CORRECTION ORDER
ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997 AND SECTION 41 OF THE WORKPLACE RELATIONS ACT 2015
This Order corrects the original Decision ADJ-00041401 issued on 01/09/2023 and should be read in conjunction with that Decision.
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041401
Parties:
| Complainant | Respondent |
Parties | Cliona Tracey Nee Flood | Affinity Plus T/a Affinity Plus Home Support Limited Aka Affinity Plus Homecare Limited |
Representatives | N/A | Mr William Wall of Peninsula |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00052456-002 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00052456-003 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00052456-004 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00052456-005 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00052456-006 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00052456-007 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00052456-008 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00052456-009 | 29/08/2022 |
Date of Adjudication Hearing: 01/03/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 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 complaints.
Background:
The Complainant worked for the Respondent home care company from the 2nd of April 2022 until the 11th of August 2022 when she was dismissed.
The Respondent has at various times argued that the Complainant was dismissed for failing to pass her probation and that she had also resigned.
The Complainant had been raising a number of issues regarding travel time and subsistence and has submitted complaints alleging that the decision to dismiss her was in fact related to her raising these issues.
She alleges that the dismissal was penalisation for exercising her rights under Minimum Wage Act and/or the Organisation of Working Time Act.
The Complainant further alleges that the Respondent failed to adhere to the Minimum Wage Act, that the terms of her contract had been breached in regard to her probation period and that this was a breach of the Terms of Employment (information) Act, that she did not receive her minimum notice as required by the Minimum Notice and Terms of Employment Act, that was paid €13 per call out rather than €13 per hour as required by her contract of employment and that this was a breach of the Payment of Wages Act and that she did not get a daily rest period or public holidays as required by the Organisation of Working Time Act. |
Summary of Complainant’s Case:
The Complainant submitted detailed written submissions and gave extensive oral evidence as to her experience working for the Respondent company and of her dismissal. She had been told upon being hired that she would be paid €13 per hour plus mileage. Upon working for a few weeks she discovered the situation was very different as she was only being paid for the time assigned to a client’s home plus a subsistence payment. She was not paid for the time spent travelling from client to client. She did not get any payment for the May or June Bank holidays even though she worked the minimum hours required to get a one fifth payment. While she did ask for payslips and her rosters she never requested a Section 23 statement under the minimum wage act. She also raised that another colleague was not pulling her weight and failing to attend client houses on time leaving the Complainant to work by herself. In early July 2022 she did raise the issue of scheduling a minimum daily rest periods which she felt the rosters did not adhere to. In late July 2022 it became clear that she was going to be dismissed. A client had told her she was going to be let go and the Respondent unexpectedly paid her all her accrued annual leave. She had been seeking a meeting with management to raise some of her concerns and instead they sought to invite her to a disciplinary meeting however they were unclear as to what she was being disciplined for. |
Summary of Respondent’s Case:
The Respondent made written submissions. Ms Elaine O’Connor and Ms Collette Beausang and Declan Browne gave evidence. Ms O’Connor outlined that a number of issues had come to her attention for which she believed the Complainant was at fault for. A catheter bag was discovered with a twist in its line. A client’s mother complained about the Complainant’s demeanour in her home. A different carer had notified them that the Complainant was saying negative things about the directors. She sought to arrange a meeting with the Complainant to consider these issues however this engagement quickly became fraught. Ultimately the decision was made to terminate the Complainant’s employment. She was offered an appeal but turned this down. Ms Beausang gave evidence on the Respondent’s practices regarding travel subsistence and how the shifts are organised. Mr Bowne, the Respondent’s accountant, gave evidence as to a mistake whereby a number of staff were paid their leave by accident, including the Complainant. He explained that this had been an error in the payroll system and was not the fault of the Respondent. The Complainant had believed that this was an indication that the Respondent had already decided to dismiss her in late July. The Respondent argues that while they do not pay travel time they do pay a carer for the full time allotted to them per visit even though the visit usually takes less. Mr Wall cross examined the Complainant and she corroborated this point. |
Findings and Conclusions:
