ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016175

Parties:

Complaint(s):

Date of Adjudication Hearing: 06/12/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant is employed as a Care Assistant for home services where she provides home care to service users of the client at the services users’ homes or at residential care homes.  

The Complainant maintains she is was underpaid, that she is required to work longer hours than is permitted, that she is not paid if calls are cancelled, and that changes were made to her terms of employment without any consultation.

The Respondent denied it was in breach of the its obligations with regards to the complaint made.

Summary of Complainant’s Case:

CA-00021007-001 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991               

The Complainant submitted that her contract outlines that her place of work is at various service users’ homes and/or residential care homes where the service users reside. The Complainant maintained that she does not get paid for her travel time between the sites and that she only gets paid for her time at a call location. Visits on site in the morning would be for approximately 1 hour, and during the remained of the day would be for between 30 minutes to an hour.

CA-00021007-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant submitted that her contract of employment states that she is to be available for work for a minimum of 30 hours per week. However, on many occasions she would be required to work a 50-hour week. The Complainant maintained she works from 07:30 hrs until to 22:15 hrs over a 12-day period and receives every second week off.

CA-00021007-003 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991               

The Complainant submitted that if a service user cancels within 24 hours she will get paid for the call. The Complainant maintained that on 25 July 2018 she was rostered for a 5 hour call but that this was cancelled less than one hour before she was due to attend and she was only paid for one hour, not the five hours.

CA-00021007-004 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994      

The Complainant submitted that her contract of employment stated she had a 30 hour a week contract but that the Respondent was applying the 30 hours over a 12-day period and not a one week period. The Complainant submitted that this was a change to her terms and conditions of employment and she was not notified of this change.

She advised that lately her hours have been reduced to less than 30 hours on some weeks. The Complainant contended that the Respondent had recently told her that the 30 hours working contract referred to the 12-day working period and not a 7 day week.

Summary of Respondent’s Case:

Response to CA-00021007-001 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Respondent maintained that when taking up her employment the Complainant was made aware that she was not paid a travel allowance or mileage. The Respondent submitted that the Complainant was provided with and signed a contract of employment which stated her place of work was at various service users’ homes and/or residential care homes where the service users reside.

The Respondent further submitted that that they pay the highest hourly rate possible and this takes into account the fact the Complainant has to travel between her places of work. In addition, the Respondent submitted that the Complainant’s hourly rate of pay has been increased to €12 per hour Monday to Friday, €12.50 per hour for Saturday and €13 per hour for Sunday.

The Respondent maintained that the location of service users is agreed with staff and that locations and that the Complainant was never put under pressure to work in a specific location or f there is too much travel involved.

Response to CA-00021007-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997       

The Respondent maintained that the Complainant has never worked from 7:30 hrs through to 22:15 hrs as alleged. The Respondent stated the Complainant is emailed her rosters which notes all the hours worked by her. A record of the hours she is paid is also emailed to the Complainant on a monthly basis.

The Respondent submitted a record of all the hours worked by the Complainant since she started her employment in December 2017 and contended that the Complainant did not work hours in excess of the obligations under the Organisation of Working Time Act. The Respondent also maintained that the rosters shows that the Complainant had breaks during her working day.

Response to CA-00021007-003 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Respondent maintains the Complainant’s contract does not provide that she will get paid in full if a service user cancels a call. The Respondent submitted that when a call is cancelled they do not get paid but as a good will gesture they paid the Complainant for the first hour of cancelled calls if the call is cancelled within 24 hours. As the vast majority of call are not more than one hour’s duration the Respondent argued that this gesture was generous and recognised the inconvenience caused by late cancellations. With regard to the Complainant submission that she was not paid for the five hour cancellation the Respondent reiterated that it did not get any payment from the service user yet they paid the Complainant for one hour, and this represented a loss to the Respondent.

Response to CA-00021007-004 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994            

The Respondent maintained that the Complainant’s week is over seven days, not twelve days as alleged. The Respondent also advised that the Complainant received an amendment to her contract on 20th March 2018 stating she was being increased to a Grade Two Care and Support Worker and received a higher pay rate, and stated she was to be available for a minimum of 30 hours per week, whereas the original contract was for a minimum of 10 hours per week.

The Respondent submitted that the Complainant did not make herself available for the 30 hours due to changes in her availability. The Respondent submitted emails between itself and the Complainant where it engaged in a consultation with the Complainant in June 2018 when the Complainant was seeking fewer hours work, and where the Complainant stated that the Respondent was really understanding and where the Complainant thanked the Respondent for facilitating her request.

