Complainant

Respondent

Parties

Kathleen Cafferky

Ability West CLG

Representatives

Aisling McDevitt IBEC

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-00038879-001

23/07/2020

The Complainant is claiming an entitlement to wages pursuant to the Payment of Wages Act, 1991

The Respondent submitted that the Complainant was not entitled to any payments pursuant to the Act.  The Complainant got a contract of employment on 8th April 2020 as a general support worker on a short-term relief contract. The contract was an “as and when” contract of employment, intended to expand the Respondent’s pool of relief workers during the Covid-19 Pandemic. The Complainant’s contract of employment terminated on 30th June 2022 without carrying out any work for the Respondent.  

The Complainant said that she was a volunteer with the Respondent. After the arrival of Covid she was emailed by the Respondent and asked if she was available to work should the need arise. It was a contract position. She completed an application form. She was told that she was successful and asked to send in her bank details. She then received a contract of employment in the post, and she presumed she was going to be called into work. She said that she sent in an email to enquire when she would be starting. She believed that she had work from April until the end of June. She said that she was never called in to work for the company, but she was available to work.  She is claiming that because she was available to work, and even though she was not provided with any work, she is entitled to wages from the 8th April to the 30th June for a 35-hour week at €12.54 per hour. 

In March 2020, in response to the evolving situation regarding the Covid-19 Pandemic, the Respondent formed an emergency staffing contingency plan to mitigate against the worst-case scenario effects of the emerging Covid-19 pandemic on its services. Like many similar organisations, the Respondent was confronted with extreme challenges, never faced before and was compelled to uncover creative solutions to be able to guarantee the delivery of services to some of the most vulnerable people in society.

 The Respondent’s Volunteer Manager identified a cohort of active volunteers who, with the provision of online training, may be suitable for basic support-type work in services, on an as-and-when basis. The Respondent, after expressions of interest from the volunteers, sent a letter dated 31st March 2020 to them explaining how it may be in a position to ‘fast-track’ them into employment as part of the staffing contingency plan. This letter stated,

“I’d like to give you a picture of what will be involved in the opportunity you have applied for. Those recruited for the General Support Worker roles on offer will be recompensed on the “Care Assistant-Merged” payscale and employed on an “if and when required” basis – relief contract.”

Approximately thirty of the cohort of volunteers, including the Complainant, applied, completed the basic pre-employment administration, and were issued with relief/ as-and-when contracts. This activity took place in the early weeks of April 2020, during a very daunting time for the Respondent’s services.

 With respect to remuneration, the Claimant’s contract of employment states;

“Salary: You will be remunerated at the following point for any relief hours worked in accordance with the hours worked at each grade, as laid out below:…..€12.54 per hour”

The Covid-19 pandemic situation evolved very quickly and with a high level of unpredictability and the HSE, initially insisted on the maintenance of Day Service operations in the early days of the pandemic. The HSE then decided in the early weeks of the pandemic to close conventional Day Services. This resulted in greater staff contingency capacity amongst the permanent contracted staff and the Respondent was able to redeploy day service staff to Residential Services (the respondent operates 29 HIQA Designated Centres across Galway City and County). Therefore, by mid-April 2020 the Respondent was in a better place than it had predicted at the time that the Complainant was issued her contract of employment.

The Respondent was anxious to keep its cohort of new General Support Workers, including the Complainant, up to date on the latest developments.  The Respondent wrote to them 22nd April to explain that it had “weathered the initial storm”, but that nevertheless would “remain on high alert” in terms of having the contingency to offer work to its General Support Workers, if and when required, in frontline services.

There was no requirement to offer hours of work to the Complainant, or others who took up relief contracts of employment as the need did not arise. Their contracts including the Complainants came to an end on 30th June 2020.

It was accepted by the Complainant that she did not work any shifts under her relief contract of employment. Therefore there is no wages are owing to her in circumstances where she did not work and the claim taken under the Payment of Wages Act, 1991 cannot succeed

The Law

 The Act defines wages as,

“any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice”.

The Complainant’s contract of employment is clear in stating wages are only payable in respect of hours work, and in outlining that the contract is an “if and when/ relief” contract. This was also expressly stated in correspondence from the Respondent. Therefore, there is no wages were owing to the Complainant under her contract of employment or otherwise.

Witness

Cathal Ester Director of Human Resources (Affirmation)

He said that at the start of the Covid-19 pandemic was an extraordinary time and if their business had to close they could not abandon the most vulnerable clients. The have 2 categories of staff, social care workers and care assistants.   A lot of their staff are part-time, and they also have relief staff who are called in when required.

They decided to create a general support category who would work alongside experienced staff offering this position to volunteer staff. There were 30 people put on the list and none of them were called in to work. Following the decision of the HSE that the day service would be closed, they were able to redeploy staff from the day service and there was no requirement to call upon the services of the panel of general support staff.

He said that they would have no hesitation in calling the general support staff including the Complainant into work but the need never arose.

The Payment of Wages Act provides at Section 5(1)

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) ….”. 

wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

The Complainant is claiming wages for the period 8th April to the 30th June 2020. I note her contract provided that she would be remunerated for hours worked. While the Complainant had a contract of employment from April to June 2020, I note that she did not carry out any work for the Respondent during this period because her services were not required. As the Complainant did not carry out any work, no wages accrued to her during this period as she was only paid for hours worked.  I am satisfied that the Complainant has not established any entitlement for wages for the period claimed.

I find that the complaint made pursuant to the Payment of Wages Act, 1991 is not well founded.

I find that the complaint made pursuant to the Payment of Wages Act is not well founded.

Payment of Wages Act, 1991. No hours worked, no entitlement to wages.