ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00029443

Parties:

	Complainant	Respondent
Parties	Siobhan Murphy	Focus Ireland Company Limited By Guarantee Focus Ireland

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

Natasha Hand

Richard Grogan & Associates

Kevin Bell BL instructed by Orla Veale Martin Kennedy Sols

Complaint(s):

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-00039072-001	06/08/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00039072-002	06/08/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00039072-003	06/08/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00039072-004	06/08/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00039814-001	10/09/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000	CA-00039072-006	06/08/2020

Date of Adjudication Hearing: 26/11/21 and 04/02/22 and 13/07/2022

Workplace Relations Commission Adjudication Officer: Janet Hughes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

In this case the first matter raised for consideration by the Respondent was that the Complainant was not in fact an employee for the purposes of these complaints. That she was in fact a volunteer without any employment status. Extensive Submissions were made on behalf of both parties on this point on the first day of the hearing supported by witness evidence. At the conclusion of that day I informed the parties that I would consider this preliminary issue first and determine if I found that the Complainant was an employee for the purposes of the Complaints in which case the hearing would be reconvened to hear arguments regarding redress based on a ruling or, in the alternative, if I found that the Complainant was not an employee, I would issue a decision to that effect. On 04 January 2021 I wrote to the parties setting out in full the background the arguments and evidence presented on the matter of employee status. In that ruling, it was found that the Complainant satisfied the tests of employment status and the parties were advised that the matter of redress would be considered based on submissions of a reconvened hearing. The hearing was reconvened on that basis on 4 February 2022. On the morning of the hearing, in fact as it was starting, the Respondent provided a new submission on the matter of redress. That submission was accompanied by spreadsheets which had only arrived with the Barrister shortly before the hearing. While not accepting the finding that the Complainant had employee status that submission contained substantial new arguments as to how the Minimum Wage Act should be applied to the Complainant and related details of on call attendance not previously seen by the Complainant or her representative. As it was immediately evident that these new grounds contained arguments and information which had the potential to seriously undermine the quantum of any award to the Complainant (allowing for the fact that the Respondent did not agree with the ruling on employment status)-the hearing was adjourned to allow for the Complainant and the AO to consider the new information affecting all claims and the legal arguments related to the Minimum Wage.

The hearing reconvened on a third and final day in July 2022 at which point the claims for redress were debated. The Complainants representative did not provide a further submission-sending only S.I. 8/2020-National Minimum Wage Order 2020. When the hearing resumed the Complainant Representative did not produce any evidence to refute or challenge the figures for the number of call-outs or other calculations presented by the Respondent in their second submission. The debate at the hearing in July 2022 then became one largely of arguments and discussion around legislative interpretation.

As the parties are named in the published Decision the generic terms of Complainant and Respondent are used in the remainder of the text.

Preliminary Issue Employment Status

What follows is the text of the letter to the parties on the Preliminary Issue raised by the Respondent-that the Complainant is not an employee.

Some brief points regarding the claims in terms of the timeline are as follows. A complaint was submitted to the Respondent on behalf of the Complainant on 6 August 2020 under the Organisation of Working Time Act and the Terms of Employment (Information) Act. A request for a statement of the average hourly rate of pay was submitted to the Respondent on 6 August 2020 and an additional complaint under the National Minimum Wage Act was notified to the WRC on 10 September 2020. No response was received to the correspondence seeking among other items the statement of average hourly earnings.

On behalf of the Complainant, it was stated that she commenced employment with the Respondent as a social worker in 2012 and then took up the role as caretaker in 2016. In September 2018 (she)resigned her position as a social care worker and subsequently she commenced employment in another organisation but continued on as a caretaker for the Respondent. On commencement of the role of a caretaker the Complainant was given a terms of agreement document dated 29 August 2016, the full contents of which are set out later in this decision. The role was secured following a competency-based interview in a position that was advertised by the Respondent. The role of caretaker required the Complainant to be available from 8.00pm until 8.00am seven nights on and seven nights off. From 8.00 until 11.00pm, the Complainant was required to be fit for work and within 15 minutes of the site. From 11 onwards the Complainant needed to be physically on site until the morning. There was another caretaker at this time and as no annual leave was allowed for, the Complainant was able to obtain days off by swapping shifts with the other caretaker and the Complainant only ever had two days that were given off where there was no swap involved. The Complainant states that the amount of work was difficult to quantify as she may have had weeks where she was not called out, but she could have times where she was called to an incident numerous time in a week or even on one night. The Complainant would have completed intervention logs when she had to be called out. Sometimes the Complainant would deal with the issue by way of phone call and not have to attend in person. The frequent phone calls the Complainant would deal with related to antisocial behaviour/supporting residents in distressed emotional states/preventing criminal activity on site and so on. If emergency services needed to be called the Complainant would also need to be on site for ambulances, Gardaí and so on. She was required to conduct “welfare checks” during the night if the staff had concerns over a resident. She was required to complete incident reports/child protection notifications/intervention logs on the night in question. Outside of the 8pm to 8am shift the Complainant would sometimes need to be available to attend meetings/receive verbal handovers prior to shift or follow up the following day if an incident occurred. Where she was required to cover two sites, she had to leave one site in the middle of the night and go to attend at the other site if an incident occurred. As she was also a social care worker much of the decision making fell to her as the caretaker based on her assessment of risk, need and resources. An on-call manager was available on the phone at all times. Precedent cases were provided in support of the complaint. Certain precedents related to the calculation of hours worked, the estimated value of the claim and such matters. Specifically related to the employment relationship the Complainant’s representative provided the text of the decisions. Camp