Unfair Dismissals Act - CA-00052456-002 Section 36 of the Minimum Wage Act prohibits the victimisation of employees by employers for . (a) exercised or having proposed to exercise a right under this Act, (b) in good faith opposed or proposed to oppose by lawful means an act which is unlawful under this Act, or (c) become, or in future will or might become, entitled in accordance with this Act to remuneration at an hourly rate of pay that on average is not less than the national minimum rate of pay, or a particular percentage of that rate of pay. The burden of proof lies with the Complainant to both show that she was engaged in the above protected actions and that because of this the Respondent had dismissed her. While the Complainant had been raising issues with how the Respondent paid subsistence it is not clear that she was raising anything to do with minimum wage even in the abstract. As such am I not satisfied that she comes under the scope of Section 36 and enjoys the relevant protection. CA-00052456-003 – Minimum Wage Act. Section 24 of the Minimum Wage Act is clear that I do not have jurisdiction to consider a complaint under that act unless the Complainant first: (i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or (ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be, or (b) where, in respect of the same alleged under-payment, the employer is or has been— (i) the subject of investigation by an inspector under section 33 or 34, or (ii) prosecuted for an offence under section 35. The Complainant did not seek a Section 23 statement as such I do not have jurisdiction to consider this matter further. CA-00052456-004 – Terms of Employment Information Act This complaint concerns the extension of the Complainant’s probation without her being notified. The Complainant has identified this a change to her terms of employment which she ought to have been notified of. Section 3 sets out what terms of employment are required to be contained within a written statement. The probation period is not one of them. As such this complaint does not come within the scope of the Act. CA-00052456-005 – Organisation of Working Time Act Section 26 of the Organisation of Working Time Act sets out that An employer shall not penalise or threaten penalisation of an employee for— (a) invoking any right conferred on him or her by this Act, (b) having in good faith opposed by lawful means an act that is unlawful under this Act, (c) giving evidence in any proceedings under this Act, or (d) giving notice of his or her intention to do any of the things referred to in the precedingparagraphs. The Complainant’s complaint form states that the reason for her dismissal resulted from her having raised the failure of the employer to allow for a daily rest break of 11 consecutive hours. The Complainant provided summaries of her working schedule. The Complainant normally just worked weekends. I will deal with the substantive complaint relating to this allegation separately under CA-00052456-008. What is relevant in this complaint is whether the Complainant having raised this issue resulted in her dismissal. The burden of proof is on the Complainant to establish this. I do not accept the Respondent’s argument that the Complainant resigned. They issued a clear decision to dismiss the Complainant in writing which could only have been arrived at if they still considered her to be an employee. They now allege that the Complainant had resigned the week before this decision issued. The Complainant’s oral evidence is that she raised issues relating to daily rest periods sometime in early July, before her dismissal. The issue does not appear in written correspondence until after her dismissal. On review of all the oral evidence I do not believe the issue of daily rest periods was a significant aspect of the dispute between the Complainant and the Respondent Directors. The focus of their disagreements appears to have been the travel subsistence allowance, a colleague the Complainant alleges was not pulling her weight and then the Respondent’s allegations which were partially put to the Complainant. For the avoidance of doubt, I am critical of how the Respondent organised their disciplinary processes and the manner in which it dismissed the Complainant. On review of the correspondence it appears that at one stage they attempted to backtrack from a disciplinary dismissal to no fault probationary dismissal. They later tried to characterise the matter as a resignation. I am not satisfied that the Complainant experienced anything approaching a fair hearing where evidence was put to her and the grounds for dismissal properly established. The evidence of Ms O’Connor in the hearing as to what the allegations were against the Complainant differs from the allegations as set out in correspondence to the Complainant. No evidence to substantiate these allegations was presented to the hearing and they remain entirely unproven. However, this does not mean that dismissal would not have occurred but for the Complainant having raised issues regarding her daily rest period. The Complainant has failed to establish this. There is substantial evidence of other issues being in dispute between the parties and there being a generally poor working relationship throughout the Complainant’s time working for the Respondent. CA- 00052456 -006 Minimum Notice The Respondent has sought to assert that the Complainant resigned. I do not accept this and rely on their letter of 11th of August 2022 dismissing the Complainant. As such the Complainant was entitled to one week’s notice. Section 12 of this act provides that I may award an employee compensation for any loss sustained by the employee by reason of the contravention. On review of the payslips available to me the Complainant’s weekly pay and subsistence came to approximately €260. In reference to the decision I have made regarding CA-00052456 and specifically that the Complainant ought to have been paid for her travel time I have calculated the Complainant’s notice to include an additional €52 which I attribute to working time which was unpaid by the Respondent but was owing to her. This brings the total notice period owing to the Complainant to €312. CA-00052456-007 – Payment of Wages Act The Complainant refers to her contract