Complainant

Respondent

Anonymised Parties

Care Support Worker

Support Services Provider

Representatives

SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00027852-001

18/04/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00027852-002

18/04/2019

The Complainant has been employed by the Respondent as a Care Support Worker since February 2016.   She has submitted complaints under the Payment of Wages Act, 1991 and the Industrial Relations Act, 1969 in respect of her employment with the Respondent.

The Complainant submits that she delayed submitting her complaint to the WRC until 18 April 2019 in order to give the Respondent an opportunity to resolve the matter at a local level.

The Complainant is seeking that the Adjudication Officer extend the cognisable period in relation to the complaint to encompass the twelve month period from 19th April 2018 to 18th April 2019 (the date of submission of the complaint form to the WRC).

The Respondent objects to the application for an extension to the cognisable period and points outs that the Complainant has been represented by SIPTU since mid-February 2018.

The time limits for submitting claims to the Workplace Relations Commission are set out in Section 41 of the Workplace Relations Act 2015 which provides that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

The herein complaint was submitted to the Workplace Relations Commission on 18th April 2019. In accordance with Section 41 (6) of the Workplace Relations Act 2018, the cognisable period for the herein complaint is six months from the date of the referral of the complaint which gives a cognisable period from 19th October 2018 to 18th April 2019.

The first matter I must decide is if reasonable cause has been shown to empower me to extend the cognisable period for this complaint as requested by the Complainant.

In making my decision, I must take account of both the relevant legislation and the legal precedent in this area.

The Complainant has submitted that she did not submit a complaint to the WRC until she had exhausted all efforts to give the Respondent an opportunity to resolve the matter at a local level.

Section 41(8) of the Workplace Relations Act 2015 provides that if a complaint is not submitted within six months of the alleged contravention, an extension may be granted by an Adjudication Officer up to a maximum time limit of 12 months where, in the opinion of the Adjudication Officer, the Complainant has demonstrated reasonable cause for the delay in accordance with the provisions:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Labour Court has set out the test inCementation Skanska v Carroll, DWT 38/2003 as follows; 

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

Therefore, in order to achieve an extension to the time limit the Complainant must be able to show that there are reasons which both explain the delay and afford an excuse for the delay.

In this regard, I note the Labour Court Determination in Brothers of Charity Services Galway v Ciaran O Toole, EDA177 where the Labour Court held that:

“The Court cannot accept that deploying the Respondent’s internal procedures operates to prevent the Complainant from initiating the within complaint within the statutory time limit provided under the Act.”

Whilst I accept that the Labour Court determination referenced above refers to the Employment Equality Acts, I am of the view that the findings of the Court are applicable to the herein case.

At the hearing, the Complainant confirmed that she has been represented by SIPTU since mid-February 2018. I note that the Complainant’s representative is an experienced union official who has extensive experience of dealing with the WRC and its complaint submission procedures.

Accordingly, I find that no reasonable cause was shown to empower me to extend the cognisable period in relation to the herein case and, therefore, I find that the appropriate cognisable period is 19th October 2018 to 18th April 2019.

The Complainant submits as follows:

As per the Complainant’s original terms and conditions from 2016 her normal working hours were 30 hours per week and she was paid a fixed amount for her work.

The Complainant’s terms and conditions changed in November 2017 from 30 hours per week to 20 hours per week but that was the only change to her original terms and conditions. There were no further changes to her contract since.

Initially, the Complainant was assigned to work in [Location 1] and worked there on a continuous basis until May 2016. At that point the Complainant was, upon her request, removed from the assignment due to health and safety reasons. Subsequently, from May 2016 albeit for a short period of time, she was given a relief work contract.

Such relief contracts are technically zero hours contracts, where an employee cannot expect to be provided with certain amount of work, and job availability depends on various circumstances. It was not what the Complainant desired, thus shortly she requested a change and was given a new contract, a permanent one with 20 hours a week. She was assigned to work in the Dublin area.

At the end of June 2018, following a number of grievances related to inappropriate behaviour of the service user the Complainant looked after, the Complainant was relocated to a different place on a temporary basis. Thus, the Respondent started to look for a new permanent location for her. In the beginning of July 2018, the Complainant was given two shifts for the same day from the Respondent - one in [Location 2] and second in [Location 3]. The Complainant chose the [Location 2] one.

The Complainant submits that these two shifts were assigned to her by two different managers without proper communication between them and the Complainant was unaware of this.

