Complainant

Respondent

Parties

Maria  Hayes

Komfort Kare

Representatives

David Nugent BL instructed Cyril & Co

Valerie Morrison Peninsula Business Services Ireland

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-00048243-001

20/01/2022

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

CA-00048243-002

20/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00051450-001

30/06/2022

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

CA-00051450-002

30/06/2022

The Complainant worked for the Respondent home care company from 27th of August 2020 to 18th of March 2022.

The complainant submitted a series of complaints to the WRC on the 20th of January 2022 and 30th of June 2022.

The first set of complaints concerned an alleged failure under the Terms of Employment (Information) Act to issue with her with written terms of employment and then a further failure to properly update those terms.

The second set of complaints concerned a series alleged of breaches of the Organisation of Working Time Act and which then allegedly culminated with the Complainant’s constructive dismissal under the Unfair Dismissals Act.

At the outset of the hearing the Complainant withdrew her constructive dismissal complaint (CA-00051450-001).

The hearing then heard extensive evidence from both sides however this mostly concerned alleged failures relating to excessive working time, which were supposed to have occurred in 2021. As the Organisation of Working Time Act complaints were submitted on the 30th of June 2022 these issues fell outside the cognisable period.

Ultimately three issues were properly before me in this hearing. The complaints under the Terms of Employment (Information) Act, the Organisation of Working Time Act complaint that the Respondent allegedly failed to pay annual leave and public holidays.

The Complainant’s representatives made written submissions and the Complainant gave evidence under affirmation.

She had worked in the home care sector for a number of years and was poached to join the Respondent company which was a recent start up. She was part of a core office team which oversaw recruitment and allocation of carers.

She had initially joined on the basis of a €35,000 per annum salary but when she got her contract this was instead identified as a €30,000 salary with a €5,000 on call allowance.

There was an alternating on-call responsibility every second week and TOIL for weekend work.

At times the on call could be very onerous. If a carer would ring in sick, they would have to scramble to replace them and in some cases the Complainant would have to go out and cover herself. Often, she would be unable to get her time off in lieu for the weekend work and still have to work the following Monday and Tuesday.

After a point she moved to Fridays off, this was to facilitate her caring for a family member. At the time her salary didn’t drop in recognition of the work she was doing. She believed the position was permanent. The Complainant was called into a meeting in late 2021 and some 5 or 6 months after the new working hours had started, that the 3 month trial was over and she would need to return to working Fridays. The alternative would be that she would have to take a salary reduction.

Ultimately she went on sick leave and later resigned from the company following the stress of these interactions.

The Respondent made detailed written submissions and Ms Brenda Kavanagh gave evidence under oath.

She disputed the Complainant’s account of the on-call arrangements and TOIL. Indeed, the on call arrangement significantly reduced shortly after the Complainant joined. The Complainant knew the business well and knew what these roles entailed.

Ultimately the Complainant became unwell and left the business.

She accepted that the Complainant was owed some 9 days leave including the Christmas time public holidays.

Terms of Employment (Information) Act CA-00048243-001

This complaint concerns section 5 of the above act. Namely:

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

The Respondent argues that the Complainant has failed to sufficiently particularise her Complaint ahead of the hearing and relies on the Labour Court’s decision in Abel Security v Langsteins (DWT1319).

On review of the Complainant’s evidence and submissions it is clear that this concerned the temporary move to a 4 day week and the terms of this move. The Respondent has failed to provide any documents outlining these changes issued to the Complainant herself. They further failed to state in writing that this change was temporary until they sought to bring the Complainant back to a 5-day week or reduce her salary.

This would appear to a breach of the act, in particular I note that it had a significant impact on the Complainant and was pivotal to the breakdown in her relationship with the Respondent.

Section 10 of this act gives me the power to award compensation. Having regard to all the circumstances I believe four weeks renumeration as compensation is warranted. 

Terms of Employment (Information) Act CA-00048243-002

This complaint concerns section 3 of the act and the failure to furnish a written statement of employment. I am satisfied that on the balance of probabilities the Complainant was sent the contract provided by the Respondent.

The Complainant has sought to point out a number of particulars required by the legislation which the Respondent failed to specify in this contract. The Respondent seeks to rely on the Labour Court’s position as set out in Irish Water v Hall (TED161), specifically that any breaches are of a technical nature and the de minimis rule should apply.

While I agree with the Respondent on a number of these issues, I do disagree in one key aspect.

That is the requirement on the Respondent to particularise any terms or conditions relating to hours of work (including overtime),

A significant aspect of this case concerned disputes about the operation of what appears to have been quite an onerous on call arrangement and associated TOIL benefit. I can see nowhere where this is properly laid out in appropriate detail to the Complainant.

I consider this omission to be a breach of Section 3 and award a further two weeks remuneration for the breach.

Unfair Dismissals Act - CA-00051450-001

The Complainant’s representative indicated that she would not be pursuing this complaint. As such it fails.

Organisation of Working Time Act - CA-00051450-002

Much evidence was adduced about the Complainant’s working hours and rest periods. This was largely irrelevant in the context of the specific complaint filed on her behalf. This complaint concerned her accrued leave and public holidays and was filed on the 30th of June 2022.

The Respondent has conceded they owe her 9 days annual leave and public holidays. Ms Kavanagh suggested under evidence that they only recently could determine that this is what she was owed. This is simply not credible. In particular, I note that the Respondent failed to pay the Complainant’s Christmas public holidays and other leave booked to cover that period. I can see no reason for this as the Complainant had only gone on sick leave a couple of weeks previously and they were required to run payroll to pay the Complainant her HSE Covid bonus payment of €1000 at that time.

While I accept Christmas Day and St Stephen’s day themselves fall outside the cognisable period, the Complainant was paid in arrears so it is likely the breach of the act, that is the failure to pay, occurred within the cognisable period.  

I note that the Respondent has failed to produce proper leave records and instead seek to rely on Ms Kavanagh’s diary and various references to emails or the one touch monitoring system in place, to argue that the Complainant’s outstanding leave was 9 days. Section 25 of the Act requires that an employer keep proper leave records. However, the Complainant has similarly failed to properly specify what annual leave was owing.

In the circumstances I am of the view that an award of four weeks pay is appropriate to compensate the Complainant for the breach of her rights.

Both parties agree that the Complainant’s salary was €683 per week.

CA-00048243-001

I find that the complaint is well founded and direct the Respondent to pay the Complainant €2732 in compensation.

CA-00048243-002

I find that the complaint is well founded and direct the Respondent to pay the Complainant €1366 in compensation.

CA-00051450-001

I find that the complaint is not well founded.

CA-00051450-002

I find that the complaint is well founded and direct the Respondent to pay the Complainant €2732 in compensation.