Hayes Solicitors

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-00019804-001

15/06/2018

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

CA-00019804-002

15/06/2018

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

CA-00019804-003

15/06/2018

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

CA-00019804-004

15/06/2018

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

CA-00019804-005

15/06/2018

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

CA-00019804-006

15/06/2018

The complainant was employed as a nurse by the respondent commencing employment on 25 November 2016.   The complainant was employed on a full-time basis and was paid an hourly rate of €18.00 per hour at the time of cessation of employment on 6 May 2018.

The complainant was not paid a premium for working on a Sunday.

The complainant was not notified of a change in his terms and conditions of employment.

The respondent deducted money from the complainant’s wages for training.

The complainant was not paid in accordance with his contract.

The complainant did not receive his full annual leave entitlement.

The complainant did not receive his full public holiday entitlement.

The complainant is paid an additional allowance for working on a Sunday.

No changes were made to the complainant’s contract which were not already provided for.

The deduction from the complainant’s salary for training was made in accordance with the provisions of the legislation.

The complainant’s contract contains provisions which authorises certain deductions from his salary.

The respondent is unaware of any shortfall in annual leave entitlement.

The complainant was paid for public holidays in accordance with the legislation.

The complainant commenced employment on 25 November 2016 as a carer with the respondent which operates a number of nursing homes. In March 2017 he commenced the pre-registration course for a nurse and completed this course in August 2017. The complainant for his part stated that he had been recruited from his native country as a nurse. The complainant was placed on the qualified nurse rate following completion of a required course and registration with the statutory board. There is a dispute between the parties as to when this occurred. The complainant resigned and terminated his employment with the respondent with effect from 6 May 2018. The respondent maintains that there is no record of any grievances being raised by the complainant during his employment and neither did his resignation letter make any reference in that regard. The complainant stated that he had raised issues verbally but, if that was so, it does not appear to have been done in a formal manner. It must be said that there was a notable lack of documentation provided by the complainant in support of his various claims.

Complaint No. CA-00019804-001:

This is a complaint under the Organisation of Working Time Act, 1997. The complainant alleges that he was not properly compensated for working on a Sunday.

Section 14 of the Act states:

(1)    An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely –

(a)    By the payment to the employee of an allowance of such amount as is reasonable having regard to all the circumstances, or

(b)    By otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

(c)     By granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

(d)    By a combination of two or more of the means referred to in the preceding paragraphs.

(2)    Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

(3)    For the purposes of proceedings under Part IV before a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to a an employee to whom this subsection applies (“the first mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of him or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first mentioned employee that is reasonable having regard to all the circumstances:……

(4)    Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.

(5)    In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first mentioned employee in subsection (3) is employed to do….

In this case the complainant’s representative stated that nurses employed by the HSE had an agreement that stipulated double-time as the applicable premium for Sunday working and that that premium should consequently apply to the complainant.   No further specific evidence was put forward in this regard. The respondent argued that the complainant was employed in the privately-run nursing home sector which was not comparable to public sector general health care provision. A Sunday premium of 15% applied and was specified on each pay slip. In the absence of any evidence to the contrary I do not accept that the complainant is employed to perform work under similar circumstances that is identical or similar to a nurse employed in the public general healthcare sector. The complaint is therefore not well founded.

Complaint No. CA-00019804-002:

This is a complaint under the Terms of Employment (Information) Act, 1994, to the effect that the respondent changed the terms of the complainant’s employment without notification. The specific complaint is that the complainant successfully completed the Pre-Registered Nurse Programme and received his PIN from the Nursing and Midwifery Board of Ireland (NMBI) on 8 August 2017. He continued to be employed as a Carer and did not receive an increase in wages until late October 2017.

The relevant clause of the contract appears under the heading of Remuneration and states as follows:

During induction and your (3) three months as a Carer, you will be paid €10.00 per hour. 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 and Midwifery Board of Ireland (NMBI), you will be paid an hourly rate of €18.00 less all required and voluntary reductions (PAYE and PRSI).   Please be reminded that receipt of your NMBI Pin prior to completion of the Pre-Registered Nursing Programme will not result in your salary being increased.

