ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00005028
Parties:
| Complainant | Respondent |
Anonymised Parties | A Social Care Worker | A Social Care Organisation |
Representatives | Self-Represented | Chief Executive and Managers |
Complaint(s):
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-00007135-001 | 21/09/2016 |
Date of Adjudication Hearing: 16/10/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 6 of the Payment of Wages Act, 1991following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Employment was a Section 39 Health Care Agency. The Complainant worked variable hours but averaged between 25 to 30 hours per week. The Employment commenced on the 3rd February 2015 and ended on the 20th April 2016. A claim was lodged with the WRC on the 21st September 2016. The claim concerned firstly Alleged Non-Payment of Public Holidays and a dispute regarding “Sleep Over” payments. A first hearing on the claim was held on the 18th May 2017. The Complaint was adjourned on that date as major National level negotiations were then beginning regarding the position of Section 39 Agencies. A number of hearings were held in the period late 2017 to late 2019. National Talks, concluded in August 2018, had resolved or arrived at a compromise on the Sleepover issue. The Public Holidays in dispute here were pre-August 2018. Despite further efforts at a local settlement between the Parties it became clear in early 2019 that this was not possible due to HSE funding constraints. Accordingly, a formal Adjudication Decision was required on the Public Holiday point. Covid 19 restrictions gave rise to a further delay. |
1: Summary of Complainant’s Case:
The Complainant made two linked complaints – 1. An issue with Sleepover pay during her period of employment from February 2015 to April 2016. She alleged that the correct rate had not been paid to her during this period. She acknowledged that she had received a HSE funded Top Up payment in December 2018 but felt that the basis of the calculation of the base rate was disadvantageous to her. 2. As regards the Public Holidays she alleged that she was due payment for 9 Public Holidays in the period of her employment. The Respondent only paid for Public Holidays that were actually physically worked on. If an employee was rostered OFF duty, he/she received no payment. This was clearly in breach of the Working Time legislation as regards an employee doing the hours that the Complainant worked. |
2: Summary of Respondent’s Case:
1. Sleepover Pay The National talks which culminated in the National Agreement of August 2018 came up with a compromise on Sleepovers. The HSE will not fund any additional payments to Section 39 Agencies over and above the Agreement. The Complainant benefited from the Agreement, maybe not as much as she might have liked but realistically the issue in now closed unless the majority Trade Unions seek to reopen the situation. 2. Public Holidays. The Respondents accepted in May 2018 that there was an issue with 9 Public Holidays. However, this Public Holiday issue was not resolved in the National talks as regards the specific Employer Agency in this case. There was a tacit acceptance from the Respondent that the Complainant had a case, but it had proved impossible to secure central /HSE funding to resolve the issue.
An important consideration for the Respondent was the fact that if the Complainant was successful in her claim there would, almost automatically, be very significant repercussive claims from all other employees in the Agency concerned. This major financial situation was beyond the means of the Agency to finance and would have to be addressed by securing additional HSE funding. |
3: Findings and Conclusions:
3:1 – The Applicable Law. This case was taken under the Payment of Wages Act,1991. Section 6(1) is the applicable Section as regards Adjudication Officer decisions. Complaint to adjudication officer under section 41 of Workplace Relations Act 2015 6 6. (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding — ( a ) the net amount of the wages (after the making of any lawful deduction therefrom) that — (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment,
3:2 Time Limits
In addition, the question of relevant Time Limits also requires careful consideration.
Sections 41 (6) & (8) of the Workplace Relations Act,2015 are the relevant Sections.
(6) 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. (8) 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.
Legal precedents covering the correct interpretation of this area are primarily HSE v McDermott 2013 334 MCA / [2014] IEHC 331 and Royal Liver v Macken - Unreported, November 15, 2002.Record No: 2001 /490Sp. The question of time limits is considered in detail in both cases. In summary the position is that an Adjudication Officer can only consider contraventions occurring in the period of six months prior to the date of the referral of the complaint – in this case the 21st of September 2016 counting back to the 21st March 2016. 3:3 Public Holidays therefore due for consideration It was noted that there appeared to be a willingness to reach an accommodation on the 9 Bank Holidays, but Budget constraints precluded this. As the complaint was under Section 6 of the Payment of Wages Act,1991 the only eligible Bank holiday (applying the six months rule) must be Easter Monday – the 28/03/ 2016. Bank Holidays prior to this date are, unfortunately for the Complainant, out of jurisdiction. The Employment ended on the 20th April 2016. 3:4 Legal Conclusion / Bank Holidays The only Bank Holiday applicable under the Payment of Wages Act,1991 is Easter Monday 2016 and I direct that it be paid on the basis of 8 hours at the weekly rate of €448:00 /30 = €14.93 x 8 = €119.47. Rates as quoted on the Complaint form. 3:5 Sleepovers The issue with Sleepovers and the correct rate of pay for same is an Industrial Relations issue. The National level talks addressed this issue in the August 2018 Agreement. Accordingly, I make no ruling under the Payment of Wages Act,1991 on this Sleepover issue as I deem it be out of jurisdiction. |
4: Decision:
Section 41 of the Workplace Relations Act 2015 and Section 6 of the Payment of Wages Act,1991 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Under Section 6 of the Payment of Wages Act,1991 I rule that the claim for arrears of Public Holidays is well founded and I direct that the value of One Public Holiday = €119.47 (at rates on the claim form) be paid to the Complainant.
Dated: 14TH September 2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Public Holidays, Time Limits and Payment of Wages Act,1991 |