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-00019808-001

16/06/2018

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

CA-00019808-002

16/06/2018

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

CA-00019808-003

16/06/2018

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

CA-00019808-004

16/06/2018

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

CA-00019808-005

16/06/2018

The Complainant is a non-national Nurse who was employed by the Respondent from 25th January 2017 to 13th May 2018.

The Complainant claims that he was not notified in writing of a change to his terms of employment in breach of S7 of the Terms of Employment (Information) Act, 1994.

He says he was not paid monies due to him and claims an additional 16,000 euro monies unpaid. He came to Ireland to take up this role. He started in the role and after 1 month his pay was increased to 12.50 euro per hour. He then worked as a Carer on 12.50 euro per hour. He received his pin as a pre-registered nurse on 12th April 2017 but was not trained with a nurse so he could take up a nursing role at 18 euro per hour. He remained on 12.50 euro per hour working as a Carer for 4 months as the Respondent was short-staffed. He was advised his English was good by the English tutor. There was no formal reviews of his progress. He was never told he had to take an exam when taking up the position. He is a pre-registered Nurse.

It was never explained to him what steps he had to take to pass an exam.

He was told he would be working with a nurse, but this only happened a few times. He says the Respondent should have advised of the changes to his contract and there was non-compliance with his terms and conditions. The only condition at part 4 for payment is obtaining his NMBI pin.

In addition, he was not paid a Sunday Premium as per the collective agreement. The Respondent says they paid 15% extra hourly rate on Sunday but the Complainant was not aware of this it was not set out in his contract or payslips.

The Complainant says his average hours is higher than 39 hours per week and he should have been paid more holidays. He worked 4 days per week on 12 hour shifts which is 48 hours average per week and this should be based on hours worked.

For public holiday pay he worked 12 hours but was only paid for 8 hours, and not paid a premium for night shifts.

The Respondent provided a contract of employment to the Complainant which was signed by him on 10th January 2017. There have been no changes to his contract of employment that should have been notified.

The Respondent’s contract of employment covers the following stages of integration to Qualified Nurse:

1 “One month induction program for which the employee will be paid a rate of 10 euro per hour minus Irish statutory deductions.

2 Work as a Carer until you have an acceptable level of written and oral English, which we expect to be a minimum of 3 months and maximum of 6 month with review of your progress with your level of English at the end of each month, for which the Employee will be paid a rate of 10 euro per hour.

3 Pre-registration 12 week course for which the Employee will be paid a rate of 12.50 euro per hour minus Irish statutory deductions:

4. A follow on 8 month probation period as a Nurse for which you will be paid a rate of 18 euro per hour minus Irish statutory deductions as soon as you receive your NMBI pin…”

The Respondent says the Complainant failed to complete the pre-registration course. His English was good but he had to become familiar with all of the medicines and medical policies and sit an exam. The onus was on the Complainant to do this, it is self-directed adult education. They asked him on 4 occasions was he ready to sit the exam. The Complainant insisted on working nights. There was no grievance raised in the course of his employment and on 28th May 2018 he resigned.

The Nurse Educator said the Complainant signed sheets confirming attendance at classes for 9 weeks of the pre-registration programme. The fact that the Nurses pin issued does not mean the Nurse is a safe practitioner.

The Respondent has provided evidence of payment of a Sunday premium at 15% of the hourly rate to the Complainant. There is no collective agreement applicable to the Respondent’s employment. The Respondent adduced evidence to confirm they paid 15% extra hourly rate on Sunday. The Complainant never raised this.

The Respondent calculated the Complainant’s holidays based on 8% of the hours worked. In relation to public holidays, the Respondent denies there was a shortfall in the pay given for this. Double time is paid when working on public holidays. The Complainant did not have set hours or days of work and this changed weekly. He worked 42 hours per week as a pre-registered Nurse. He had 11 days sick-leave.

I have heard the evidence of both parties and considered their written submissions and those furnished on 11th and 20th September, and 9th October 2018.

CA-00019808-001

The Complainant alleges a breach of S7 of the Terms of Employment (Information) Act 1994 as he says he should have been provided with written notice of the change to his terms and conditions of employment. This is denied by the Respondent who rely on the contract of employment signed by the Complainant on 10th January 2017.

The Complainant is a non-national who agreed to come to work in Ireland on the basis of his contract of employment. It is a condition of his contract that he speaks and writes fluent English. The Complainant was informed by the Respondent’s English tutor that his English is good.

He claims that part 4 of his contract (page 1) provides that as soon as he received his pin from the Nursing and Midwifery Board he was entitled to payment of 18.00 euro per hour. He received his Pin on 12th April 2017. However he never received 18.00 euro per hour, as he remained on 12.50 euro per hour until he resigned in May 2018, so the Respondent changed his terms and conditions.

The terms of the contract of employment must be read as a whole and given their literal meaning. The contract terms provide:

“This contract of employment covers the following stages of integration to Qualified Nurse:

1 “One month induction program for which the employee will be paid a rate of 10 euro per hour minus Irish statutory deductions.

2 Work as a Carer until you have an acceptable level of written and oral English, which we expect to be a minimum of 3 months and maximum of 6 month with review of your progress with your level of English at the end of each month, for which the Employee will be paid a rate of 10 euro per hour.