When the Complainant declined to attend the [Location 3] assignment and chose the [Location 2] one, the Complainant communicated her decision to the manager of the [Location 3] assignment, yet the Complainant was expected to attend work there on the same date and time as [Location 2]. The Complainant established the fact that while she was rostered to work in [Location 2], she was never rostered to work in [Location 3].

Nevertheless, the Respondent initiated an investigation into the Complainant’s failure to attend the [Location 3] assignment.

The entire investigation process took two months. The investigator concluded that there was no fault on the Complainant’s side, and highlighted issues with the Respondent’s internal communication. The investigator recommended certain actions to be undertaken by the Respondent to improve communication.

Unfortunately, some time after the investigation had been initiated, the Complainant started to experience issues with working hours available for her, namely that the Respondent failed to provide or offer her her contractual hours of work despite the Complainant’s contract of employment which states that she is entitled to 20 hours work a week. The Complainant was available and ready to carry out her duties.   The situation continued between September 2018 and 18th of April 2019. Between September 2018 and April 2019 the Complainant was not suspended without pay, nor laid off nor put on short time.

From time to time the Complainant was provided with a number of locations available on a short time basis. On many occasion when the Complainant replied to confirm her availability, there was no response from the Respondent. At other times, offers of work were given to her on at extremely short notice.

The Complainant sought a fixed place where she could work her 20 hours a week, not random places with short term assignments. It seems that when the investigation was initiated, the Respondent started to treat the Complainant as a relief employee, contrary to her terms and conditions of employment.

In October 2018 the Complainant started to attend college but she still was able to do 20 hours a week. The Complainant informed her employer about her college timetable well in advance, but again, there was no genuine attempt to find her a fixed place to work.

The Complainant then sought help from her Trade Union who sought to resolve the matter at a local level. However, there was long delays in addressing the Complainant’s concerns and a lack or a very poor level of communication and all agreed meetings were cancelled by the Respondent. Finally, the Complainant was extremely frustrated and a complaint was lodged to the WRC.

Only when this had been done, did the Respondent organise a meeting with the Complainant to address her concerns. The Complainant was offered a few permanent locations from a number of options to choose from but the Respondent rejected the Complainant’s claim for payment for outstanding hours of work.

The Complainant contends that she had an entitlement to 20 hours work per week as per her contract of employment and that the company failed to adhere to her contract of employment. The Complainant is not seeking anything else other than payment for her basic working hours.

Given the above, the Complainant is seeking to be paid her outstanding wages for the weeks between September 2018 and April 2019.   The Complainant is seeking payment of €3,830.86 for 271 hours at a rate of €14.11 per hour.

The Respondent submits as follows:

The Complainant did not have a contract for a set number of hours. The Complainant was offered a variety of shifts in line with operational requirements and the needs of the service as per her relief contract.   There was no obligation on the Complainant’s part to accept any shifts which were offered to her.

In this regard, the Complainant did not accept the alternative shifts which were offered in the email of 18th April 2018 accepting the Complainant’s request to change to a relief contract. The Complainant’s non-acceptance of the work that was offered is not consistent with her statement that she was “ready and available”.

Regardless of whatever type of contract she had at various stages, the Complainant is aware that funding and paid hours are based on support hours supplied to service users.   If the Complainant had any expectation that she was actually entitled to money for work she did not perform on 1st August 2018, it would be expected for her to have raised this as an issue in August 2018. The assertion was not raised until the Complainant completed her complaint form on 18th April 2019.

The Complainant let it be known that she would accept a 20 hour contract if the offer suited her circumstances. The Respondent needed hours filled, and at times there were over 480 vacant hours in the Respondent’s service in Dublin. However, the Complainant advised she had restricted availability to a Monday, a Saturday and an occasional Sunday, and needed to be sure she could get to work by public transport. The Complainant’s limited availability could be accommodated on a relief contract where there was no obligation to offer the Complainant shifts; and no obligation on the Complainant's part to accept any shifts that were offered to her. It is much more difficult to accommodate niche availability, if it is to be aligned to a specific individual service user's needs, and to the specific funding provided solely for the support hours required by that service user.

The Respondent submits that there is no obligation to provide the Complainant with work and no obligation for the Complainant to accept any shifts offered.   Neither was there any obligation to pay the Complainant for hours when she did not accept shifts and and/or did not work.

The Complainant has submitted a complaint under the Payment of Wages Act, 1991. My investigation of this complaint will be confined to the provisions of that Act.