of employment which sets out her terms of emplyoment. The Complainant further refers to the both the rate of pay and the place of work Affinity Plus Ltd, College Farm, Newbridge. The contract states that the Complainant was to normally work 7 hours per day on the weekends. The Complainant states that she was never told that she was only going to be paid for the time allocated to a house visit rather than the time spent working and travelling between houses. The Complainant was assigned a series of house visits with allocated times and durations. For instance 8am- 9am, 9.30am – 10.30am, 10.30am -1pm. 1.30pm -2.30pm, 3pm – 4pm, 5.30pm -7.30pm, 8pm-9pm. In this example the Complainant would only be paid for the 8 and a half hours allocated to a persons home rather than the 12 or so hours actually working and travelling as part of work, taking into account an hour break between 4 and 5pm. On review of the Complainant’s contract, I can see no basis for her renumeration to be calculated in the manner put forward by the Respondent. The travel time was clearly between clients’ homes and a necessary part of her carrying out her duties. It was not travel from her home to her base location which had also been clearly set out in her contract. She was not issued with a contract specifying this travel time would not be renumerated. I also note that the Labour Court in ISS Ireland Limited v Gfencheva (DWT1157) has already clearly established that, for the purposes of the Organisation of Working Time Act: The Time spent by a worker while engaged in travelling, which is wholly, exclusively and necessarily undertaken in the performance of a contractual obligation of their employment, and where the commencement point and the finishing point together with the time allocated for travelling is determined by the employer, must be regarded as working time with the meaning of the Act. On a plain reading of the Complainant’s contract I am satisfied that she was entitled to be paid for the entire shift, not just the time spent in the client’s homes. As such the deduction of the time spent travelling between client homes constituted an unlawful deduction as prohibited under section 5 of the payment of wages acts. I note the Respondent also paid the Complainant a travel subsistence allowance. However this is unrelated to salary for travel time as it concerns a payment towards the cost of travel rather than renumeration for time spent working. The Respondent also outlined that it was non-contractual and discretionary. As such I do not think it is relevant to the Payment of Wages Act complaint. I also note the Respondent has raised the suggestion that the Complainant did not want travel time recorded as working time as it would affect her social welfare payments. I am of the view that this matter is between the Complainant and the Department of Social Protection. The Respondent’s obligation was to pay the Complainant for hours worked as per her contract. It is important to keep in mind that the Complainant raised this issue in the context of the way the subsistence payment was being recorded on her payslip. I believe that she had a legitimate concern that this could result in the Department of Social Protection believing she was being paid for 12 plus hours per shift when she was only getting a modest subsistence payment. The Respondent has also gone into some detail as to how they paid the Complainant for the entire hour allocated to any given client even when the work involved took less than an hour. I do not see how that is pertinent. It is normal in any job for there to be a degree of down time. Unless these reduced visits occurred on the Complainant’s last visit of the day and allowed the Complainant to cease working early and go home I do not see how this changes matters. I also note that the Respondent did not suggest it was in receipt of reduced fees as a result of the Complainant getting through her work and concluding her visits in less than the allotted times. I do accept that the Complainant did benefit from some breaks during the day and I have endeavoured to deduct them from what I consider properly payable to her. The Complainant has put forward a detailed estimate of what she believes is owing to her in unpaid wages totalling €1,684.53. She has also submitted a detailed mileage claim. Section 1 of this act specifically outlines that expenses are excluded from what can be considered wages. As such I cannot consider the Complainant’s mileage claim under this complaint. On review of the Complainant’s claim I am satisfied that it is the best evidence available to me as to her actual working hours. However I am concerned that it is overstated is some aspects. The Complainant was extensively cross examined about her working time and it is clear that she was frequently able to leave clients homes earlier than rostered. I believe this would have contributed to greater breaks during midday. I am also satisfied that while there is a place of work listed in her contract that was not her actual place of work as such she was not returning to this location every evening or for every break before heading home. Again in the context of her finishing earlier than rostered, in some clients houses, this would mean she was able to cease work and go home. On review I estimate €1300 to be a more accurate award in respect to her unpaid wages. CA-00052456-008 Organisation of Working Time Act The Complainant has raised the failure of the Respondent to provide her with a daily consecutive rest period. This obligation is set out in Section 11 of the Organisation of Working Time Act which states that An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer. The Complainant’s shifts were frequently scheduled to end at 9.30pm on a Saturday and start again at 7.30am on a Sunday. This provided for 10 hours on consecutive rest rather than the minimum 11 