ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00025777

Parties:

	Complainant	Respondent
Parties	Evah Budala	Acess Nursing Limited

	Complainant	Respondent
Anonymised Parties	Evah Budala	Access Nursing Limited

Representatives

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00032778-001	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00032778-002	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00032778-003	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00032778-004	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00032778-005	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00032778-006	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00032778-007	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00032779-001	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00032779-002	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00032779-003	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00032779-004	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00032779-005	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00032779-006	06/12/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00032779-007	06/12/2019

Date of Adjudication Hearing: 28/03/2022

Workplace Relations Commission Adjudication Officer: Michael Ramsey

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant has submitted various overlapping complaints under the Organisation of Working Time Act, 1997, Terms of Employment (Information) Act, 1994, Payment of Wages Act, 1991, Unfair Dismissals Act, 1977.

For the avoidance of doubt and eliminating all the various duplications, the relevant complaints to be dealt with are CA-00032778-001, CA- 00032778-003, CA-00032778-006 and CA-00032778-007. These matters were initially heard on the 12th August 2020 and the Complainant withdrew CA- 00032778-002, CA-00032778-04 and CA-00032778-005.

In relation to this matter herein, CA-00032779-001, CA-00032779-002, CA-00032779-003, CA-00032779-004, CA-00032779-005, CA-00032779-006 and CA-00032779-007 are duplications and are withdrawn.

Summary of Complainant’s Case:

The Complainant, who represented herself, commenced employment with the Respondent as a psychiatric nurse on the 11th April 2019. The Complainants employment ended on the 18th September 2019

On the 12th August 2020 the Complainant alleged that the Respondent did not pay her the agreed rates per hour and the total sum owing to her was €4,796.00. The Complainant worked mainly in Orpesa Cluan Mhuire and Tallaght Hospital but also in Highfield Hospital and the National Rehabilitation Centre.

In relation to the Complainants day shifts in Oropesa, the Complainant stated she was supposed to be paid €32.00 per hour and her daily pay should be €384.00 but her payslip stated €341.12. Accordingly, the Complainant calculated, for 26 days she was owed €1,092.00.

In relation to the Complainants Sunday day shifts in Oropesa, the Complainant stated she was supposed to be paid €42.00 per hour and her daily pay should have been €504.00 but her payslip stated€447.00. Accordingly, the Complainant calculated, for 2 days she was owed €114.00

In relation to the Complainants night shifts in Oropesa, the Complainant stated she was supposed to be paid €35.00 per hour and her daily pay should have been €420.00 but her payslip stated €373.10. Accordingly, the Complainant calculated, for 28 nights she was owed €1,316.00

In relation to the Complainants Sunday nights in Oropesa, the Complainant stated she was supposed to be paid €45.00 per hour and her daily pay should have been €540.00 but her payslip stated €373.10. Accordingly, the Complainant calculated, for 3 nights she was owed €498.00.

In relation to the Complainants day shifts in Tallaght Hospital, the Complainant stated she was supposed to be paid €34.00 per hour and her daily pay should be €408.00 but her payslip stated she was being paid between €355.00 and €348.00. Accordingly, the Complainant calculated, for 16 days she was owed €960.00.

In relation to the Complainants Sunday day shifts in Tallaght Hospital, the Complainant stated she was supposed to be paid €37.00 per hour and her daily pay should have been €444.00 but her payslip stated she was being paid between €352.00 and €361.00. Accordingly, the Complainant calculated, for 3 days she was owed €276.00.

In relation to the Complainants Sunday nights in Tallaght Hospital, the Complainant stated she was supposed to be paid €44.00 per hour and her daily pay should have been €528.00 but her payslip she was being paid between €348.00 and €361. Accordingly, the Complainant calculated, for 3 nights she was owed €540.00.

The Complainant alleged in written submissions provided that her all payslips had been falsified.

On the 12th August 2020, following discussions between the parties a monetary settlement was reached and the Complainant sought a delay in the implementation of said settlement in relation to the movement of her tax credits and standard rate tax bands to the Respondent before any payment. However, the Complainant informed the Workplace Relations Commission on the 13th August 2020 that, upon reflection, she was not accepting the offer. The Complainants legal representatives informed the WRC by letter dated the 28th August 2020 that she required these matters to be relisted for hearing.

Upon this matter being relisted for hearing, the Complainant provided further written submissions and alleged that the sum owing to her was €10,973.00. This Complaint calculated this figure as a sum of deficits of €4,796.00, €1,790 of Holiday Pay, €544 of Upping of Hours and €3,843.00 of “costed holiday pay/weekly payslips”.

These Complaints were received on the 6th December 2019.

Summary of Respondent’s Case:

The Respondent, who were represented by Brian Solan and Ryan O’Flaherty, submitted that they had set out, as per their email of the 19th June 2019, the exact breakdown of the Complainants pay without holiday pay, showed the holiday pay element and reconciled to the total amount paid. After this communication the Complainant continued to accept offers of shifts and could have refused these shifts if she was unhappy with the rate paid without holiday pay. However, the Complainant continued to work said shifts. The Respondent submitted that they were prepared to add an additional payment for all shifts worked from the 23rd June 2019 and offered the sum of € 1,315.28. This sum was calculated as €1,207.04 (37.72 hours at a rate of €32.00) plus €144.24 (short pay).

The Respondent clarified, as per their email of the 11th February 2020, that they have never and will never falsify payslips as the Complainant had alleged.

Ultimately, the Respondent proposed the sum of €2,748.38 in order to resolve the aforementioned complaints. This sum was calculated a sum of €648.70 (19.08 hours at a rate of €34.00 for Tallaght Hospital), €1,790.72 (55.96 hours at a rate of €32.00 for other hospitals) and €374.88 (uplift of increase in Tallaght hours to 12 and correction of rates.

The Respondent submitted that, upon the relisting of this matter following the Complainants withdrawing from the previous settlement, the figure the Complainant now sought in satisfaction of her Complaints was the doubling of the previous amount calculated without any explanation.

It is the respondents position that the Complainant is entitled to the sum of €2,748.38.

Findings and Conclusions:

In the circumstances of this matter, I have carefully listened to the evidence tendered in the couse of both hearings by both parties.

It is necessary to examine the facts giving rise to this complaint in light of the relevant legislative provisions for the material time of this complaint. Section 1(i) of the Payment of Wages Act 1991 defines ‘wages’ in relation to an employee 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: Provided however that the following payments shall not be regarded as wages for the purposes of this definition: (i)any payment in respect of expenses incurred by the employee in carrying out his employment, (ii)any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office, (iii)any payment referable to the employee's redundancy, (iv)any payment to the employee otherwise than in his capacity as an employee, (v)any payment in kind or benefit”

Section 5(1) of the Payment of Wages Act 1991 provides: “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.” The remainder of the Section 5 provides for other circumstances in which an employer can make a lawful deduction from an employee’s wages which are not applicable to the instant case.

In the circumstances of this case, I am satisfied that the Respondent did not falsify any payslips as alleged by the Complainant.

I find that the Complainant is entitled to the payment of €2,748.33 as previously proposed by the Respondent in satisfaction of the aforesaid Complaints.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Complaints (CA-00032788-001, CA-00032788-003 and CA-00032788-006) made pursuant to Section 6 of the Payment of Wages Act, 1991 are well founded and award the Complainant the sum of €2,748.38

Dated: 25/09/2023

Workplace Relations Commission Adjudication Officer: Michael Ramsey

Key Words:

Pay