The respondent for their part stated that they received notification on 17 August that the complainant’s qualification was recognised by the NMBI subject to payment of a registration fee (by the complainant) and that the complainant went live on the registry on 22 August 2017. The complainant may have been rostered as a Carer due to staff shortages but was paid as a nurse. The increase was applied and any back-pay due was paid.

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 place…..

On the basis of the evidence before me I find that even if there was an administrative delay in implementation of the increased wage this does not equate to a change as specified in the above section of the Act, particularly having regard to the fact that the complainant suffered no material loss in this regard.

Complaint No. CA-00019804-003:

This is a complaint under the Payment of Wages Act, 1991, regarding an alleged unlawful deduction in respect of training costs from the complainant’s wages.

Section 5(1) of the Act states:

An employer shall not make a deduction from the wages of an employee (or receive any payment from the employee) unless –

(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 and authorised to be made by virtue of a term of the employee’s contract 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.

The complainant wrote to the respondent on 28 April 2018 giving formal notice of his intention to resign with effect from 12 May 2018. The respondent’s statement of employment contains a clause entitled Required Commitment. That clause states that the respondent is making a significant investment in the employee costed at approximately €14,000.00 and that in return the employee is expected to remain in their employment for at least 24 months. The clause goes on to outline the fact that the respondent will look to recover this cost should the employee decide to resign prior to that time. This recovery cost is graduated downwards on the basis of the amount of time spent in employment from a maximum of €8,000.00 to a minimum of €4,000.00. There is also a clause entitled Deductions from Wages which states that the respondent reserves the right “to deduct from you wages any sums which you may owe the Company”. The examples given refer to loans, overpayments, charges for lost company property, unauthorised absences and lateness. On 4 May 2018 the respondent wrote to the complainant advising him that he had not given the 6 weeks’ notice specified in his contract and invoking the Required Commitment clause.   The letter outlined that under the terms of this clause it was adjudged that the complainant would have to repay the sum of €6,000.00 and that 7 days’ notice was given of the intention to deduct €800.00 from his next salary payment. The letter further advised that arrangements should be made to pay the balance of €5,200.00 within 14 days. In actual fact the amount deducted from the complainant’s wages was €1,040.23. A further €415.75 was deducted from the final payslip dated 20 May 2018.

The respondent in their submission state that they acted on the basis that the complainant’s decision to resign was an act or omission on his part. Section 5(2) of the Act states:

An employer shall not make a deduction from the wages of an employee in respect of –

(a)    any act or omission of the employee, or

(b)    any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

Unless –

(i)                  the deduction is required or authorised to be made by virtue of a term (whether expressed or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and employee, and

(ii)                the deduction is of an amount that is fair and reasonable having regard to all of the circumstances (including the amount of wages of the employee), and

(iii)               before the time of the act or omission or the provision of goods and services, the employee was furnished with –

(I)                  in case the term referred to in subparagraph (i) is in writing, a copy thereof

(II)                in any other case, notice in writing of the existence and effect of the term,

and

(iv)               in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction ……..

In the case before me it is obvious that there was in existence in the contract a term providing for the recovery of what was termed the investment by the respondent in training the complainant. That clause, however, does not specify that the money will be recovered by means of deduction of wages and indeed states that such recovery would be sought on a voluntary basis initially and then legally if required. The clause pertaining to deductions from wages, whilst dealing with a number of issues, does not include recovery of training investment as one of those issues. I do not accept that this deduction is covered by a term of the complainant’s contract. In addition, it is not specified as to how the figures ranging from €8,000.00 to €4,000.00 are arrived at. Finally, I note that the notice given does not conform with the legislation as in the case of the first deduction an amount greatly in excess of that notified to the complainant was taken and in the case of the second deduction no notice at all was given. For these reasons I find this complaint to be well founded.