Hill Communities of Ireland and Elke Williams UDD2155, a copy of which was provided to the hearing. Attention was also drawn to The Board of Management of Malahide Community School and Dawn Marie Conaty [2019] IEHC 486. The summary of the argument arising from the Camp Hill decision is that it supported circumstances were very much the same as in this case and the Labour Court in that instance determined that the complainant was an employee for the purposes of considering a complaint under the Unfair Dismissals Act 1977. Reference to the case in Malahide was made on the basis that the Complainant in that instance did not have access to legal advice when signing a contract and it was argued that the same factor should apply in the current case where the Complainant entered into what was described as terms of agreement without any prior legal advice on the implications of signing that agreement. Essentially the tests set out in the Camp Hill decision as determined by the Court with regard to mutuality of obligation, the provision of accommodation as a consideration in the nature of income, integration and control of the Complainant within the organisation while in the role of caretaker as evidenced by her requirement to report incidents and to attend meetings outside of core hours and her obligation to be available for work as provided for in the agreement were present in this case. Reference was made to a document dated the 28th of April 2020 issued by the Project Leader for Focus Ireland where it was said “Siobhan was employed by Focus Ireland as a social care worker to provide support and other emergency responses to staff and residents in our supported housing units located in the Dublin area. It was a requirement of this role that Siobhan become a tenant also, as proximity to site was highly important.” The wording of that document where it is stated that she was employed, the role that she was required to provide and the requirement that she became a tenant while in that role were cited as clear confirmation that there was a formal employment relationship recognised by the Respondent at that time. In relation to the resignation from paid employment in 2018 attention was drawn to the fact that the Complainant resigned at that time from her paid position due to unsatisfactory terms and conditions of employment.

Witness evidence

The Complainant gave evidence of how the job was advertised in her workplace. She had applied for the job, was interviewed and largely confirmed the statements made on her behalf by her representative regarding her role and responsibilities. Asked why she made the claim when she did, that is to say following the termination of her employment unlike the person in Camp Hill who made the claim to be an employee at the point when she was dismissed, the Complainant said that while she was in the role other people had spoken to her expressing concern about the work that she was doing and not receiving any payment for that work. She felt it was very much in the nature of providing support for those in need at the time or at least this is how she would have replied to others when they were concerned about the amount of time that she was required to give and the nature of her role in the position. And she wanted the accommodation provided with the role. After she left the employment, she was advised that she should go to a solicitor and get advice on the matter and her rights. In the course of her evidence, she described how she would be the decision maker on duty and that managers never called to the premises at any point when she rang regarding an incident or a concern.

Summary of the Respondent’s case

The Respondent made a written submission part of which concerned the matter of a consideration, and which suggested that consideration in a contract of employment law at common law includes consideration which consists of the provision of work in return for the payment of a salary or wage. At the hearing the Respondent Barrister did not rely on the written submission to the extent that he denied that there was a consideration but rather made a presentation based on the written submission and additional elaboration. It was submitted that the factual chronology in this case is important. The Complainant was not employed by the Respondent as a caretaker but was in fact a volunteer caretaker. She undertook the role in a voluntary capacity in the full knowledge that it was an unsalaried voluntary position. There was no contract of employment between the Complainant and the Respondent in respect of the caretaker role, nor did the Respondent at any time intend to enter into a contract of employment with the Complainant in respect of the caretaker role.

In the absence of a contract of employment in respect of the caretaker role the Complainant has no standing to mount the claims encompassed by the complaints. In terms of the chronology, the Complainant began volunteering with the Respondent in or around 2012. She then secured paid employment as a project worker on 7 March 2016, a role which she continued in until her resignation on 23 August 2018. On her appointment to the role of project worker the Complainant signed a written contract of employment with the Respondent on 8 March 2016. That contract of employment set out the terms on which the Complainant was engaged as an employee and all the elements of that relationship.

On 29 August 2016 after she commenced her role as project officer the Complainant also began a volunteer role as caretaker of one of the Respondent’s facilities. She continued as a volunteer caretaker after the resignation of her employment with the Respondent until 10 June 2020 at which point, she voluntarily ceased her engagement with the Respondent. As a volunteer caretake the Respondent provided the Complainant with accommodation and discharged her utility bills. This fact did not create an employment relationship.

