Complainant

Respondent

Anonymised Parties

A Nurse

A Nursing Home

Representatives

Appeared in Person

Terence O Sullivan, Solicitor.

Act

Complaint Reference No.

Date of Receipt

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

CA-00023607-001

28/11/2018

The Complainant is a Romanian Staff Nurse who worked for a 3-month period in a Nursing Home. This claim arose when the payment during the notice period was disputed on termination of employment.

The Complainant represented her own case, while the Nursing Home was represented by Terence O Sullivan, Solicitor.

The Complainant came to work for the Respondent via an Agency on 1 August 2018. She worked a 30-hour week in return for €1,380 gross per fortnight. The initial contract stated that the complainant would work for three months until 31 October 2018. On 5 October 2018, the Owner of the Nursing Home asked her if she would like to extend her contract there?

The Complainant agreed to this providing that the contract would be permanent and have a 1 months’ notice clause actionable by either party. The Respondent agreed to a 6-month extension as the Homes future was uncertain. The Complainant did not get a sense of certainty at the home as the contract was not issued.

The Complainant submitted that on 18 or 19 November 2018, the Agency called her and enquired whether she would like to attend an interview at another Hospital. She was successful at interview and approached the owner to give her one months’ notice of departure as agreed. She was requested to formalise the notice in writing, which she did.

She tendered the following letter dated 21 November 2018

“This letter is to notify you that I am resigning from X Nursing Home as a staff nurse, and will take effect from the 24 December 2018, my last day at work will be 23 December 2018. It was really a pleasure working with you and the whole team at X Nursing Home and I wish you all the best in future”

It was her evidence that the Owner accepted the letter. On 23 November 2018, at the end of her shift, the Owner approached the complainant and handed her a final pay cheque and told her that the P45 would follow from the accountant. The Complainant submitted that she tried to challenge the owner to honour the agreement for 4 weeks’ notice pay but she was not heard on this point. She left without this payment. Her new work commenced on 3 December 2018 and she did not claim social welfare for the intervening period.

The Complainant sought payment of 4 weeks pay and stressed that the owner had reneged on the verbal agreement entered in early October.

The Complainant became distressed when the Respondent raised the issue surrounding the missing documents and registered her opposition to these statements.

The Respondent rejected the claim outright. The Respondents Solicitor outlined that the Nursing Home had expended €2,000 in hiring the complainant via a Nursing agency. The Nursing Home hosted 7 employees. This Agency hire covered the period August 1 – October 31, 2018. There was no agreement to employ the complainant after this date and the Respondent wholly disputed any subsequent agreement to pay a four week notice period.

The Complainant received 8 cheques during her employment, the final payment amounted to €1,443.63 inclusive of annual leave.

The Respondent submitted that they were aggrieved as it was their understanding that the complainant had taken her pay records and documentation for HIQA with her on her departure. The Respondent also raised the issue that the complainant had had recourse to the WRC too quickly as she had not utilised the Home Grievance procedure or claimed unemployment benefit to mitigate her loss.

The Respondent denied that the conversation on notification of leaving as submitted by the complainant happened. The Complainants departure had left the staff short in the run up to Christmas.

The Respondent submitted that his client was compromised in answering the case due to the shortfall in employment records taken by the Complainant on her departure. He also mentioned that his client had a hearing impairment and he had been instructed to represent the case. He confirmed that she understood the proceedings.

I have considered the facts as presented by both parties in this case. I was struck that the employment relationship had thrived during the first part of the employment only to end in a disagreement surrounding both parties perceptions of a notice period. This was regrettable. I reviewed the primary contract and noted that a notice requirement was not outlined in the document. This may have been an underlying contributory factor in the eventual conflicting views. The Complainant told the hearing that she had been in Ireland for 9 years and I can only assume that she had an awareness of the statutory minimum notice framework i.e. post 13 weeks of employment.

There was a clear disagreement on a conversation between the parties which was purported to have taken place on 21 November. The Complainant reflected that she was requested to put her notice in writing on this day and she exhibited a hand-written copy of same. The Respondent denied the conversation occurred and rebutted having received a letter outlining notice.

For my part, I found the complainant to be a very cogent witness and accept that she had negotiated a new working arrangement post expiration of her primary contract. She was very clear of several negotiated conditions on extending her tenure at the Nursing Home, the notice was just one and her account of her revised working hours was clear. She was very clear on her recollection of the conversation surrounding her notification of notice.

The respondent, on the other hand seemed reticent in relation to this detail. On balance I prefer the complainants account of events. I am strengthened in that view by the Nursing Homes lack of circulation of her rostered hours for week commencing November 26, 2018. The Nursing Home clearly accepted that the complainant was leaving employment and ought to have followed some protocol to that effect. I accept that the complainant received all her wages and outstanding annual leave. I am not satisfied that the parties engaged in any meaningful way in relation to the notice period. I agree with the Respondent that the referral to the WRC was premature and by-passed local dispute resolution mechanisms. However, the employment relationship has now firmly concluded, and I must press on with my findings on the claim.

I accept the presence of the letter dated 21 November and I am mindful that the complainant began new work on December 3, 2018. The period where she was out of work was November 24 to December 2 3018. This is a period of 9 calendar days. The text of the letter conveyed the complainant availability to December 24 and this was curtailed by the Respondent.

This claim is advanced under the Payment of Wages Act 1991 where Section 5(1) prohibits illegal deductions in wages save for three approved exceptions, none of which are relevant here. I find that the Respondent brought the complainants employment to a premature end and disregarded the definition of wages contained in Section 1 of the Act.

Section 1 (b) any sum payable to the employee upon the termination by the employer of her contract of employment without her having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

On November 23, 2018 the complainant had accumulated a statutory entitlement to one weeks’ notice and the failure by the respondent to recognise and pay this notice period amounts to a breach of Section 5(6) of the Act, where notice was properly payable.

I have considered whether the letter of November 21 reflected an implied term in the contract of employment? I find that I cannot recommend that the complainant receives one months pay as she did not work at the home after November 23 and wages were therefore not properly payable outside the statutory notice period. Had she continued to work there, I would have viewed things differently.

I have upheld the complaint in part.

I would like to comment on the unease between the parties at the end of the hearing. The Respondent had submitted that the complainant had taken employment records from the home. While given an opportunity to pose questions to the respondent on this point, the complainant did not avail of this opportunity. When the Respondent later re-iterated the charge, the complainant became angry and informed the Respondent that she intended to take legal advice on the unfounded allegations.

I explained that I was working from the records submitted and I did not require anything else. I have placed no weighting on the Respondent allegations in this regard.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act, 1991 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found the claim partly well founded and I award the complainant €897 in compensation for the breach of Section 5 of the Act, in lieu of notice, subject to statutory deductions. If it is possible for the complainant to make application for job seekers benefit for the period of enforced unemployment , the Respondent should co operate with such an application .

I advise the Respondent to consider the inclusion of notice period in all present and future contracts of employment.

Payment of Notice Period on termination of contract of employment.