Complainant

Respondent

Parties

Maureen Power

Garryowen Community Development Project

Representatives

Limerick Council of Trade Unions

 Helix HR

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-00056224-001

19/04/2023

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

CA-00056224-002

19/04/2023

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

CA-00056224-003

19/04/2023

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

CA-00056224-004

19/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997

CA-00056224-005

19/04/2023

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

CA-00056224-006

19/04/2023

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

CA-00056224-007

19/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00056224-008

19/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056224-009

19/04/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056224-010

19/04/2023

Garryowen Community Development Project is a company limited by guarantee and one of its initiatives is the Parent Child + Programme designed to provide support to parents and their pre-school children in their homes.  The programme is run in collaboration with the National College of Ireland’s Early Learning Initiative and the College has developed training for employees assigned to work as home visitors.  Visits take place during the primary school term, from the beginning of September to the end of June each year.

The complainant is employed as a senior chef in the HSE.  In her evidence at the hearing, she said that she was looking for a job that she could enjoy in her retirement and, in February 2016, although she hadn’t retired, she was recruited as a home visitor on the respondent’s parent and child programme.  I note from the documents submitted by the complainant at the hearing that her contract indicates that her start date was March 1st 2015.  The complainant worked for an average of 31 hours a month and she was paid €13.25 per hour, resulting in an annual salary of approximately €5,000.  She said that she worked for the respondent on her days off from her full-time job.

Chronology Leading to this Complaint

Just before the onset of the Covid-19 pandemic in March 2020, the complainant was conducting home visits with two families.  Travel restrictions and not being able to meet in person meant that home visits were stopped and the complainant and her colleagues were temporarily laid off.  The complainant said that she was encouraged to keep in touch with her two families online or by telephone.  She included in her submission an email she sent to her line manager, Ms Gaffney, on June 6th 2020, in which she summarised her contact with her two families from March until the end of May 2020.  The families were not keen on keeping up telephone contact and Ms Gaffney replied that, since it was so near the end of June, that she should leave it until September to contact them again.

In early September 2020, the complainant attended two days’ refresher training to enable home visitors to support families remotely.  Around that time, she said that she had to have surgery, and that she would be absent as a result.  Two weeks after her surgery, the complainant said that she had to have the procedure done again.  On September 8th, Ms Gaffney replied to an email from the complainant and said, “let’s leave it for a week or two before you take on families.” 

On October 13th 2020, the complainant met Ms Gaffney, and they went for a walk and coffee.  Some of the client families were being supported with on-line sessions over Zoom, and, in her evidence, Ms Gaffney said that the complainant informed her that her internet at home was unsuitable for Zoom calls.  At the hearing, the complainant said that she offered to go to her local village and sit her in car and do the Zoom calls, but Ms Gaffney disputed this.  In her evidence, Ms Gaffney said that she told the complainant that it had been decided that home visitors would be required to undertake a level 6 qualification on the National Framework of Qualifications and that they would be required to take on more families.  She said that the complainant told her that she didn’t want too many families.

The complainant included in her submission an email dated December 3rd 2020 in which she asked Ms Gaffney, “is there any talk of the program going back to the families’ houses or hubs as we were doing or if the vaccination will change things.”  Ms Gaffney replied that two families had been removed from the programme because they had missed visits, and that she was “back-filling.”  She said that there was “no talk of going back in,” but she indicated that it may happen in September.

In June 2021, the complainant sought approval to do a training course, which she referred to as the “Daisy Programme;” however, Ms Gaffney said that this course was from an American programme and was not relevant to its services.  On June 9th 2021, Ms Gaffney wrote to the complainant and informed her that,

“We are currently managing to facilitate our family allocation with the staff we have so we are not in a position to offer training at this time.”

At the hearing, Ms Gaffney said that they were offering training to staff that were available to visit families and that the complainant had indicated that she wasn’t interested in taking on more families.  On June 14th 2021, the complainant wrote to the general manager, Mr Buttery, to ask him why she was removed from the register for training.  Mr Buttery said that he would reply to the complainant when he returned from leave.  The complainant received no response from Mr Buttery and, on October 4th 2021, she wrote to him again, seeking answers to 12 questions, including the critical question of whether “…I am still employed by the Garryowen CDP as a Parent Child + worker?”

Mr Buttery replied and said that,

“No work has been offered to you since October 2020 as you have not made any indication that (a) you would be willing to take on up to 10 families or (b) that you are willing and in a position to work remotely with families.”

