Complainant

Respondent

Parties

Gijo George  Peedikamal

VHSI PCC Limited                             trading as Recovery At Home Ireland

Representatives

Arron Shearer BL

Robin Hyde Solicitor,                                          Alastair Purdy & Co

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-00049956-001

27/04/2022

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

CA-00049956-002

27/04/2022

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

CA-00049956-003

27/04/2022

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

CA-00049956-004

27/04/2022

This hearing was conducted over the course of two days. The first day was conducted in person in the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing. The second date was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. Members of the public were welcome to attend. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and where there is the potential for a serious and direct conflict in the evidence between the parties to a complaint, that an oath or an affirmation may be required to be administered to any person giving evidence before me. I confirm that I have in the circumstances administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statements or evidence is an offence.

The Complainant was fully represented. At the outset, the Complainant was happy to swear an Oath/ make an Affirmation to tell the truth. I was provided with and have considered two separate submissions  which were presented by the Complainant and are dated the 13th and the 15th of February 2023.

The Evidence adduced by the complainant was challenged as appropriate by the Respondent although a full cross examination was not opted for.

The Complainant alleges that he was employed by the Respondent company. Specifically he says that because the terms and conditions of his employment were not made known to him in a timely manner he had no idea that his expected hours of work and rates of pay were at odds with what he thought they should be.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

As part of this process, and in the interests of fairness, I reserved my right to amend the Workplace Complaint Form so as to include complaints (under other employment statutes) which appeared to have been articulated in the Statement/narrative but which had not been specifically particularised by this Complainant. In this regard I accept that the Complaint under the Terms of Employment (Information) Act, 1994 should relate to the core conditions to be delivered within 5 days of engagement.

The Respondent had representation at this hearing. The Respondent provided me with a comprehensive written submissions dated 14th of February 2023. I have additionally heard from a witness for the Respondent Audrey McDonnell who founded and is a Director of the company. All evidence was heard following an Affirmation/Oath. The Respondent witness was cross examined by the Complainant.

The Respondent rejects that there has been any contravention of the relevant Acts.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to and considered the evidence adduced in the course of this hearing. The Complainant herein came to work in Ireland in and around 2006. He has been registered as a nurse with the Nursing and Midwifery Board of Ireland since he commenced work in this jurisdiction and I have had sight of the relevant certificates for 2021, 2022 and 2023.

The Complainant has moved around in the course of his employment and has worked as an agency nurse. I understand that the Complainant has also worked directly as a psychiatric nurse in at least one mental health facility.

In and around October or November of 2021 his friend (an agency worker provider) introduced him to the Respondent company which is a company involved in the provision of professional healthcare in the home. As I understand it, the Respondent company is engaged (mainly by the HSE) to provide healthcare services to patients seeking to stay at home and be at home. Qualified nurses are dispatched around the country to provide nursing care as well as to administer medicines, antibiotics and other intravenous fluids. The Complainant believed that this was work which would be very suited to him as he had a car and was able to sign up for the long shifts involved and thereafter have time with his family.

The witness on behalf of the Respondent Ms. McD stated that the Respondent had used a number of recruitment agencies to source qualified nursing staff willing to carry out the work involved. She suggested that many agency workers took on the shifts as and when they had availability and to avail of the enhanced rates of pay. In fact, I understand that the rates of pay go up over periods such as Christmas as a further enticement to potential employees to perform the work that needs doing. Most of the agency staff have, she stated, other regular employment. I note that Ms. McD believed that the Complainant was also working in a mental healthy facility though the Complainant says he was not.

The Complainant says that he had had a discussion with a lady called Audrey (who is Ms. McD from the Respondent company) concerning the terms and conditions of engagement with the Respondent. The Complainant had thought that a full day of work was to attract a sum of €400.00 though in fact the Respondent says this was a misapprehension on his part as the going rate was €300.00 per day. Milage expenses were also to be paid at a rate of 30cent per mile per Ms. McD and not the 37cent the Complainant believed it to be.

The Complainant indicated his availability, and he says that he got a few shifts very quickly (possibly even in late October). Initially it seems to be the case that the Complainant was hired through an Agency and both parties accept that this was the case. However, Ms. McD accepts that the Complainant came directly onto the Respondent payroll as and from the 25th of November albeit he seems to have been still seen as an Agency worker at that time. However, I am attributing the calculation of the salary (as well as the associated deductions) to have been determined by the Respondent. The Complainant did not know the details as he was to be paid monthly in arrears.

The Complainant was added to the Whats App group and was getting scheduled to work in line with his availability.