The Complainant was fully apprised of what was involved with her volunteer role, the Complainant was provided with the document entitled “Caretaker list of duties” which outlined the duties of a caretaker with the Respondent. The Complainant signed this document to indicate both her understanding of, and acceptance of these terms. Emphasis was placed on the following two clauses within the terms agreed and accepted by the Complainant: “(f) Nothing in this agreement shall be taken to mean that the caretaker is an employee of Focus Ireland (g) Nothing in this agreement shall create contract or tenancy or contract of employment as between the parties”. Referring to the resignation letter of 19 July 2018 from the role of project worker the signed letter referred to her “current post” with the Respondent, that being the position of project worker. She was issued with a P45 in respect of that post. It was submitted that the Complainant is saying that she was employed under two separate contracts of employment which is manifestly impossible. She did not raise any question of her employment relationship when she received her P45. There was a significant benefit

provided in the form of accommodation which it was acknowledged can constitute a contract except where there was a written agreement, in this case signed and understood regarding the tenancy arrangement and the nature of the contracted relationship.

Referring to the Camp Hill decision, accommodation was an ingredient in that case, however there was no written contract, no written evidence of the relationship and there was an absence of intention in contrast to the situation in the current case where there was a written contract, written evidence of the relationship and a clear intention of the parties regarding the arrangement which they entered into in the contract in 2016. Comparisons were drawn with other volunteer scenarios where that volunteer would receive directions from a body or organisation, would be required to be in certain places at certain times and may receive benefit in kind for the performance of certain volunteer functions, but that would not render them employees. No volunteer organisation could operate with a cohort of volunteers on the basis of concession of the claim in this case. Examples were given of solicitors providing services to at legal aid centres and referees whose services were engaged by the GAA on a voluntary basis.

Regarding the reference to the Malahide Community School case, that was a case based on the terms of the Fixed-Term Work Act and the provisions of that legislation and did not apply to the circumstances of the current case. The contract in the current case specifically provided that the Complainant could work elsewhere which was not part of the contract either in Camp Hill Communities or Malahide Community School. On the point regarding the advertising of the post, there was a competency and assessment piece. This was a very sensitive role, could not have been given to anyone off the street, however this does not create a contract of employment but rather addresses the matter of suitability for the volunteer caretaker role. Where the Complainant representative argued that there was a mutuality of obligation because the Complainant was required to carry out work in return for accommodation on a regular basis with a predictive pattern

each week on particular shifts, it was contended by the Respondent that there was no obligation as this was not a legally enforceable contract with no mechanism to force the Complainant such as would exist in an employment relationship. This was not a legally binding contract and while there was a degree of mutuality there was no obligation.

Witness Evidence

The HR Director gave evidence about how the role developed over the years. It was her understanding that this arrangement was one in place for over 20 years on the basis of providing accommodation. A job description was agreed and signed. At all times the Complainant had access to managers for support. Regarding the degree of control, she was required to report to a project manager or shift leader, to attend meetings and to consult senior people regarding time off. If there was a life-or-death situation, she could request a manager to attend. It was the HR Director’s understanding that this was a role that was offered to employees of Focus Ireland on a volunteer basis. There are policies and processes in place if there was a grievance and these issues could have been raised at any time while the Complainant was in the role, which she did not do at any stage.

Adjudication Officer Ruling: Preliminary Issue-Employment Status

“Each case must be considered in the light of its particular facts and of the general principles which the courts have developed” Keane J at 49 Henry Denny & Sons (Ireland) v Minister for Social Welfare [1998] 1 IR 34

The decades may have passed, and case law may have altered many previous understandings of what constitutes an employment relationship, but the words of the learned Judge are as relevant as ever. Each case concerned with employment status, including those cited as precedents in this one, has/d its own peculiarities. Common to the majority of cases usually referenced as precedents-a financial payment for services formed part of the bargain between the parties. In the recent Uber case for example-the drivers did receive payment for deliveries prior to the lodging the claim to be defined as workers. In Henry Denny -the Complainants were paid on invoices, providing their services as demonstrators as and when required. In Barry and Ors vs Minister for Agriculture, the complainants received a session fee. The provision of accommodation only without any consideration outside of utility bills is has no exact comparator in terms of precedents presented. The nearest comparator is undoubtedly the recent Determination of the Labour Court in the Camphill case. Although even it that case ‘consideration’ extended far beyond the provision of accommodation into a monthly allowance for ‘reasonable needs’ at one time through theprovision of a credit card;payment for holidays;putting a child through college, access to a car and there was reference to a financial arrangement post retirement. Unlike the accommodation arrangement in the current case, the financial arrangement for LTCWs of which the Complainant in that case was one which had come to the attention of the Revenue Commissioners some years previously who apparently viewed the relationship as a PAYE taxable one. The extent of integration into the standards of care required of employees contained in the Camphill Case as described in evidence was considerable and more evident than in this including previous recourse to the disciplinary procedures, annual appraisal and supervision. None of these factors are present in the current case. The Labour Court found there was a mutual obligation. In doing so, the Court relied on the following:

“The service provided by the by the Respondent was to provide residential and day services for people with disabilities. The service differed to the services provided in the Barry and MacKay cases in that the service requirements were in the main regular and predictable carried out in the same location week in week out. The contract entered into was that the Complainant would do the work that was required to be done in return for her accommodation and needs met. In order for the Complainant to get her needs met (which the Respondent had undertaken to do) the Respondent had to provide the Complainant with work. In the nature of this case once the mutuality of obligation was established at the commencement of the contract it continued without break or interference.’

