Complainant

Respondent

Parties

Patricia  Brennan

St Johns Community Hospital

Complainant

Respondent

Anonymised Parties

Patricia  Brennan

St Johns Community Hospital

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-00043778-001

27/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043778-002

27/04/2021

The Complainant stated in the first instance that the number of excess holiday hours which were to be deducted from her pay was incorrect. She also claimed that the start date shown on her contract of employment was incorrect because her service with her previous employer should have been recognised by the Respondent.

CA-00043778-001:

Further to her resignation from the Respondent in November 2020, the Complainant was informed that she had taken excess holidays in the amount of 57.82 hours and that these would have to be repaid by her. The Complainant disputed that she had taken this many holiday hours.

CA-00043778-002:

The Complainant stated that she started worked with an agency on 27th July 2015 prior to joining the Respondent on 10th October 2016. Given that she went straight from the agency to working with the Respondent, she stated that her previous service should have transferred to the Respondent given that she was working on the same site. Specifically, she stated that the start date on her initial contract of employment with the Respondent should have been 27th July 2015, the day she started working with the agency, and not 10th October 2016, the date on which she started working directly with the Respondent.

CA-00043778-001:

On 19th October, 2020 the Complainant resigned from her position and provided two weeks’ notice. Following this, the HR Department brought to Management’s attention that the Complainant had failed to provide the correct notice of four weeks as per her agreed Contract of Employment and that she had also overtaken annual leave equating to 57.82 hours.

The HR Department directed Management to recoup the overpayment of annual leave and the two weeks’ notice not worked. It was subsequently decided not to seek repayment of the two weeks’ notice the Complainant had not worked and the excess annual leave hours she took have not yet been deducted from the pay she has earned since re-starting with the Respondent in a clerical role in March 2021.

CA-00043778-002:

The Respondent stated that the Complainant’s start date on her initial contract of employment was 10th October 2016 and asserted that this was correct. The Respondent stated that her previous service with the agency should not be recognised because it was a different employment.

CA-00043778-001:

THE LAW

The Payment of Wages Act 1991 at Section 5, in relevant part, provides as follows:

5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

FINDING:

In the instant case, I note that while there was a dispute between the Complainant and the Respondent regarding the number of excess holiday hours she had taken, which were to be deducted from her pay, the deduction had not taken place when the complaint was referred to the WRC. In the absence of any deduction, there can be no breach of the Act and the complaint is therefore not well founded.

CA-00043778-002:

THE LAW

Section 3 of the Terms of Employment (Information) Act 1994 sets out the basic terms of employment which the employer must provide to the employee in a written form within two months of starting the employment.

(1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say –

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

c)       the place of work or where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee’s contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof of, if the contract of employment is for a fixed term, the date on which the contract expires,

g)      the rate or method of calculation of the employee’s remuneration,

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to –

l)        (i)incapacity for work due to sickness or injury and paid sick leave, and

m)    (ii pensions and pension schemes.,

n)      the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

o)      a reference to any collective agreements which directly affect the terms and conditions of employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

The Act also requires this statement to be signed and dated by or on behalf of the employer and the employer is also required to retain a copy of this statement for the period of employment and for a period of 1 year after the employment ceases.

The Workplace Relations Act 2015 at section 41, in relevant part, provides as follows

(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.

FINDING:

The Complainant stated that the start date on her initial contract of employment with the Respondent which she signed on 23rd September 2016 and which began on 10th October 2016 was incorrect and that it should have been 27th July 2015. She asserted that the inclusion of this incorrect start date represented a breach of the Act.

Given that she signed the contract on 23rd September 2016 and that the complaint was not referred to the WRC until 27th April 2021, the complaint is out of time as it was not referred within the 12 month period set out in section 41 (8) of the Workplace Relations Act 2015 above.  

CA-00043778-001:

This complaint is not well founded for the reasons set out above.

CA-00043778-002:

I do not have jurisdiction to hear this complaint because it was submitted out of time.