I do not doubt that the Respondent company expected a considerable amount of work to be done in any single shift. The Complainant seemed to think that the distances to be covered were unreasonable. The Respondent says that it carefully calculated the mileage and care visit times so as to maximise any one shift. The Complainant appears to have fallen behind in the days plotted for him. There are, I would accept, inevitable delays in dealing with patients at home such as the need to take vitals (before and after the administration of drugs) or an unexpectedly slow drip. Sometimes, I would have thought, just being friendly and putting a patient at his or her ease is going to eat into valuable time.  In any event up until the date that the Complainant resigned this role I do not understand that the Complainant’s performance had been criticised.

The Complainant says that he flagged with the Respondent company that his car wasn’t good enough for all this mileage and that he was on the road too much. The parties gave conflicting evidence on the rates of pay (as above) and how mileage should be calculated. The Respondent says it only ever paid the 30cent per kilometer to any of it’s staff. The Respondent also stated through its witness, stated that it deducted the first half hour and the last half hour in the car as being the commute time for which it was not liable. The Complainant seemed to think that he was not getting paid for more significant periods spent in the car getting to the first job of the day or returning from the last job of the day. The Complainant says he was usually much longer than half an hour in the car getting to his first patient and returning home form his last patient.

Ms. McD appeared to also suggest that the rates of pay somehow included an element of annual leave and bank holiday entitlements though how and when this was explained to the Complainant is not clear. There is no corroborating evidence that either of these supplemental payments were factored into the monies that the Complainant did receive as remuneration.

The Complainant was unhappy with the Agency arrangement which he felt lacked transparency. He wanted to continue to work with the Respondent and he agreed with the Respondent that he would work directly with them. This conversation appeared to have taken place sometime in Mid-December and it seems to be common case that the Complainant was on the books as a full-time employee as and from the 20th of December 2021.

It is worth noting that the Respondent company had stated that it agreed that it would also pay the Complainant directly for a number of dates (up to twelve days) worked prior to the 20th of December without the need to involve the agency (or pay the agency it’s fee). In those circumstances and for the purpose of the Terms of Employment (Information) Act, 1994 I am satisfied that the Complainant was employed by the Respondent for more than one month and was therefore entitled to have his core terms clearly provided within five days of the 25th of November 2021.

Unfortunately, the two individuals with whom the complainant was dealing at this time were not available to give evidence. This was the Chief Operations Officer and the Duty Co-Ordinator. There is therefore no direct evidence of what information was given to the Complainant concerning his terms and conditions of employment. It has been suggested to me that the Complainant would have had sight of a prepared Contract of Employment, but this has not been established as a fact and the Complainant denies he saw anything.

It has also been suggested to me that a query was raised with they Complainant concerning his qualifications for the job. Again, there is no first-hand evidence of any query being raised.

The Complainant left this employment of the 4th of January 2022. An issue appears to have arisen on that date concerning the non-administration or late administration of medicine to patients and cover being required. I note that no issues concerning the Complainant’s performance arose before that date, and I do not intend getting into whatever might have occurred on the 4th of January 2022 as it is not within the remit of any of the Complaints before me.

The Complainant only received his remuneration after his employment ended. I can appreciate that it must have come as quite a shock to the Complainant that his rate of pay was so significantly less than what he had understood it would be. That is because he was paid €300.00 per diem and not €400.00 per diem. It is also clear that he was unaware that he would not get paid for a lunch hour and that and that he would not be paid for the first and last half hour of travel time. I have been shown no evidence that demonstrates that the Complainant knew or ought to have known what these material terms of his employment were. Had the Complainant been provided with information concerning the terms and conditions of his employment then some of the issues before me might well have been avoided.

I have been shown a chart (exhibit B3) which purports to explain how these deductions are made from the hours that the Complainant submitted. Of concern is the deductions simply referenced as “other” and which appear to have been deductions made without consultation with the Complainant and without explanation being given to the Complainant. These deductions therefore amount to unlawful deductions for the purposes of the Payment of Wages Act, 1991.

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

CA-00049956-001 - The Complainant was not provided with a Statement of certain core details concerning the employment within 5 working days of the employment commencing. The complaint is well founded and I direct compensation in the amount of €1,800.00 be paid to the Complainant.

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

CA-00049956-002 – Unlawful deductions were made and the complaint herein is well-founded and I direct that the Respondent pay to the Complaint the mount of €600.00.

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

CA-00049956-003 – The complaint concerning annual leave is well founded, and I require that the Respondent does pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances and in the amount of €450.00.

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

CA-00049956-004 – the particulars of this complaint concerning excessive hours were not set. I was not presented with a reference period. This complaint is not well founded.