Relevant Legislation

The relevant sections of the Payment of Wages Act are sections 5(1) which prohibits an employer from making a deduction from the wages of an employee unless certain conditions are fulfilled and section 5(6) which provides that the non-payment of wages which are properly payable to an employee by an employer shall be treated as a deduction unless it was due to a computational error. I have included the relevant sections of the Act below.

Section 5 (1) of the Payment of Wages Act, 1991 provides that –

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

( c) in the case of a deduction, the employee has given his prior consent in writing to it.”

Section 5(6) of the Act provides that where –

“( a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

( b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employerfrom the wages of the employee on the occasion.”

Findings

The first matter for me to establish is what is the amount of wages that were properly payable to the Complainant during the cognisable period. In general, the amount of wages which are properly payable to an individual is directly linked to the number of hours for which they are contracted to work for an employer. I will, therefore, examine the provisions of the Complainant’s contracts insofar as they relate to contracted hours.

The Complainant was initially issued with a part-time contract with an effective date of 5th February 2016 which stipulated a normal working week of 30 hours. Later in the same year, the Complainant was issued with a fixed-term relief panel contract effective from 16th May 2016 which did not stipulate a set number of working hours per week.   On 11th October 2016, the Complainant was issued with a permanent relief panel contract which also did not stipulate a set number of working hours per week.

In an addendum to the Complainant’s contract, effective from 2nd October 2017, and signed by both parties, the contract was changed to a permanent 20 hour per week contract.

On 17th April 2018, as a result of difficulties with the service user to whom she had been assigned, the Complainant sent an email to her supervisor seeking to suspend her contract hours and go on relief until the Respondent was able to place her in a suitable service.

I note the Respondent’s contention that, arising from her emailed request of 17th April 2018 to go on relief, the Complainant no longer had a contract for a set number of hours.

In this regard, I note that the Complainant’s supervisor emailed her on 27th April 2018 asking the Complainant if she “can send me an email confirming that you wish to return to a relief contract effective 14/5/18”.

The Complainant responded later that day to say “Regarding that am still thinking about it but I will communicate to you before that date”.

In an email dated 14th May 2018, the Complainant’s supervisor confirmed that the Complainant would no longer be on a rolling roster but would continue to be offered relief.

The Complainant responded by email dated 16th May 2018. In that email the Complainant referred to discussions that she had had with her supervisor regarding her “contract hours”. Elsewhere in the email the Complainant wrote “When I discussed with you, you promised to always send rotas to my email so that I can always pick shifts that will cover my contract hours”.

It is my view that the Complainant’s email of 16th May 2018 does not indicate that she wished to return to a relief contract with no set number of working hours per week.

If this was the Respondent’s understanding of the Complainant’s position, I would expect them to have issued an addendum to the contract, as they had done in the past, clarifying the Complainant’s contractual position. This was not done. In fact, in an email from the Respondent’s Service Manager to the Complainant dated 20th December 2018, the Service Manager wrote “You currently hold a 20 hour permanent contract with [the Respondent].

In light of all of above, I find that, with effect from 2nd October 2017, the Complainant’s contracted position with the Respondent was that of a permanent employee on a 20 hour per week contract and that her status did not change since that date.

I find that, by virtue of the Complainant’s permanent 20 hour contract with the Respondent, the weekly wages that were properly payable to her during the cognisable period were wages for 20 hours per week at a rate of €14.11 per hour.

In order for the Respondent to pay the Complainant a lesser amount, the Respondent would be required to comply with section 5(1) of the Act, which provides that a deduction is only permissible where it is authorised by a term in the Complainant’s contract or the Complainant has given her prior consent in writing to the deduction. I find that neither of these conditions pertain in this case and, therefore, the weekly wages that were properly payable to the Complainant are wages for twenty hours work per week at a rate of €14.11 per hour in line with the addendum to her contract which was effective from 2nd October 2017.

I find, therefore, that this complaint is well founded and that the Respondent made an unauthorised deduction from the wages of the Complainant.

However, at the hearing it was confirmed that, on a number of occasions, the Complainant declined to accept the hours that were offered to her for personal reasons. No detailed account was offered at the hearing of the hours offered and either accepted or declined by the Complainant.

I am of the view that I cannot penalise the Respondent for the times when it offered hours to the Complainant which were declined and I have reflected this when calculating the amount of redress to be paid.

I find that this complaint is well founded and I direct the Respondent to pay the Complainant redress of €2,500.

The Complainant submits that the Respondent not only failed to provide her with her contractual hours of work, but failed to maintain proper communications as recommended by the investigation report dated 11th of October 2018 and failed to, promptly and without undue delay, investigate and address her grievance in relation to the lack of working hours.

