Complainant

Respondent

Anonymised Parties

An agency worker

An employment agency

Representatives

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-00036059-001

07/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00036059-002

07/05/2020

The complainant was employed as a temporary agency worker with the respondent.  She commenced employment on 02/07/2019.  She was assigned to a clerical officer role with a public service organisation.  Her hourly rate of pay was €19.51 per hour.  Following an audit by the public organisation it was discovered that she was given credit for private sector work and was therefore on an incorrect hourly rate.  The respondent was advised that the correct hourly rate should be €12.43 per hour and the complainant was advised of this.  On being advised of this the complainant resigned her position with immediate effect.

The complainant was employed with the respondent and was assigned to a large pubic service organisation.  She commenced employment on 02/07/2021.  Her rate of pay was €19.51.  On 13/11/2019 she received a call from the respondent’s representative who informed her that her hourly rate would change to €12.43.  She was also told that she would have to pay back the difference between the two rates from the date of commencement.  When she queried the reason for this she was told that the organisation she was assigned to did not recognise private sector work for pay purposes.  The complainant was very happy working in the organisation she was assigned to and the respondent’s representative that they could not do anything about it as it was up to the organisation she was assigned which determines the rate of pay.  The complainant believes that she had no option but to resign as the respondent would not reinstate the rate of €19.51 and was clear that if she wanted to keep her job she had to pay back the money.

The respondent is an agency providing healthcare workers.  The complainant was employed from 02/07/2021 and was subject to the standard terms of engagement for temporary workers.  The rate of pay for the complainant was determined by the client organisation.  This rate varies from organisation to organisation.  She was initially paid €19.15 per hour and following an audit by the client organisation it was discovered that the complainant was paid incorrectly due to an error in calculating “relevant experience” for pay purposes.  The complainant was notified that her pay rate would change to €12.43.  The rationale for this change was explained to the complainant by e mail.  The respondent denies that it required the complaint to pay back any money as a result of this error.  The complainant resigned with immediate effect and gave notice of this to the client organisation and not to the respondent.  It is the respondent’s position that the reduction in the hourly rate was in line with the terms of engagement in relation to pay and in particular the clause which states: “The temporary worker acknowledges that the terms and conditions (including payrate) can vary depending on the client and they can ask the employment business to verify the terms and conditions for each client both verbally and in writing before each new assignment commences.” The rate of pay is determined by the client organisation and the respondent has to comply with any such determination.

There is no disagreement in relation to the facts of this case.  The complainant was assigned to an organisation which had agreed a rate of pay and then following an audit this hourly rate was reduced by €6.72.  There is disagreement in relation to how she was notified of this change and if she was required to pay back any or all of the money which was paid at a higher rate.

CA-00036059-01:  The complainant feels that she is entitled to maintain the rate of pay that was agreed between the respondent and its client organisation while the respondent submits that it has no option but to pay the rate determined by the client organisation. It is for that reason that the complainant’s contract does not specify a rate of pay but notes that the rate of pay is conditional on the rates notified to the respondent by the relevant client.  The contract also provides that the “the hourly rate may be subject to change (upward or downward) by…” the respondent.  It is clear the rate changed significantly, and the complainant was informed of this as soon as it became known to the respondent. The rationale was explained, and the respondent confirmed details of this in an e mail dated 13/11/2019 and subsequently on 22/11/2019.  The complainant disputes this and outlines that there was difficulty accessing these mails.   I am satisfied that these e mails were issued.  In that context I do not find that there was a breach of the Terms of Employment (information) Act 1994 and therefore this complaint is not well founded.

CA-00036059-002:  The complainant submits that because of the drastic reduction in her hourly rate along with the provision that she pays back the money which the respondent claims she was overpaid she was left with no option but to resign her position with immediate effect.  At the hearing it was confirmed on behalf of the complainant that she did not raise any formal grievance in relation to this matter.  It was also confirmed that there was no engagement by the complainant with the respondent in relation to seeking reassignment to another role.

When an employee fails to utilise the company’s grievance procedure there is a very high bar for the employee to show why they did not do so.  While an employee may have a perception that this might be unsuccessful the onus is on the employee to prove that this would be the case.  The employer should be given an opportunity to reply to a grievance.

In this case the complainant confirms that she did not use the respondent’s grievance procedure.  The respondent also confirms that no grievance was submitted.  The respondent also notes that they became aware that the complainant had resigned was when advised of this by the client organisation.

For the reasons outlined I am recommending that this complaint is not well founded.

CA-00036059-01: I find that this complaint is not well founded.

CA-00036059-02: Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to this dispute.

I recommend that this complaint is not well founded.

Rate of pay.  Constructive dismissal.