In-person home visits resumed in April 2022, while the organisation continued doing video calls on Wednesdays.  At the hearing, Ms Gaffney said that they didn’t offer work to the complainant because they hadn’t heard from her.  On September 8th 2022, Mr Buttery wrote to the complainant to update her on the organisation’s plans regarding home visitors:

“I wanted to let you know that we are in the process of adding to our current panel of Home Visitors.

We have explained to you previously that we are expecting from members of the panel that they commit to taking on up to 10 families on caseload.  This situation has not changed.  We are also being required to ensure that Home Visitors commit to completing relevant accredited training at QQI Level 6.

I am therefore writing to you to ascertain whether you would be interested in staying on the panel of Home Visitors under the above conditions.  If you do not wish to remain on the panel or if I have not received a reply from you by 23rd September 2022, I shall remove you from the panel and consider any contractual arrangements at an end.”

The complainant replied on September 22nd 2022, stating that she thought she was still employed as a family visitor and that Mr Buttery’s offer to put her on a panel is not an offer of a job.  She said that if there was no work, then “this matter is a redundancy situation.”  On October 24th, the complainant wrote again to Mr Buttery to ask for confirmation regarding her average hourly rate of pay.

On October 27th, Mr Buttery wrote to the complainant to let her know that funding had been secured to provide home visitor services to more families and that visitors would be required to take on eight families.  The complainant was asked to contact Ms Gaffney if she wanted to start working again.  In her evidence, she said that she felt that there was no point in contacting Ms Gaffney.

On April 17th 2023, the complainant wrote to Mr Buttery seeking clarification about her position as a Parent Child + Worker with Garryowen CDP.  Mr Buttery replied on May 16th, stating as follows:

“As you are aware, I wrote to you on 8th September and again on 27th October last, offering you families to work with.  Neither I or Sue Gaffney received a reply to this offer and we have therefore come to the conclusion that you no longer wished to work with Garryowen CDP as a Home Visitor.  We shall not therefore, be opening up any further discussions regarding the possibility of working with us in the future.”

CA-00056224-001 

Complaint under section 6 of the Payment of Wages Act 1991

In breach of s.6 of the Payment of Wages Act 1991, the complainant claims that she received no wages after the two days of training she attended in September 2020.  In her evidence at the hearing, she said that, although she had poor broadband at home, she indicated to her line manager that she could sit in her car in her local village and contact families over Zoom from there.  In December 2020, she wrote to her manager asking if there was “…any talk of the program going back to the families houses or hubs” and she was informed that it would be September before that would be considered.  It seems however, that family visits didn’t start up again until April 2022.  In June 2021, Ms Gaffney wrote to the complainant to tell her that they had an adequate supply of home visitors to cover their current needs. 

CA-00056224-002, CA-00056224-003 and CA-00056224-004

Complaints under section 21 and 23 of the Organisation of Working Time Act 1997

In breach of s.21 of the Organisation of Working Time Act 1997, the complainant claims that she did not receive her entitlements in respect of public holidays and, in breach of s.23, she claims that she was not paid for public holidays or annual leave when her employment ended.

CA-00056224-005

Complaint under section 18A of the Organisation of Working Time Act 1997

In accordance with s.18A of the Organisation of Working Time Act 1997, the complainant claims an entitlement to be placed on banded hours.

CA-00056224-006

Complaint under section 3 of the Terms of Employment (Information) Act 1994

In breach of s.3 of the Terms of Employment (Information) Act 1994, the complainant claims that she was not notified in writing of a change in her terms and conditions of employment.

CA-00056224-007

Complaint under section 6 of the Unfair Dismissals Act 1977

The complainant claims that she was dismissed on May 16th 2023, when the general manager, Mr Buttery, wrote to her to confirm that they would not engage in further discussions about the possibility of work. 

CA-00056224-008

Complaint under section 6 of the Employment Equality Act 1998

The complainant claims that she was discriminated against when her employer did not provide her with training.  Because the complainant was not at work, she was not offered training.

CA-00056224-009 and CA-00056224-010

Complaint under section 4 of the Minimum Notice and Terms of Employment Act 1973

In breach of s.4 of the Minimum Notice and Terms of Employment Act, the complainant claims that she did not receive notice of the termination of her employment and she was not paid in lieu of notice.