The Respondent further contended that the change in the contract did not disadvantage the Complainant as its main purpose was to notify the Complainant of an increase to her rate of pay.

Findings and Conclusions:

Findings to CA-00021007-001 and CA-00021007-003 Complaints seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991     

The Complainant has submitted that she is not paid for travelling to service user sites and that she is only paid for the time she spends at a service user’s residence.

Section 5 (1) of the Payment of Wags Act 1991 states that an employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

• the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

• 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

• in the case of a deduction, the employee has given his prior consent in writing to it.
  
  

Having reviewed the Complainant’s contract of employment I am satisfied the contract states that the Complainant place of work will be at various service users’ homes and/or residential care homes, and that her pay is calculated on the days and time of work. The contract of employment does not provide for payment for the Complainant when she travels from one place of work to another.

Based on this I find there is no contractual entitlement for the Complainant to receive payment for any travel to her places of work. I therefore do not find that the Respondent is in breach of it ‘s obligations under S 5 of the Act.

I also considered the complaint that the Complainant did not get paid for a full five hours when a call was cancelled within 24 hours. As she was only paid for one hour she maintained the Respondent unlawfully deducted 4 hours pay for her wages.

Having reviewed the Complainant contract I employment it is clear that her payment is dependent on the days and times of work. The contract also states that in the event that the Complainant is not required to work during a particular week she will be compensated by the Respondent who will pay her the lesser of 15 hours or 25 percent of her weekly contracted hours. There is no reference in the contract of employment that payment will be made in full, or at all, if a call is cancelled on any particular day within 24 hours’ notice. It is acknowledged tha the Respondent paid the Complainant for one hour due to the cancellation.

Having reviewed the evidence, I do not find the Complainant had an entitlement to be paid for work not done on 25th July 2018. I therefore do not find the Respondent is in breach of S 5 of the Act.

Findings CA-00021007-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997                         

In accordance with Section 12 of the Organisation of Working Time Act 1997, (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes; (2) An employer shall not require an employee to work for a period of more than 6hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

In accordance with Section 15 of the Organisation of Working Time Act, 1997,an employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, calculated over a 4 months period.

Having reviewed the roster and hours worked records of the Complainant for the six months prior to making her complaint I find that she was rostered on days to start at 07:30 hours, and was also rostered to finish her last call at 22:15 hrs. However, the roster shows that the Complainant would usually have had sufficient breaks between her calls during the day which provided her with the opportunity to take her rests and intervals at work breaks in accordance with the obligations under the Act.

A review of the rosters also records the Complaint working some weeks in excess of 50 hours. However, when her working hours over the last six months are averaged over a four-month period I do not find her average working hours are in excess of a 48 hour week.

Having considered the evidence presented I do not find the Respondent is in breach if its obligations under the Organisation of Working Time Act.

Findings to CA-00021007-004 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994             

Section 5(1) of the Terms of Employment (Information) Act, 1994 requires that whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3…, 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 1 month after the change takes effect.

Having reviewed the evidence I find that on 20th March 2018 the Respondent notified the Complainant in writing of an increase in her rate of pay and of a change of her on-call hours per week from 10 to 30 hours. This letter referred to a meeting that took place between the parties on 16th March 2018.

Evidence provided also demonstrates that correspondence was exchanged between the parties in June 2018 and where the Respondent facilitated a reduction in working hours of the Complainant. This correspondence represents a very cordial exchange between the parties where both sides appeared to be appreciative of each other.

Having reviewed the evidence I am satisfied the Complainant was notified in writing of the nature of a change in her terms of employment on 20th March 2018 which she received some four days after a supervision meeting. I therefore do not find the Respondent is in breach of ita obligations under section 5 of the Act.

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.

Decision: CA-00021007-001 and CA-00021007-003 Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to a contravention under Section 5 of that Act.

As I have not found the Respondent is in breach of its obligations under S 5 of the Act I decide the complaints under the Payment of Wages Act are not well founded.

Decision: CA-00021007-002Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997                         

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to a contravention under Sections 6(2), sections 11 to 23, and section 26of that Act.

As I have not found the Respondent is in breach of the acts in the areas complained of by the Complainant I decide the complaint is not well founded.

Decision: CA-00021007-004Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994                  

Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a decision in relation to a contravention under Section 5 of that Act.

As I have not found the Respondent is in breach of its obligations under section 5 of the Act I decide the complaint is not well founded.

Dated:   16th May 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words:  Payment of Wages Act ,1991- non-payment for travel to work sites, non-payment for cancellation of work; Organisation of Working Time- Act 1997 breaks and weekly working hours; Terms of Employment (Information) Act, 1994- notification of a change in terms of employment.