3 Pre-registration 12 week course for which the Employee will be paid a rate of 12.50 euro per hour minus Irish statutory deductions:

4. A follow on 8 month probation period as a Nurse for which you will be paid a rate of 18 euro per hour minus Irish statutory deductions as soon as you receive your NMBI pin;

5. 9 (nine) months after the completion of your 8 month probation period as a Nurse, a total of 24 months from the date you joined the Nursing Home ( made up of, 1 month’s Induction, an assumption you work as a Carer for 3 months, 3 months on the Pre-Registration Program, 8 months probation as a Nurse, plus the 9 months) your rate per hour will increase to 19.00 euro per hour minus Irish statutory deductions.”

Remuneration

“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 & 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 euro less all required and any authorised voluntary deductions (Paye & 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 contract does not provide for a rate of 18.00 euro to be paid automatically to the Complainant once he received his NMBI Pin, it provides for a progression from induction to probation as a Nurse which is dependent on a number of factors, completion of induction, experience as a Carer and an acceptable level of English, and completion of a 12 week pre-registration course.

The Respondent has provided evidence of the attendance of the Complainant on the pre-registration course for a period of 9 weeks only. He did not complete the course and thus was not eligible to progress to the position of Nurse on probation.

I find the complaint is not well founded, and there was no change to the Complainant’s terms and conditions.

CA-00019808-002

The Complainant alleges a breach of S27 of the Organisation of Working Time Act 1997 in that he was not paid a Sunday premium as per the collective agreement. There is no collective agreement applicable. His complaint was received by the Workplace Relations Commission on 16th June 2018. The Complainant’s contract of employment does not set out details of any Sunday Premium applied.

The Respondent has produced evidence of hours worked by the Complainant during the relevant period. The Complainant generally worked 12 hour shifts although this varied sometimes. The Complainants was paid a 15% increase in his hourly rate for Sundays. This was not stated in the Complainant’s contract of employment in accordance with S14 of the Act. It is for the Respondent to show that the hourly rate contains an element intended to compensate the Complainant for the requirement to work on Sunday. This must be clearly discernible from the contract of employment or the circumstances surrounding the conclusion of the contract of employment as stated by the Labour Court Viking Security Ltd v Valent, DWT1489. In addition, payment of the full 12 hours worked was not discharged and there is a shortfall of 5.75 euro for December, January, March, April, May 2018 evidenced. No documents were furnished for February 2018.

I find the complaint well founded and direct payment of 34.50 euro shortfall together with compensation of 300 euro for the breaches.

CA-00019808-003

The Complainant alleges that he was not paid his correct entitlements for holidays and disputes his average hours submitted by the Respondent. The Complainant says that the hours do not reflect additional 2 shifts of 24 hours he agreed to work within the relevant statutory period.

The Respondent says the hours recorded are done so biometrically and has submitted the records. S25 of the Organisation of Working Time Act 1997 provides that the onus is on an employer to produce records of hours worked. It has done so. There is no evidence adduced substantiating the additional shifts claimed by the Complainant. Any breach of S19 of the Act this would be a technical breach and de minimus. In the circumstances, I find the complaint is not well founded.

CA-00019808-004

The Complainant alleges he has not been paid appropriately in relation to 6 public holidays within the statutory period.

The Complainant worked 12 hour shifts mostly. It is evident from his payslip that he was paid for 23 hours for 2 public holidays in December, 7.50 hours for January, 11.50 hours for March, 11.50 hours for Easter and there is a shortfall of 5.5 hours payment.

S22 of the Organisation of Working Time Act 1997 provides the rate of payment shall be determined by the Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997 (S.I. No 475/1997). Regulation 5 provides that if the employee’s pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done, the relevant rate in respect of the public holiday is the sum equal to the sum ( including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime) paid to the employee in respect of the normal daily hours last worked before that public holiday. From the records furnished to me the last Sunday which the employee worked prior to the 1st January 2018 was on 24th December 2017 and was a shift of 12 hours.

I find the complaint is well founded and direct payment of the shortfall of payment in respect of 5.5 hours to the Complainant total 68.75 euro together with 150 euro compensation for the breaches.

CA-00019808-005

My decision in CA-00019808-001 found that the Complainant had not fulfilled the training requirements in order to progress to Nurse probation, and accordingly there was no change to the Complainant’s terms and conditions. In addition, no grievance was ever raised by the Complainant during the course of his employment regarding his wages nor the pre-registration assessment process, which was set out in writing to him prior to commencement of employment. I decide the complaint is not well founded and no further monies are owed to the Complainant.

CA-00019808-006

The Complainant alleges that he was not paid any premium for night shifts. This overlaps with CA-00019808-002 when a decision was made in relation to non-payment of Sunday premium for night shifts. There is no premium payable for night shifts contained in the contract of employment.

I find this complaint is not well founded.

CA-00019808-001

This complaint is not well founded.

CA-00019808-002

I find the complaint well founded and direct payment of 34.50 euro shortfall together with compensation of 300 euro for the breaches

CA-00019808-003

This complaint is not well founded.

CA-00019808-004

I find the complaint is well founded and direct payment of the shortfall of payment in respect of 5.5 hours to the Complainant total 68.75 euro together with 150 euro compensation for the breaches.

CA-00019808-005 and CA-00019808-006

These complaints are not well founded.

Interpretation of contract, wages due, Sunday premium, obligation to include in contract of employment, annual leave, public holidays, shift premium.