FULL RECOMMENDATION
PARTIES : THE IRISH WHEELCHAIR ASSOCIATION DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00028807, CA-00038727-006.
In this Determination the parties are referred to as they were at first instance. Hence the Irish Wheelchair Association is referred to as ‘the Respondent’ and Ms Hoyne as ‘the Complainant’. The complaint was lodged with the WRC on the 15thJune 2020 and therefore the cognisable period as defined by the Act is the 16thDecember 2019 to 15thJune 2020. Background The Complainant works for the Irish Wheelchair Association which operates in the Disability sector and is partly funded by the HSE. Like other organisations in this and related sectors there is a requirement for “sleepover.” It has been accepted since Labour Court Recommendation CD/14/266 that all sleep over hours count as working time. Within a sleepover shift the hours from midnight to eight were traditionally compensated for in the form of a lump sum (in this case €76) as the Worker could normally sleep during those hours. If the worker was disturbed from their sleep during these hours, they would be paid the normal hourly rate or some other agreed rate for the hours they were awake and working. Following on from Labour Court Recommendation CD/14/266 the norm in the sector moved to paying the minimum wage hourly rate for the hours between 12 midnight and 8am while the rate for the hours where a worker was disturbed remained the same as before. In the case to hand the Employer implemented that change from June 2020 and back dated the new rates to June 2018. The complaint in this case is in respect of a period prior to the implementation of the change to the rate pay for the hours 12 midnight to 8.00am. Summary of Complainants case The Complainant submitted that the Respondent unilaterally changed the manner in which ‘sleepovers’ were paid in June 2020, and this constituted a breach of the Act but accepted that it was outside of the cognisable period for this complaint. The Complainant submitted that since she commenced work with this employer up until June 2020, during a sleepover, the periods between 12 midnight and 8.00am were paid at a rate of €76 for the block of hours. The Complainant submitted that this allowance was calculated by multiplying the hourly rate by five so de facto she was only paid for five of the eight hours she worked, and that the last three hours were not paid. The Complainant submitted that although her pay slips for the period did not show a deduction in the amount she was paid, this was misleading as it did not take account of the fact that during the period she had not been paid for three hours that she worked. The Complainant was unable to provide any evidence supporting her contention that the €76 euro only related to the first five hours of the 12 midnight to eight am period and not the total eight hours. She submitted that she was told this by a manager. Unfortunately, the manager was not available to give sworn evidence to that effect. Summary of Respondent’s case Mr Tony Kerr SC on behalf of the Respondent submitted that the application of the new rate after June 2020 actually increased the Complainant’s earnings to €10.10 for each hour during the period of 12 midnight to 8.00 am. Prior to that the rate was a payment of €76 euro for those eight hours, if you average that out over 8 hours it works out at €9.50per hour. The figure of €76 was arrived at by applying a multiplier of five to an hourly rate of pay. This appears to be where the confusion is arising as the Complainant is suggesting that the multiplier of five is an indication that only five out of the eight hours were paid for. This is not correct, the rate of €76 applied to the eight hours and always has. Different employers in the sector paid different lumpsums and the HSE for example only paid €46 for the same period of eight hours. If during that period, the Complainant is wakened she is then paid her normal hourly rate for the period she is awake. The Respondent’s records show that the Complainant was not wakened on any occasion during the cognisable period. Mr Kerr SC submitted that the Complainant has not established that on any occasions she was paid less than what was properly payable and therefore she has not established that a breach of the Act occurred. The applicable law Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers and in particular section5(6) states; “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 employer from the wages of the employee on the occasion”. Discussion. The Complainant could not point to any occasion during the cognisable period where she was paid less that the total amount of wages that were properly payable. On that basis the Court has to find that there has not been a contravention of the Act. Conclusion
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