ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00047220
Parties:
| Complainant | Respondent |
Anonymised Parties | Public Health Worker | Public Health Care Provider |
Representatives | Self | HR Corporate Employment Relations |
Complaint(s):
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-00058144-001 | 05/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00058144-002 | 05/08/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00058144-004 | 05/08/2023 |
Date of Adjudication Hearing: 01/12/2023
Workplace Relations Commission Adjudication Officer: Janet Hughes
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 Section 79 of the EmploymentEquality Acts, 1998 – 2015following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The Complainant requested that the decisions be anonymised due to some events occurring after she left the employment and which she relates to her making complaints. The Respondent did not agree that the complaints should be anonymised for the reasons provided by the Complainant The request on the stated grounds is rejected. However as there is a related dispute under the Industrial Relations Act 1969, which under that legislation must be anonymised have decided to exercise my discretion to anonymise the Decisions so that the parties to the Industrial Relations dispute are not identifiable through this decision. It is important that the privacy provided to the parties at first instance under the Industrial Relations Act is maintained, in the public interest, otherwise risking the undermining of a principal purpose of that other.
Background:
These complaints were submitted by a now former employee of the Respondent who resigned later in August 2023 giving two weeks’ notice. She had not resigned at the time of submitting the complaints to the WRC. The complaint concerning the terms of employment is one of an alleged change in terms without agreement. The complaint under the Payment of Wages Act was submitted as payment of the balance of a bonus was withheld and various delayed payments, underpayments for hours worked and issues with revenue as in not being recorded as working in 2022 or on the system operated by the revenue commissioners. Regarding the complaint under the Employment of Equality Act, the Complainant did not provide any evidence in respect of this complaint of victimisation for having made a complaint, saying that the only reason which could explain why a complaint this legislation is included could be that when completing the WRC form, she provided the information, and the system selected the legislation to which the complaint was to be related.
The Complainant was engaged for the Covid Vaccination Service, initially by a hospital group, commencing in 2021. In 2022, when the contract was renewed it by a community-based part of the same overall employment. It was in this latter service that the complainant experienced various issues which gave rise to her complaints and her industrial relations dispute.
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Summary of Complainant’s Case:
Terms of Employment Information Act 1994 as amended. The Complainant commenced employment with a hospital group in June 2021 where she was employed in the vaccination programme on a 39 hour week. She had no difficulties while attached to that service. The complaint form stated that she was not notified of any changes in her terms of employment. Acknowledging that she signed subsequent written documents where she was assigned to the successor service provider, she maintained that she and others had no option but to do so and in any event were not informed of the changes which subsequently occurred in terms of travelling to locations to provide the service and a significant reduction in her hours of work. The previous employer had provided a letter saying there would be no changes in the conditions. The two most recent documents provided to the hearing stated the hours of work would be limited to 24 hours. Employment Equality Act 1998 as amended The inclusion of a reference to this legislation was explained as caused by the way in which the WRC system operates. There was no evidence in support of a complaint under this legislation. Payment of Wages Act 1991,as amended. A bonus of €1000 was to be paid to staff in the vaccination service. In 2022 she received €600 leaving a balance of €400 owing to her. The Complainant queried the shortfall in an email but received no additional payment or reply. When informed by the HR representative at the hearing that the records had been checked and it was accepted that she was entitled to the full bonus amount and that the payment should be in her account on the day of the hearing, the Complainant queried why the money was only being made on the day of the hearing and after she had made her complaint to the WRC. On the other wages issues raised in the complaint and explained in evidence, the Complainant described difficulties she experienced and which she had raise with the Respondent regarding underpayments in wages versus hours worked, delays in receiving pay for hours worked an undercalculation of her annual leave entitlements and her difficulties with revenue where was recorded as not making any contributions in 2022 which in turn may have affected her medical/dental entitlements. These problems only occurred after she transferred from the hospital group programme. |
Summary of Respondent’s Case:
Terms of Employment Information Act 1994, as amended The Respondent denies any breach of the Act as contended by the Complainant. The Complainant was employed by a hospital group on a specified purpose contract. That contract allowed for reductions in hours and layoffs in a number of circumstances. Initially that employment contract was for 39 hours which reduced to 37.5 hours with the agreement on the restoration of shorter working hours in the employment generally. In March 2022, those vaccinators who were directly employed, including the Complainant, transferred to the local CHO. There was a reduction in the demand for the covid vaccination service plus additional work streams, for which some different qualifications were required. As a result of the changes, the contracted hours were reduced to 24 hours per week. The Complainant received further specified purpose contracts containing referencing 24 hours commencing on 30.06.22- 01.10.22-31.03.23. There were meetings with the staff affected by the change in governance and to discuss the changes generally. Employment Equality Act, 1998, as amended The Complainant did not make any complaint under the Employment Equality Act which could give rise to a complaint of victimisation for doing so. Payment of Wages Act 1991, as amended Any breach of the legislation in the case of the complainant is denied. The Respondent provided a detailed account of internal information concerning each point of complaint regarding wages/payments withheld or delayed. Aside from one payment or issue raised, the Respondent denied any unlawful deductions. Any issue regarding social welfare contributions is a matter outside of the control of the Respondent who made the necessary deductions. There may have been a breakdown between the systems in revenue and social welfare, but not on the part fo the Respondent. The Complainant had overclaimed on annual leave entitlements-there was no underpayment by the respondent. The varying hours and roster worked by the Complainant did result in delays in payments or undercalculations of hours due to late data entries. However, these were always rectified in the following pay period. In preparing for the hearing of the complaint, the Respondent, a review found that the Complainant was entitled to the full bonus payment based on her contracted hours. This was rectified and the €400 payment was to be made on the day of the hearing. This information was provided to the Complainant apparently by way of the Respondent submission.