Furthermore, the Complainant submits that the Respondent failed to respect her contractual terms of employment, and instead, as it seems, treated her as a relief employee without her consent between July 2018 and May 2019. This occurred despite it having been confirmed to the Complainant that she is a permanent employee on a 20 hours per week contract.

The Respondent submits as follows:

The Complainant did not have a contract for a set number of hours. The Complainant was offered a variety of shifts in line with operational requirements and the needs of the service as per her relief contract.   There was no obligation on the Complainant’s part to accept any shifts which were offered to her.

In this regard, the Complainant did not accept the alternative shifts which were offered in the email of 18th April 2018 accepting the Complainant’s request to change to a relief contract. The Complainant’s non-acceptance of the work that was offered is not consistent with her statement that she was “ready and available”.

Regardless of whatever type of contract she had at various stages, the Complainant is aware that funding and paid hours are based on support hours supplied to service users.   If the Complainant had any expectation that she was actually entitled to money for work she did not perform on 1st August 2018, it would be expected for her to have raised this as an issue in August 2018. The assertion was not raised until the Complainant completed her complaint form on 18th April 2019.

The Complainant let it be known that she would accept a 20-hour contract if the offer suited her circumstances. The Respondent needed hours filled, and at times there were over 480 vacant hours in the Respondent’s service in Dublin. However, the Complainant advised she had restricted availability to a Monday, a Saturday and an occasional Sunday, and needed to be sure she could get to work by public transport. The Complainant’s limited availability could be accommodated on a relief contract where there was no obligation to offer the Complainant shifts; and no obligation on the Complainant's part to accept any shifts that were offered to her. It is much more difficult to accommodate niche availability, if it is to be aligned to a specific individual service user's needs, and to the specific funding provided solely for the support hours required by that service user.

There were times when the Complainant took time to respond - up to 27 days on one occasion. There were also times when the Respondent took time to respond- up to 28 days on one occasion. The main impediment was matching the Complainant's niche availability. When roles were offered in services in [Location 4]and [Location 5], the Complainant advised she did not want to work in these services. The Complainant was inducted in one service that could accommodate her niche availability; but then chose to revert to relief work, as she belatedly realised her commute took her via a toll. The Complainant could not avail of available hours in [Location 6], as she did not hold an appropriate driving licence. When the Respondent subsequently met the Complainant with her SIPTU representative, it had over 300 unfilled hours in the Community Services. The Respondent was able to match the Complainant's requirements, but the Complainant could not accept a role in [Location 7] as her own personal circumstances changed. There was no obligation on the Complainant's part to accept any shifts that were offered to her.

Although the Respondent was/is unable to fill vacancies, and regularly has to pay agency staff, no job offers were pressed on the Complainant as there was no mutuality of any obligation. However, if the Complainant feels an obligation should be introduced — then that would have to be mutual. Any obligation to pay must be matched by the corollary obligation to work. If an obligation to pay was introduced — with penalties for omissions; then it would be met by the corollary obligation to work — with penalties for omissions. Any right brings an inescapable obligation. In this case, if any mutuality of obligation was to be introduced, it would apply to the Complainant to the same extent as it would apply to the Respondent.

Some vacancies were filled, and some new positions have become available. With a new service coming online, the current vacancies of over 300 hours will increase to over 400 hours. The Respondent has previously been able to offer the Complainant hours, and expects that it will be able to do so again, when the Complainant's personal circumstances allow her to resume work.

The Respondent asks the Adjudication Officer to find that there was no obligation to provide the Complainant with work (and no obligation for the Complainant to accept any shifts offered). Neither was there any obligation to pay the Complainant for hours when she did not accept shifts, and/or did not work.

There are two strands to the Complainants complaint under the Industrial Relations Acts – one strand relates to the Complainant’s contract of work with particular emphasis on her status and her contractual hours of work. The other strand relates to alleged failure by the Respondent to maintain proper communication.

With regard to the Complainant’s issues with her contract, I am of the view that these have been investigated and addressed in my findings in relation to her referral above under the Payment of Wages Act. Furthermore, I note that the parties have engaged in discussions around this matter prior to the hearing and that the issues has been resolved. I find, therefore, that this element of the complaint is not well founded.

With regard to the Complainant’s issues around communication, I find that both sides have to accept responsibility for the lack of communication and the resultant delays. Accordingly, I find that this element of the complaint is also not well founded.

I find that the complaint is not well founded.

Payment of wages – non-payment for contracted hours – industrial relations referral