Complainant

Respondent

Parties

Patricia Barrett

Camphill Communities of Ireland

Representatives

Ger Malone, SIPTU

Sarah Conroy, Beale & Company

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00041145-001

19/11/2020

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

CA-00041145-002

19/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00041145-004

19/11/2020

The respondent is a company limited by guarantee that owns and operates residential communities for people with intellectual disabilities.  It receives funding from the HSE to carry out this work.  On October 31st 2018, the complainant commenced working as a tutor in organic gardening at the respondent’s day service in Thomastown, County Kilkenny.  She was contracted to work for 19 hours a week at an hourly rate of €15.00.  She was paid €570 every fortnight.  The complainant resigned on November 10th 2020, nine days before these complaints were submitted to the WRC.

Due to the closure of the garden at the onset of the Covid-19 pandemic, the complainant’s hours were reduced to 10 hours a week.  Under the Payment of Wages Act, she claims that this resulted in a shortfall in her wages.  In breach of the Terms of Employment (Information) Act, she claims that she was not given written notice of changes to the statement of her terms and conditions which she received at the commencement of her employment.  Thirdly, in breach of the Organisation of Working Time Act, she claims that her holiday pay was not correctly calculated.

From February to May 2020, the complainant was absent from work due to an injury.  Before she returned to work in May 2020, she met her manager who informed her that, due to Covid-19 restrictions, only 12 hours’ work was available every week.  She was told that all the staff had their hours reduced and that the garden had been allocated a number of hours.  The complainant said that, because of her childcare arrangements, she couldn’t do 12 hours a week, but that she could come in for 10 hours.

When she returned to work, the complainant’s hours were reduced from 19 to 10 hours a week.  By mid-June, she said that she could have gone back for 19 hours and she could have done other work. 

On September 11th 2020, the complainant submitted a grievance about the reduction in her hours; she asked to be redeployed to another role and she also said that there was work that needed to be done in the garden for 19 hours a week.

The complainant said that she resumed working her contractual 19 hours a week in September, as soon as her childcare arrangements were sorted out.  For 19 weeks, from May 19th to September 28th 2020, due to her reduced  hours, the complainant claims that she was left short in her wages of €2,565.

On behalf of the complainant, Ms Malone said that there is no provision in the complainant’s terms and conditions of employment that permits a reduction in her hours by almost 50%.  Ms Malone referred to the decision of the Employment Appeals Tribunal in John Grimes v Iarnród Eireann[1] where the Tribunal concluded that the notice issued to Mr Grimes concerning a reduction in his wages was a defective notice.  Ms Malone pointed out that the complainant wasn’t issued with any notice to inform her that her wages were reduced.  The union’s position is that there was an unlawful deduction from the complainant’s wages.

Included in the respondent’s book of documents is an email from the complainant to her manager dated May 11th 2020.  The complainant wrote to her manager as follows:

Dear Dorothee (sic), due to covid-19 and the unavailability of childcare I am unavailable to meet my full contractual hours.  I am in a position to work 10 hours per week at present.

Thank you

Patricia

The respondent said that it is clear from this email that the complainant was not available to work 19 hours a week and that she requested a reduction to 10 hours.  During the Covid-19 restrictions, the garden where the complainant worked operated with a skeleton staff.  At the hearing, Ms Gorman said that for some of the time during the pandemic, the service users were not at their day service.  Employees who were affected by the reduction in their hours of work could apply for the pandemic unemployment payment (PUP).  The complainant returned to working 19 hours a week in September 2020.

From the email of May 11th 2020 which the complainant sent to her manager, it is apparent that she requested a reduction in her hours of work.  At the  hearing, the complainant said that she met her manager in May 2020 before she returned after being absent due to illness.  She said that her manager said that she was required to work only 12 hours a week, but this was not suitable, and she needed to reduce her hours to 10.  By the middle of June, she said that she could have resumed working 19 hours, but this wasn’t permitted.

It is my view that this complaint is not a matter for adjudication under the Payment of Wages Act, but rather, is an industrial relations issue related to a change in the complainant’s weekly working hours.  The complainant was paid for all the hours she worked, and I find therefore, that there is no substance to the argument that, in breach of section 6 of the Payment of Wages Act, she did not receive wages which were properly payable.