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Findings and Conclusions:
Terms of Employment Information Act 1994 It may well be the case that the Complainant(and others) felt they had little option but to agree to the transfer from the employment in the hospital group to the CHO and neither had they any choice but to agree to the revised terms when they occurred. That the situation which developed following the transfer represented adverse changes in location and the requirement to travel to other locations which caused the Complainant some difficulties is also accepted as is the clear fact that her hours of work and her income did reduce from 2022 onwards. The complaint however must fail for the following reasons: A. The contract signed with the hospital group always provided for the possibility of reduced hours due to unforeseen circumstances. The reduction in the vaccination programme was one such event. Indeed, it was noted at the hearing that the decline in the programme resulted in the termination of the employment who were engaged on a third-party contract basis. That contract also provided for work in any location as required B. The Complainant was employed on contracts with specific end dates. There was no obligation on the Respondent to renew those contracts at all, or on the same terms as the contract which ended. C. The Complainant signed each document provided to her and, while she raised many issues with the Respondent in emails and in a formal grievance in 2023,there is nothing which suggests that she raised the change in the contract until making a complaint to the WRC some ten months after she signed the document containing the 24 hours, which suggests that she knowingly agreed to the terms provided to her. That signature represents her agreement to a replacement contract including the reduction in the hours.
Employment Equality Act 1998 While I am satisfied that there was no evidence to form the basis for a complaint of victimisation and indeed the evidence of the Complainant suggests there was no intention to submit such a complaint, a decision in the matter is required, as the complaint was not withdrawn prior to or at the hearing on 1 December 2023. Payment of Wages Act 1991 The complaints made regarding delayed payment or miscalculation of wages which were rectified in the following payroll and any complaint about underpayment of annual leave or the return of social welfare payments or deduction of income tax are not reasonable complaints of unauthorised deductions or payments withheld for the purposes of the Payment of Wages Act 1991. Some of these issues occurred outside the six-month cognisable period for the purposes of the Payment of Wages Act 1991. Others relate to statutory deductions which are not provided for in any compensation or unlawful deduction as defined under the legislation. I am however satisfied that the Complainant made a valid complaint of non-payment or deduction of €400 due to her under the covid scheme. I am further satisfied that, had she not made this complaint to the WRC, the issue might never have been rectified. The fact remains that the payment was withheld and albeit rectified some months later and therefore some compensation is due to the Complainant for the unauthorised deduction at the time it was made and ongoing until the date of the hearing. An additional payment of €200 in respect of the unauthorised withholding of the payment without her agreement, is considered reasonable in the circumstances. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
CA-00058144-001 Terms of Employment Information Act 1994 This complaint is not well founded for the reasons set out in the findings. CA-00058144-002 Employment Equality Act 1998 This complaint is not well founded for the reasons set out findings. CA-00058144-004 Payment of Wages Act 1991 The Respondent is to pay the Complainant €200 compensation in respect of the ongoing and eliberate deduction of €400 over an extended period from a bonus payment due to the Complainant. |
Dated: 19-12-23
Workplace Relations Commission Adjudication Officer: Janet Hughes
Key Words:
Change in terms of employment; withholding of bonus pay and other late payments. |