As can be seen there are some significant similarities in the two cases but there are also differences. With due regard to the Camphill Determination, it is necessary to examine the facts in this case against the generally well understood and previously determined essential elements of a contract which must be met at least to a significant extent if an employment relationship is to be found where this is disputed. And in doing so the fact and terms of the agreed written Terms of Agreement which did not exist in the case in Camphill are also considered .

Control

Based on the evidence of the Complainant and the HR Director the Complainant had an obligation to report issues which occurred while she was on duty to a manager. In addition, she attended meetings with managers at different stages, she had to keep records of incidents; she had to report serious incidents to managers if they occurred, she was sometimes required to conduct checks on residents based on the handover instructions.

The degree of control is reflected in the Terms of Agreement at Section 2:

“Focus Ireland reserves the right to terminate the agreement immediately in the event that Focus Ireland has reasonable grounds to believe that the Caretaker has breached the terms of this agreement or has omitted or refused to carry out the Caretaker’s duties to the reasonable satisfaction of Focus Ireland.’

Arguably, this term was worse than any disciplinary procedure as it allowed an exercise of unilateral control of the contract on the basis of a subjective judgement by one party-the Respondent- on unspecified grounds. When combined with the reporting arrangement and the delegation of instructions regarding duties as required, a sufficient level of control over the working arrangements existed to meet the test of control required towards an employment relationship.

Integration

In most respects the issues which contribute to the conclusion regarding control are the same as those which operate for the purposes of integration. The service of a caretaker was an essential part of the care services provided by the Respondent in circumstances where services users were unable or could not be left unsupervised during the night by Focus Ireland. This is demonstrated by the fact that a second caretaker was engaged for the alternative shifts to those worked by the Complainant.

Section 3 of the Contract refers:

The Caretaker shall carry out the Caretakers duties as set out in the schedule to this agreement in a proper, legal and professional manner and will have consideration at all times for the best interest of the residents and of Focus Ireland and will not do anything which is to their detriment or to the detriment of Focus Ireland.’

Mutuality of Obligation

As with the Camphill Case, the provision of accommodation provided the main element of the financial relationship. The Complainant in both cases applied for a position, they were interviewed, and both were offered positions. In this case, in return for her free accommodation and utility bills, was obliged to carry out certain duties. Unlike the GAA referee or the solicitor providing free legal aid services, she could not opt out of the arrangement to suit herself-or if she did so-there were repercussions. Of significant difference is that she was both receiving a consideration of some value in accommodation but also, unlike the GAA volunteer or the solicitor providing legal advice on a voluntary basis she was obliged to live at the premises where she was providing her service. If she failed to carry out her duties or to be available as required, she had failed in her obligations. And she had a very set routine with which she was required to comply. Indeed, the following clauses could be just as readily apply in the context of control:

‘The Caretaker shall make her/himself available for call out 7 nights out of the 14 or at the times necessary for the proper performance of the Caretakers duties.’

And as can be seen from the terms of Clause 6 of the Terms of Agreement it was the Respondent who set the working hours of the Complainant even when not fulfilling her duties as a caretaker:

‘Nothing in this agreement shall prevent the Caretaker from undertaking full-time employment during the day or on the nights when the Caretaker is not on call.’

That clause is an indication of the extent of the Complainants obligation to the Respondent and the extent of their control over their working time including effectively the priority to be given to the Respondents needs. All in return for accommodation as the only consideration. A self-employed contractor might have a mix of income from different sources at different times and a volunteer will have commitments to a particular organisation on a voluntary basis and indeed may give extraordinary levels of personal time to that voluntarism. However their working and hours of availability are their own, they are not usually bound by a schedule of duties in writing, liable to unilateral termination and they do not usually have set reporting relationships in providing a service which is integral to the services of the other party.

From all of the forgoing I find that the requisite elements of mutuality of obligation, integration and control existed such as to establish that the relationship between the Complainant and the Respondent was one of a contract of employment. The enterprise test was not raised as it so often is in these cases-an indication perhaps of the peculiarity of the case. By way of observation, this arrangement is one which, as evidenced by the Director of HR, was put in place many years ago. It would seem that it has not kept pace with the developments regarding the interpretation of employment relationships in the interim.

Finally, and in distinction from the case in Camphill, there is the central point of the respondents case that there was a contract in place between the parties which specifically provided for and agreed that theirs was neither a tenancy agreement or a contract of employment.