I have concluded that the respondent was not in breach of section 6 of the Payment of Wages Act 1991, in relation to the reduction in the complainant’s hours during the early part of the Covid-19 pandemic between May and September 2020.  I decide therefore, that this complaint is not well-founded. 

This complaint is about the failure of the respondent to give the complainant a written notice of the change to her hours of work in May 2020.

A second complaint under this heading relates to the failure of the respondent to notify the complainant in writing of the decision to change her pay frequency from weekly to fortnightly.  At the hearing, Ms Malone said that the employees did not agree with this change and that the issue was referred to the WRC.  In an email to me from Ms Malone on November 30th 2021, she said that the change from weekly pay to fortnightly pay commenced on February 28th 2020.

Thirdly, the respondent did not provide the complainant with written notice of changes to the sick pay scheme.  The entitlement to paid sick leave was reduced from three months in a period of 12 months to 15 days in 12 months.

In response to this complaint, Ms Conroy referred to the email from the complainant dated May 11th 2020 in which she asked to reduce her working week to 10 hours.  The respondent’s case is that this was facilitated at the request of the complainant and that written notification was not required.

Regarding the respondent’s decision to change the pay frequency from weekly to fortnightly, Ms Gorman said that the company had 16 autonomous payrolls and that they had to be consolidated into one payroll.  She said that a lot of information was sent to employees in preparation for this.  They also had talks with their employees and they sent explanatory memos.  They offered a loan of one week’s pay to support employees with the change from weekly to fortnightly pay.

Section 5 of the Terms of Employment (Information) Act 1994 provides that an employer must notify an employee in writing if there are changes in the details provided in a statement of terms and conditions of employment.  A copy of the complainant’s contract was submitted in evidence and it is apparent that it was agreed at the time of her recruitment that she would be working for 19 hours a week.  The complainant’s contract also provides that her wages would be paid weekly.  Finally, her contract provided that, in the event of absence due to illness, as long as she had completed 12 months’ service, at the discretion of the management, she would be paid for three months in any 12 months.

From the evidence given by the complainant at the hearing, I understand that, in May 2020, it was the respondent’s intention to reduce her weekly hours from 19 to 12.  The complainant opted to work for 10 hours.  While I accept that the complainant asked to work for 10 hours a week, no evidence was submitted by the respondent that they informed her in writing of the proposal to change her hours of work.

I note the evidence of the CEO, Ms Gorman, that employees were informed by email and at meetings, of the company’s decision to change the pay frequency from weekly to fortnightly.  No evidence of any communications about this change was submitted at the hearing.  However, as the change from weekly to fortnightly pay commenced on February 28th 2020, I find that this part of the complaint has been submitted outside the time limit set out at section 41(6) of the Workplace Relations Act 2015.

The third element of this complaint relates to the respondent’s decision to change the entitlement to sick pay from three months to 15 days.  No evidence was provided to show that the complainant was informed in writing of this change.

Having enquired into this matter, I find that the respondent was in breach of section 5 of the Terms of Employment (Information) Act with regard to two of the three changes in the complainant’s statement of her terms and conditions of employment.

I decide that this complaint is well-founded and I direct the respondent to pay the complainant compensation of €855, equivalent to three weeks’ pay.  As this award is made by way of compensation for a breach of a statutory entitlement, it is not subject to any statutory deductions.

This complaint is about the fact that, due to a reduction in the complainant’s hours of work, her entitlement to holidays was also reduced.  She claims pay for 19 hours of holidays which she lost as a result of the reduction in her hours of work.

The respondent’s position is that the complainant’s hours were reduced at her request and that they have no case to answer with regard to the issue of the reduction in  her holiday entitlement.

I do not accept the entirety of the respondent’s evidence that it was solely at the request of the complainant that her hours were reduced.  It is apparent that there was a need to reduce the working hours of some employees when the service users were prevented from having access to the garden in Thomastown.  I am satisfied therefore, that there was a genuine need to reduce the complainant’s hours of work during the Covid-19 pandemic.  I find that, as the complainant did not work her normal hours from May to September 2020, she did not accrue the holidays that would have normally accrued.

I decide that this complaint is not well-founded.

Reduced hours, statement of terms and conditions of employment