Complaint No. CA-00019804-004:

This is a complaint under the Organisation of Working Time Act, 1997, to the effect that the complainant did not receive their annual leave entitlement. It was stated on behalf of the complainant that the complainant received only 39 hours holiday pay for a week of annual leave when in fact he regularly worked in excess of the basic hours. The respondent disputed this at the hearing and produced records of hours worked on a fortnightly basis which they stated showed that the complainant, on average, worked 38.05 hours during his period of employment.

Section 19(1) of the Act states:

Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to –

(a)    4 working weeks in a leave year in which he or she works at least 1, 365 hours (unless it is a leave year in which he or she changes employment),

(b)    one-third of a working week for each month of the leave year in which he or she works at least 117 hours, or

(c)     8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of these paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.

Section 2(1) of the Act defines the leave year as “a year beginning on any first day of April”. In accordance with the provisions of Section 23(1)(b)(iii) of the Act any outstanding annual leave accrued during the annual leave year 2017 / 2018 (i.e. 1April 2017 to 31 March 2018) is covered by this complaint.

The respondent was requested to provide further information regarding working hours and annual leave calculations. Having done so it was accepted by the respondent that the complainant was underpaid in respect of the annual leave year 2017 / 2018 to the extent of 9.84 hours.   In respect of the leave year commencing the 1April 2018 the complaint worked 294 hours. I note that on pay slip dated 22 April 2018 the complainant was paid 39 hours in respect of annual leave and on pay slip dated 20 May 2018 a further 11.67 hours were paid in this regard. This has resulted in an overpayment of an amount in excess of the deficit due from the previous leave year. I therefore find that based on the evidence before me the complainant was not underpaid in relation to his annual leave entitlement in the period covered by his complaint and that the complaint is accordingly not well founded.

Complaint No. CA-00019804-005:

This is a complaint under the Payment of Wages Act, 1991. This complaint was withdrawn by the complainant at the hearing.

Complaint No. CA-00019804-006:

This is a complaint under the Organisation of Working Time Act, 1997, in relation to a claim by the complainant that he had not received his proper entitlement with regard to Public Holidays. The Public Holidays that fall within the period covered by the complaint are 25 and 26 December 2017, 1 January 2018, 17 March 2018, 2 April 2018 and 7 May 2018.   Of these the complainant worked 25 / 26 December and 2 April and was paid at the rate of double-time. The dispute is in relation to the rate of pay for Public Holidays not worked. The complainant’s position was that a flat rate of 8 hours was paid for these Public Holidays and that this did not take account of the actual hours worked by him but did not submit specific examples regarding the alleged deficit. The respondent argued that this payment represented one fifth of average weekly pay and was in line with the requirements of the legislation.

Section 21(1) of the Act states:

Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely –

(a)    A paid day off that day,

(b)    A paid day off within a month of that day,

(c)     An additional day of annual leave,

(d)    An additional day’s pay:

Provided that if the day on which a public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

The respondent in a further submission accepted that there had been a miscalculation in respect of actual hours worked which yielded the following information:

1 January 2018

Hours worked in previous week: 42

Paid 8 hours. Due 8.4 hours.

2 April 2018

Hours worked in previous week: 45.41

Paid 8 hours. Due 9.08 hours

7 May 2018

Hours worked in previous week: 44 hours

Paid 8 hours. Due 8.8 hours

Based on the above there was a shortfall of 2.28 hours pay due to the complainant which equates to €41.04 based on €18.00 per hour.

According to the evidence before me I find this complaint to be well founded.

Complaint No. CA-00019804-001:

For the reasons outlined above I find this complaint to be not well founded and it accordingly fails.

Complaint No. CA-00019804-002:

For the reasons stated above I find this complaint to be not well founded and it accordingly fails.

Complaint No. CA-00019804-003:

For the reasons stated above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €1,465.98 as compensation in this regard.

Complaint No. CA-00019804-004:

For the reasons stated above I find this complaint to be not well founded and it accordingly fails.

Complaint No. CA-00019804-005:

This complaint was withdrawn at hearing by the complainant.

Complaint No. CA-00019804-006:

For the reasons stated above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €41.04 as compensation in this regard.