‘Nothing in this agreement shall be taken to mean that the Caretaker is an employee of Focus Ireland.’

And

‘Nothing in this agreement shall create contract or tenancy or contract of employment as between the parties.’

With respect, it was clear from her own evidence that the attractive part of this arrangement to the Complainant was the provision of ‘free’ accommodation. And it is reasonable to conclude that a refusal of the offer would have lost her that opportunity. Every aspect of the contract examined in this case is written from the perspective of Focus Ireland. In the circumstances it was not a balanced partnership or contract in any respect. In any event whether through ignorance or desperation, contracting out of employment rights in respect of the claims brought by this Complainant is not an option open to an employee and this includes the conclusion that neither contract themselves out of an employment relationship for the avoidance of paying taxes on benefit related to that contract. The terms of an(sic) wholly unfair and one sided agreement which favoured the Respondent in the main, cannot be upheld as the basis of denying that an employment relationship existed for the purposes for national legislation and EU Directives.

On the basis of the forgoing ruling the hearing is to be reconvened to hear arguments regarding redress.

The forgoing sets out the general background, cases stated and the reasoning behind the conclusion that the Complainant was an employee for the purposes of the complaints submitted. The effect of the reasoning is set out in the Findings below and Decision. In the following sections under background and summaries, the matter of redress is addressed based on submissions and arguments at the hearing on 13 July 2022 having regard to the applicable legislation.

Background:

Based on the finding that the Complainant was an employee for the purposes of the claims for redress-the summaries below contain the details of the claims and the arguments around the related legislation including the differing valuations placed on those claims by the parties i.e., Terms of Employment Information Act as amended; Organisation of Working Time Act; National Minimum Wage Act 2000.

Summary of Complainant’s Case:

Terms of Employment Information Act 1994 as amended.

The submission for the Complainant referred to the document issued on 29th August 2016 and then set out the various clauses which did not comply with the provisions of Section 3 of the Act of 1994.

The Labour Court in Beechfield Private Homecare Ltd and Megan Kelly Hayes TED1919 found that the Complainant did not have to suffer a detriment to be entitled to the maximum compensation of four weeks pay. Persuasive compensation was sought.

Organisation of Working Time Act 1997

Claims for compensation were submitted on the following grounds:

The Complainant as an employee did not receive her statutory rest breaks. Compensation was sought in respect of each daily breach. Reference was made to the requirements to provide breaks of fifteen minutes and thirty minutes respectively in line with the legislation-Section 12.

The Complainant did not receive paid public holidays-those referred to were in May June Easter Monday and St Patricks day. Section 21 refers-no calculations provided-compensation sought.

The Complainant received no payment of annual leave on leaving which she was entitled to-Section 23 Refers-no calculation provided-compensation sought.

National Minimum Wage Act 2000

The claim for the application of the National Minimum Wage Act for the period August 2016 to June 2020 is based on the claim that the Complainant was an employee throughout this period. A Section 23 request for average earnings over a relevant period was submitted on 06.08.2020.

Calculations setting out the value of the claim were provided as follows:

1 January 2018-1 January 2019

Minimum wage 9.55

Hours worked: 2184 x 9.55 per hour 20,857.20

Lodgings 23.86 per week x 26 weeks 620.36

20857.20 -630.36 = total due for this period 20386.84

1 January 2019 -1 January 2020

Minimum Rate:9.80

Hours worked 2184

2184 x 9.80 = 21403.20

Lodgings 23.86 per week x 26 weeks = 620.36

21403.20-620.36 = total due for this period 20782.84

1 February 2020-1 June 2020

Minimum rate 10.10

Hours worked 672

672x 10.10 =6787.20

Lodgings 23.86 per week x 8 weeks =190.88

6787.20 – 190.88 = 6596.32 =total due for this period 6596.32

At both full hearings, the Complainant representative had to be pressed to provide clarity as to the basis of her calculations, referring on both occasions to not being an accountant.

The Complainant is relying on the case of Karpenko and Freshcut Food Services Ltd-copy supplied

In response to the Respondent submission on the interpretation of the Minimum Wage Act, the Representative contended that the clause in question was intended for work such as part time [retained] firefighters who were available on call from their homes.

Summary of Respondent’s Case:

In respect of the redress sought by the Complainant under the different forms of legislation it makes more sense to commence with the calculations advanced in relation to the Minimum Wage Act 2000 as Decision in relation to that complaint will have knock effects for the remaining complaints in terms of the quantum of any award.

The application of the Minimum Wage Act 2000

In their submission, the Respondent contended that their primary position was that the claim under the Minimum Wage Act 2000 is limited to the six months prior to the submission of the claim on 8 September 2000. In support of that contention, they referred to ADJ-00014865 where the AO concluded in that case that the reckonable period was a six-month period unless there was an extension of a further six months-referring to Section 41 (6) of the Act of 2015. The representative agreed with the undersigned that the Minimum Wage Act 2000 is not included in Schedule 6 of the Workplace Relations Act in relation to time limits(creating a cognisable period) but rather that it was a principle applying to the other legislation in that Act, a clear policy of the Oireachtas and should be applied in this case, as it was by another Adjudication Officer in the decision cited.

