ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028623
Parties:
| Complainant | Respondent |
Parties | Rafal Tasz | Cucullen Ltd Home Care Group |
Representatives | Siptu | Keith Kennedy, Cucullen Ltd |
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-00037747-001 | 18/06/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00037747-002 | 18/06/2020 |
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Date of Adjudication Hearing: 08/10/2021
Workplace Relations Commission Adjudication Officer: Shay Henry
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.
Background:
The complainant was employed as a nurse by the respondent. He requested to attend a training course and the respondent agreed, although it was not a course considered to be essential training for the complainant. The complainant left the company shortly afterwards and claims that he was owed for untaken annual leave, and for the wages deducted by the company in respect of the training course. |
Summary of Complainant’s Case:
The complainant, Mr Rafal Tasz, was employed as a nurse by the respondent company, Cucullen Ltd (trading as Home Care Group) from 30 October 2018 to 1 May 2020. The complainant was asked by the respondent to attend a four-day ‘Train the Trainer’ course in Dublin which ran from Monday 10 February 2020 to Thursday 13 February. The course fees and accommodation costs were paid for by the respondent, but expenses for food and travel were withheld, and 28 hours’ pay for that week was also withheld on the ground that the company did not pay for ‘non-mandatory training. The managing director of the respondent company told SIPTU by e-mail of 30 April 20202 that ‘your member was granted unpaid leave from 10/02/2020 – 13/02/2020 in order to attend a training course that he wished to pursue as further education for his own benefit. The company did however as gesture of good will offer to pay for this course.’ The complainant denies this and questions (a) how likely a person in the position of the complainant would be to give up four days’ wages and to incur expenses to take such a course ‘as further education for his own benefit’; and (b) how likely a company in the position of the respondent would be to pay course fees and accommodation costs for training which it did not need and which was being undertaken as an extra-mural activity of an employee. The complainant’s requests for payment were not answered. The employment ended on 1 May 2020: the complainant was not provided with pay in lieu in respect of 17 of the 20 days’ annual leave to which he was entitled in the 2019- 2020 statutory leave year. Section 5(1) of the 1991 Act provides that an employer shall not make a deduction from the wages of an employee unless the deduction is authorised by statute or the contract of employment or by prior written consent. None of these apply to the deduction of €560 in respect of the training days in February 2020. Section 19(1)(a) of the Organisation of Working Time Act, 1997 provides for an entitlement to paid annual leave equal to four working weeks in a leave year. The complainant was granted only three days of his 20-day entitlement in 2019-2020, leaving a deficit of 17 days.
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Summary of Respondent’s Case:
Mr Tasz and his union representative have always maintained that the company approved of the training which is not the case. Mr Tasz overheard a conversation that the program was running for other members of the nursing staff and he approached Mr Keith Kennedy, the then Managing Director(MD), on more than one occasion and asked if he could attend. The MD conceded in the end as he suggested he could benefit from it. The respondent’s thinking at the time was that it might act as a good retention tool as nursing staff were very difficult to find. The company had also already paid for the program and the person who was scheduled to go on the program had withdrawn from attending. The purpose of the training program was to facilitate a tender with the HSE, where the company had to demonstrate that key staff had been through this program. The complainant was not considered a key member of staff and he was not included in the tender, even after the training. The MD never confirmed with the complainant that he would be paid for his time as he was doing it on a voluntary basis. The MD never confirmed that the company would pay any expenses in relation to this. The company’s training policy states that if you get training from the company when you leave within a very short time, the company has the right to recoup all costs in relation to training. Mr Tasz left the company on the 1st of May 2020, a mere 6 weeks after the program that he volunteered to attend. He was not asked to refund the cost of the training.
Hours of work – CA-0037747-002 The complainant is claiming that he did not receive his holiday pay when he left the company. Mr Tasz took two weeks holidays starting on the 16th of April 2020 even though he would have only accrued 7 days in the period. He was paid for 14 days for his two weeks’ time off. Mr Tasz took 2 weeks holidays and in fact never returned to work. He never gave a notice period. |
Findings and Conclusions:
CA-00037747-002 Complaint under the Organisation of Working Time Act, 1997 It is clear that there had been some confusion surrounding payment for the time spent by the complainant on the training course. From the evidence given, it appears that, while the complainant got paid for that week, in fact the employer had recorded this as annual leave and deducted 3 days from his annual leave entitlement. From the evidence presented at the hearing I am satisfied that the complainant received his full holiday entitlement for the period of his employment, with the exception of 3 days which the company had applied to the training period. His complaint under the Organisation of Working Time Act, 1997 is well founded and he is owed 3 day’s pay in lieu of untaken annual leave. CA-00037747-001 Complaint under the Payment of Wages Act, 1991 This complaint refers to the same training period referred to above. The complainant did not have a deduction made from his wages, but rather a deduction from his annual leave. As I have already made a determination in relation to this issue under the Organisation of Working Time Act, the complaint under the Payment of Wages Act, 1991 is not well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complaint under section 27 of the Organisation of Working Time Act, 1997 is well founded and I order the respondent to pay the complaint the sum of €432 in respect of 3 day’s leave. The complaint under section 6 of the Payment of Wages Act, 1991 is not well founded. |
Dated: 23rd February 2022
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Payment of Wages, deduction for training course, Organisation of Working Time Act payment for untaken annual leave |