In a submission provided in advance of the hearing, the respondent stated that the complainant’s contract provided that she was employed on a part-time basis and that her “hours of work will vary on a weekly basis.”  Home visitors were required to visit their allocated families twice a week for two half-hour sessions.

CA-00056224-001 

Complaint under section 6 of the Payment of Wages Act 1991

In her evidence, Ms Gaffney said that, while home visits resumed in April 2022, they had no contact from the complainant since the previous April.  Ms Gaffney disputed the complainant’s evidence that she offered to sit in her car in her local village where she could get internet access to conduct meetings online with families.

CA-00056224-002, CA-00056224-003 and CA-00056224-004

Complaints under section 21 and 23 of the Organisation of Working Time Act 1997

It is the respondent’s position that the complainant did not work on public holidays and she did not work the requisite number of hours in advance of a public holiday to qualify for public holiday pay.  She received her entitlement to annual leave when she was paid 8% of her working hours as holiday pay.

CA-00056224-005

Complaint under section 18A of the Organisation of Working Time Act 1997

In his submission on behalf of the respondent, Mr Cusack said that the complainant did not request to be placed on banded hours.  Her contract was based on an understanding that her hours would vary depending on the number of families willing to accept visits and the availability of funding.

CA-00056224-006

Complaint under section 3 of the Terms of Employment (Information) Act 1994

In response to the complaint under the Terms of Employment (Information) Act, Mr Cusack said that the complainant was issued with a new contract of employment on July 28th 2018 to take account of a change in her rate of pay and because data protection requirements had been changed and her entitlement to holiday pay had not been clearly specified in the first version of her contract issued on February 10th 2018.

CA-00056224-007

Complaint under section 6 of the Unfair Dismissals Act 1977

It is the respondent’s position that the complainant was not dismissed.  Aside from this assertion, on behalf of the respondent, Mr Cusack argued that, as the complainant claims that she was dismissed in September 2020, her complaint is outside the time limit for submitting complaints under s.8(2) of the Unfair Dismissals Act 1977.

CA-00056224-008

Complaint under section 6 of the Employment Equality Act 1998

It is the respondent’s position that the complainant was not discriminated against.  Mr Cusack submitted that the complainant was not denied training, but that she attended all the training that was appropriate for her job.  The “Daisy” programme which the complainant identified as suitable training was an automated programmed from the United States which was developed for supervisors and managers of schemes such as the Early Learning Initiative.  The Daisy programme was not approved training for home visitors.  In his evidence at the hearing, Mr Buttery said that, for the duration when home visits were conducted over Zoom, training was provided to the home visitors who were available to do the Zoom meetings.

Apart from its assertion that the complainant did not suffer any discrimination at the hands of the respondent, Mr Cusack submitted that this complaint is outside the time limit for submitting complaints under the Employment Equality Acts.

CA-00056224-009 and CA-00056224-010

Complaint under section 4 of the Minimum Notice and Terms of Employment Act 1973

As the complainant was not dismissed, it is the respondent’s position that the issue of entitlement to notice of the termination of her employment does not arise.

CA-00056224-001 

Complaint under section 6 of the Payment of Wages Act 1991

On the form she submitted to the WRC, under the heading of the Payment of Wages Act 1991, the complainant claims that she wasn’t paid in lieu of notice of the termination of her employment.  However, at the hearing on November 15th 2023, she said that this complaint is about the respondent’s decision not to pay her any wages after she completed two days of training in September 2020.  Her complaint about the respondent’s alleged failure to pay her in lieu of notice is complaint number CA-00056224-010.

This complaint was submitted to the WRC on April 19th 2023, and therefore, the timeframe within which I may consider a contravention of the Payment of Wages Act is the six months from October 20th 2022 until April 19th 2023.  On September 8th 2022, the manager, Mr Buttery, wrote to the complainant to inform her that there were additional places on the panel of home visitors and that, if she was interested in remaining on the panel, she would be expected to take on up to 10 families and to undertake level 6 QQI training.  The complainant did not reply.  At the hearing, she claimed that an offer to be placed on a panel was not an offer of a job.  I do not accept this response, because, it is apparent from MR Buttery’s letter that he asked the complainant if she was interested in staying on the panel.  It is clear from the complainant’s contract that she was employed based on the number of families seeking home visits and the availability of funding.  From the start of her employment, she was effectively, “on a panel.”