The position of the Complainant supporting their calculations under all legislation is the interpretation which they say applies to the claim under the Minimum Wage Act or to be precise what constitutes an hour or part of an hour of work. In their submission to the resumed hearing, the Respondent drew attention to Section 8(2) of the Act which defines working hours. In particular they rely on section 8(2) (c) (i) which states when defining working hours commences with

but shall not include-

‘time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call’

The Complainant was required to be available on call for twenty-six weeks and not fifty-two as she has claimed in her in her redress calculations.

‘Section 8(2) of the Act makes it clear that time spent on call is not to be regarded as ‘working hours.’ It is clear that time spent on call at home is not to be counted as “working hours” for the purposes of S8(2) of the Act. It is clear that the Complainants apartment was her principal private residence and cannot be considered a place of work or training for the purposes of 8(2). Therefore, the Complainants time on call cannot be included in the calculation of her working hours for the purposes of the 2000 Act.’

The plain meaning of the words of section 8(2) applies. When the Complainant closed the door of her apartment she was at home and not at work and she could do what she wanted at home.

While not accepting that the Complainant was an employee at any stage, without prejudice to that position the Respondent provided details of the hours worked by the Complainant over two periods. The first was the period September 2016 to May 2018 for which detailed records were not available. They then took the period of 24 months from June 2018 and 2020 and applied the same figures for that period (for which detailed records were kept) and applied them to the earlier period. In the second period, the total number of call outs was 70 for an average of 36 minutes amounting to 42.5 hours over that period.

Applying the same rationale to the earlier period they arrived at a figure of 45 hours. This gave a total of 87.5 hours worked which at the current (and higher) rate amounts to a maximum of 918.75 euro due to the Complainant. When board and lodging at 23.80 per week is factored in, the Complainant actually owes the Respondent 4604.98 euro to cover the same period and should receive no award.

Organisation of Working Time Act 1997

Section 12-Sunday Premium

The Complainant worked on two Sundays in this period-20 minutes on 29 March 2020 and 29 February 2020 for five minutes. Note this was the response in the submission-the actual claim was in respect of breaks-no breaks during working time.

Sections 19 and 22 -Holiday Pay/Public Holiday Pay

The working hours of the Complainant averaged 21 hours per annum. At 8% of the hours worked this amount to an entitlement of 101 minutes annual leave with a value of 17.64.

During the cognisable period, the Complainant worked on none of the Public Holidays which fell during that period.

Terms of Employment Information Act 1994

The Respondent concedes that in circumstances where the Complainant is defined as an employee by the Adjudication Officer, the Respondent did not provide terms of employment to comply with the legislation. At maximum compensation of four weeks this would amount to 42 euro as the average working week was 48 minutes (21 hours on call divided by 26 weeks) or 42 euro.

Findings and Conclusions:

Preliminary Issue -Employment Status

Based on the reasoning issued to the parties on 4th January 2022 and replicated in the procedures section of this text-it is found that the Complainant had employee status in her role as caretaker with the Respondent and as such, as she was entitled to bring complaints under employment legislation, I have jurisdiction to decide those complaints.

Complaint Minimum Wage Act 2000

The following extracts from the Minimum Wage Act 2000 are relevant to the decisions to be made in relation to the application of the Act to the facts in this case.

“pay” means all amounts of payment, and any benefit-in-kind specified in Part 1 of Schedule 1, made or allowed by an employer to an employee in respect of the employee’s employment.

“working hours” has the meaning assigned to it by section 8

Working hours of employee for pay reference period.

8.—(1) For the purpose of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act, but subject to section 9, “working hours”, in relation to an employee in a pay reference period, means—

(a) the hours (including a part of an hour) of work of the employee as determined in accordance with—

(i) his or her contract of employment,

(ii) any collective agreement that relates to the employee,

(iii) any Registered Employment Agreement that relates to the employee,

(iv) any Employment Regulation Order that relates to the employee,

(v) any statement provided by the employee’s employer to the employee in accordance with section 3(1) of the Terms of Employment (Information) Act, 1994,

(vi) any notification by the employee’s employer to the employee under section 17 of the Organisation of Working Time Act, 1997,

(vii) section 18 of the Organisation of Working Time Act, 1997, or

(viii) any other agreement made between the employee and his or her employer or their representatives that includes a provision in relation to hours of work,

(b) the total hours during which the employee carries out or performs the activities of his or her work at the employee’s place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work,

whichever, in any case, is the greater number of hours of work.

(2) “Working hours” under this section shall include—

(a) overtime,

(b) time spent travelling on official business, and

(c) time spent on training or on a training course or course of study authorised by the employer, within the workplace or elsewhere, during normal working hours,

but shall not include—

(i) time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call,

(ii) time spent absent from work on annual leave, sick leave, protective leave, adoptive leave, parental leave, carer’s leave under the Carer’s Leave Act, 2001, while laid-off, on strike or on ‘lock-out’, or time for which the employee is paid in lieu of notice, or

(iii) time spent on travelling between an employee’s place of residence and place of work and back.

Pro-rata entitlement to minimum hourly rate of pay for less than full hour.

17.—The rate of pay that a person is entitled to in accordance with this Part shall be calculated pro-rata in respect of any time that is less than a full hour.

26. (1) A decision of an adjudication officer in relation to a dispute in respect of the entitlements of an employee under this Act referred to the adjudication officer under section 41 of the Workplace Relations Act 2015 may contain—

(a) a direction to the employer to pay to the employee—

(i) an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates, and

(ii) reasonable expenses of the employee in connection with the dispute,

(b) a requirement that the employer rectify, within a specified time (not being later than 42 days after the date the decision is communicated to the employer) or in a specified manner, any matter, including the payment of any amount, in respect of which the employer is in contravention of this Act, or

The first issue to arise from the terms of the Act is effectively the definition of the working hours related in this case to the place of work. The contract between the parties in this case required the Complainant to be available on call every second week. Her claim for redress therefore should be based on that maximum availability i.e., 26 weeks of the year unless there were other weeks during that period when she arranged cover for any week. The submissions on her behalf regarding the amounts claimed were either inaccurate or incomplete or both and the explanations were unsatisfactory to say the least. It was surprising that the Complainant accepted the frequency of callouts over the period in dispute given the evidence of multiple call outs and a general flavour to her evidence at the first hearing to the effect that the work associated with her role as caretaker while on call was constant and therefore onerous. The records produced by the Respondent to the resumed hearing suggest otherwise. Equally it must be said that it is surprising that the Respondent did not arrive at the first day of hearing armed with the information and arguments around the National Minimum Wage Act made available only at the last minute, literally, for the resumed hearing which hearing they could not have anticipated would be required at all. The point here-there is an onus on those who are professional representatives to provide the Adjudication Officer with all the material facts and legal arguments and proper estimates of claims (and in advance of hearings).

As can be seen from the different values placed on the claim under the NMW act-the difference between the value placed on the claim by the Complainant and the calculation of the Respondent is the equivalent of a chasm.

In determining the arguments regarding the value of the claim, the only reference point can be the terms of the legislation. The Complainants representative may well be correct that the clause regarding standby was intended for a quite different situation where employees are on standby some distance from their workplace. However, the claim can only be assessed within the terms of the legislation. The case made against the Labour Court in Karpenko v Freshfoods Ltd was just that-the Labour Court could not read into the legislation a meaning of their own-they had to apply the law as written and this argument was accepted by the High Court in that case. So, applying the terms of Act -on the face of it, the definition of working hours replicated below could favour the Complainant.

The definitions of working hours

However, for the above section of the Act to apply to her she must be present and available for work at her place of work. It is not necessary that she actually work every hour while available at the workplace, but she must be at her workplace to qualify for payment whereas the basis of the case presented on behalf of the Complainant-is that her being available on call represented her hours of work and can been hours on standby away from the workplace are not comprehended by the Section 8. The question which is to decide whether the forgoing or the following clause applies, is the definition of the workplace in the case of the Complainant. If her residence at the Respondents premises is to be defined as her home, she cannot succeed in having all on call hours assessed for the purposes of her claim. If her residence is to be defined as part of her place of work, then she is entitled to the minimum wage for the hours that she was available to work at her place of work as defined in her contract. The test is whether the circumstances of the Complainant and her contractual arrangement complies the terms following term of Section 8:

but shall not include—

(i) time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call,

On balance, I find that the accommodation provided by the Respondent free of charge to the Complainant was her home and personal private residence. This was her residence for fifty-two weeks of the year and not only while on call for twenty-six of those weeks. She was employed for some of the period in dispute in another role within the same employment and as her address was her home for the purposes of that role with the employment, it would seem perverse to the alter the nature of that place to her workplace when she was performing the role of caretaker given that she had no other principal private residence, or home. Appreciating that this type of situation was probably not envisaged by the legislators and also recognising that in other employment situations on-call arrangements form part of contracts, terms of employment and collective agreements which have their own pay arrangements, nonetheless the legislation is as written and clear. No claim was made for the application of the zero hours legislation brought about by the Miscellaneous Provisions Act 2019 and no conclusions are reached on the applicability or non-applicability of that amending legislation. For the avoidance of doubt, this decision is not akin to deciding on working hours under the Working Time Directive. It seems necessary to add that this was not a situation from which the Complainant had no benefit-as though she were making herself available ‘for free’. There was a considerable benefit to her-accommodation fifty two weeks of the year at no charge which was a valuable exchange for her availability close at hand when required.