On October 27th 2022, Mr Buttery wrote again to the complainant to let her know that additional funding had been allocated to the organisation to provide more home visits and she was asked to indicate her availability to take on families.  The complainant was asked to contact her line manager to indicate her interest in resuming work.  At the hearing of this complaint, she said that she didn’t see any point in contacting Ms Gaffney. 

Section 5(6) of the Payment of Wages Act addresses the circumstances in which wages which are properly payable are not paid:

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

It is apparent therefore that, if I find that wages that were “properly payable” to the complainant were not paid, I must conclude that there has been a deduction from her wages.  Section 5(1) of the Act provides that, apart from tax, PRSI and USC, unless there is a provision in an employee’s contract of employment to deduct wages, without the employee’s written consent, a deduction may not be made. 

Every contract of employment is based on an agreement by an employee to attend work and to carry out work, in return for an agreed sum in wages.  While she was not at work, the complainant’s wages were not properly payable, meaning that she had no legal or contractual entitlement to wages.  As this condition of being “properly payable” has not been met, it follows that there was no deduction from wages which were not due.

CA-00056224-002, CA-00056224-003 and CA-00056224-004

Complaints under section 21 and 23 of the Organisation of Working Time Act 1997

The complainant did not work on public holidays, and, in the six months prior to these complaints being submitted to the WRC, she did no work at all for the respondent.  I do not accept her assertion that she was not allowed to work, because I am satisfied that she did not respond to an invitation to work.  I find therefore, that the complainant’s claim that she was entitled to pay for public holidays and that she was not paid for public holidays when her employment ended is not well founded.

Similarly, in relation to annual leave, the complainant argued that she wasn’t allowed to work and that this impacted on her entitlement to public holidays.  I find that this argument is without merit, because the complainant was invited to contact her manager in September 2022 to discuss returning to in-person home visits.  I understand from the respondent’s submission at the hearing, that the complainant’s entitlement to annual leave was paid based on a payment of 8% of the hours she worked.  As this is in accordance with s.19(1)(c) of the Organisation of Working Time Act 1997, I find that the complainant’s claim that she was not compensated for her entitlement to annual leave when her employment ended is not well founded.

CA-00056224-005

Complaint under section 18A of the Organisation of Working Time Act 1997

In accordance with s.18A(2) of the Organisation of Working Time Act, an employee whose hours vary may request their employer, in writing, to be placed on a band of hours.  While she was employed by the respondent, the complainant did not submit a written request for banded hours and I find therefore, that her complaint under this heading is not well founded.

CA-00056224-006

Complaint under section 3 of the Terms of Employment (Information) Act 1994

It was apparent from the complainant’s evidence at the hearing, that she accepts that she was issued with a contract of employment at the commencement of her employment and that she was issued with a new contract in July 2018, when her hourly rate of pay increased and some changes were made to the respondent’s data protection policy and when the policy on holiday pay was clarified.  There was no change to the complainant’s terms and conditions of employment to merit a complaint under the s.3 of the Terms of Employment (Information) Act and I find therefore, that this complaint is not well founded.

CA-00056224-007

Complaint under section 6 of the Unfair Dismissals Act 1977

At the hearing, the complainant argued that her dismissal became effective on May 16th 2023 when Mr Buttery wrote to her to say that the organisation would not “be opening up any further discussions regarding the possibility of working with us in the future.”  I do not accept the complainant’s argument that, she was dismissed by this letter.  It is my view that she was not dismissed, but that she left her job when she failed to respond to written requests in September and October 2022, to indicate her interest in returning to in-person home visits.

Leaving that conclusion aside, this complaint was submitted to the WRC on April 19th 2023, four weeks before the complainant claims that she was dismissed.  For this reason, I find that this complaint regarding unfair dismissal on May 16th 2023 is misconceived.    

CA-00056224-008

Complaint under section 6 of the Employment Equality Act 1998

The complainant claims that she was discriminated against when she was not provided with training.  She did not argue that she was discriminated against on any of the protected grounds set out at s.6 of the Employment Equality Act and, for this reason, this complaint cannot succeed.

CA-00056224-009 and CA-00056224-010

Complaint under section 4 of the Minimum Notice and Terms of Employment Act 1973

As the complainant was not dismissed, she is not entitled to notice of the termination of her employment.

I have considered the 10 complaints submitted by the complainant and I decide that none are well founded.

Dismissal, payment of wages, wages properly payable, notice, banded hours, holiday pay, public holiday pay, holiday pay at cessation of employment, statement of terms and conditions of employment