Based on the forgoing finding in respect of the hours of work to be used for the purposes of calculating the value of the claims and related redress, I find with the Respondent and that the hours actually worked are to be used as the basis of the calculation and not those on call outside of the workplace which did not involve any work. It is the following section which applies in this case.

but shall not include—

(i) time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call,

Pro-rata entitlement to minimum hourly rate of pay for less than full hour.

17.—The rate of pay that a person is entitled to in accordance with this Part shall be calculated pro-rata in respect of any time that is less than a full hour.

(a) a direction to the employer to pay to the employee—

(ii) reasonable expenses of the employee in connection with the dispute,

Regarding the basis of the calculations to form the basis of the Decisions under each piece of legislation, Section 17 applies to the calculation of pro rata time. There is no provision for paying a full hour for a shorter period worked.

Regarding the time limit issue raised by the Respondent as agreed at the hearing, there is no provision within the Act of 2015 which limits the complainant under the Minimum Wage Act to cognisable periods of a six months extending to twelve in certain circumstances. The Minimum Wage Act was unique from its inception. The only reference period for the Adjudication Officer (formerly the Rights Commissioner) described in the body of the original legislation is that of the period of the dispute as provided for in Section 26(1)(a)(i). And as that period is not defined, it can be as long as the period of employment-as it is in this Complaint. Nonetheless, as pointed out to the parties at the hearing, there is a discretion as to how much will be awarded by the Adjudication Officer ‘in all the circumstances.’ It is not unreasonable to suggest that any Adjudication Officer will apply the latter phrase judiciously.

The six months restriction applies to a requirement to submit a complaint within six months up to a maximum of twelve from the date of receipt or non-receipt of the statement for the reference period (Section 24 refers).

In the absence of any evidence to contradict the records provided by the Respondent the decisions on redress will reflect those figures and related calculations. As there was no agreement or contract in place regarding the deductions for lodging and as the deduction of lodging is not mandatory on the part of an employer, I decline to accept the Respondent calculations in that regard. Given the amounts involved in the redress awarded I consider that payment of the full amount as calculated by the Respondent is the simplest and most effective means of identifying an amount to be paid-bearing in mind the figures for part of that period are an estimate. Given the value of the award versus the quantum of the claims-even on a twenty-six-week basis as they should have been calculated, I do not think the Respondent can complain of the harshness of the decision.

There is no award of costs to the Complainant.

Complaints Organisation of Working Time Act 1997

There is no basis of an award of compensation for non-receipt of breaks. Given the short duration of time worked the terms of Section 12 do not apply in this case. In the circumstances there is no need to comment on the claim for compensation in respect of each breach.

There is no basis for an award of compensation for public holiday pay where the Complainant did not work public holidays during the cognisable period and did not have average hours of work in the related periods-or at least no argument to this effect was presented. In any event the amounts would be minute given the amount of gross pay due based on hours worked.

The amount of holiday pay calculated by the Respondent in their submission is accepted as the correct calculation for the cognisable period.

Terms of Employment Information Act 1994-as amended

Given the significance of the Finding that the Complainant was in fact an employee for the duration of the relationship I will allow the full amount of compensation payable under the Act-based on the Respondent calculations.

Decision:

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

Terms of Employment Act 1994 as amended

Organisation of Working Time Act 1997 as amended

Section 24 of the Minimum Wage Act 2000 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of that Act

CA-00039072-001 Terms and Conditions of Employment Act 1994-Section 7

The Complainant was an employee for the purposes of this Act. The complaint is well founded. The Respondent is to pay the Complainant 42 euro compensation in respect of her complaint that she did not receive a written statement of terms of employment to comply with the Act.

CA-00039072-002 Organisation of Working Time Act 1997-Breaks

Section 12-The Complainant was an employee for the purposes of this legislation. The complaint that she did not receive statutory breaks as defined under the legislation is not well founded.

CA-00039072-003 Organisation of Working Time Act 1997-Holiday Pay

Section 19-Holiday Pay. The Complainant was an employee for the purposes of this legislation. The complaint that she did not receive holiday pay for the cognisable period is well founded. The Respondent is to pay the Complainant 17.64 euro compensation in respect of non-payment of annual leave on termination.

CA-00039072-004 Organisation of Working Time Act 1997-Public Holiday Pay

Section 22. The Complainant was an employee for the purposes of this legislation. The complaint that she as due public holiday pay as claimed is not well founded.

CA-00039072-006 National Minimum Wage Act 2000 Pay

CA-00039814-001 National Minimum Wage Act 2000 Pay

One Decision is issued in respect of the complaints under this legislation which should be associated with the two CA numbers. The Complainant was an employee for the purposes of this legislation from August 2016 to June 2020. The complaint that she was due payments under the terms of the legislation is well founded. The Respondent is to pay the Complainant 918.75 euro.

Dated: 8th August 2022

Workplace Relations Commission Adjudication Officer: Janet Hughes

Key Words:

Employee Status/Minimum Wage/ Terms of Employment/Organisation of Working Time Act