hours. However the Respondent was able to demonstrate in their submissions that the Complainant was able to leave her last shift early, thus giving her a 11 hour break. They accept that this did not happen in all cases however point out that the Complainant has failed to establish any detriment arising from these breaches of the act. Ultimately the breach of this act was blatantly provided for in the Respondent’s roster and as such an award is merited. However, as the Complainant only worked two days a week I am satisfied that this is a relatively minimal breach. I also accept that despite what the roster states the Complainant was frequently able to leave before her last visit of the day was scheduled to conclude. In the circumstances I believe an award of €500 is appropriate. CA-00052456-009 – Organisation of Working Time Act The Complainant alleges that she was not paid for her May or June public holidays. The Respondent has disputed this but provided no evidence of payment. This act clearly puts the burden on the Respondent to maintain proper records and though I note that the Respondent submissions seem to suggest that they are unaware of which public holidays the Complainant was suggesting she was not paid for. There were only ever three public holidays which occurred during the Complainant’s tenure. The payslips the Complainant provided show she was paid for the Easter Bank Holiday. The Respondent has offered no evidence that she was paid for the other two. In the circumstances I believe an award of €500 is appropriate. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00052456-002 I find that the complaint is not well founded. CA-00052456-003 I find that the complaint is not well founded. CA-00052456-004 I find that the complaint is not well founded. CA-00052456-005 I find that the complaint is not well founded. CA-00052456-006 I find that the complaint is well founded and direct the Respondent to pay the Complainant €312. CA-00052456-007 I find that the complaint is well founded and direct the Respondent to pay the Complainant €1300. CA-00052456-008 I find that the complaint is well founded and direct the Respondent to pay the Complainant €500 in compensation. CA-00052456-009 I find that the complaint is well founded and direct the Respondent to pay the Complainant €500 in compensation. |
Dated: 01/09/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
Key Words:
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ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00041401
Parties:
| Complainant | Respondent |
Parties | Cliona Tracey Nee Flood | Affinity Plus |
Representatives | N/A | Mr William Wall of Peninsula |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00052456-002 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00052456-003 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00052456-004 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00052456-005 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00052456-006 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00052456-007 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00052456-008 | 29/08/2022 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00052456-009 | 29/08/2022 |
Date of Adjudication Hearing: 01/03/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 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 complaints.
Background:
The Complainant worked for the Respondent home care company from the 2nd of April 2022 until the 11th of August 2022 when she was dismissed.
The Respondent has at various times argued that the Complainant was dismissed for failing to pass her probation and that she had also resigned.
The Complainant had been raising a number of issues regarding travel time and subsistence and has submitted complaints alleging that the decision to dismiss her was in fact related to her raising these issues.
She alleges that the dismissal was penalisation for exercising her rights under Minimum Wage Act and/or the Organisation of Working Time Act.
The Complainant further alleges that the Respondent failed to adhere to the Minimum Wage Act, that the terms of her contract had been breached in regard to her probation period and that this was a breach of the Terms of Employment (information) Act, that she did not receive her minimum notice as required by the Minimum Notice and Terms of Employment Act, that was paid €13 per call out rather than €13 per hour as required by her contract of employment and that this was a breach of the Payment of Wages Act and that she did not get a daily rest period or public holidays as required by the Organisation of Working Time Act. |
Summary of Complainant’s Case:
The Complainant submitted detailed written submissions and gave extensive oral evidence as to her experience working for the Respondent company and of her dismissal. She had been told upon being hired that she would be paid €13 per hour plus mileage. Upon working for a few weeks she discovered the situation was very different as she was only being paid for the time assigned to a client’s home plus a subsistence payment. She was not paid for the time spent travelling from client to client. She did not get any payment for the May or June Bank holidays even though she worked the minimum hours required to get a one fifth payment. While she did ask for payslips and her rosters she never requested a Section 23 statement under the minimum wage act. She also raised that another colleague was not pulling her weight and failing to attend client houses on time leaving the Complainant to work by herself. In early July 2022 she did raise the issue of scheduling a minimum daily rest periods which she felt the rosters did not adhere to. In late July 2022 it became clear that she was going to be dismissed. A client had told her she was going to be let go and the Respondent unexpectedly paid her all her accrued annual leave. She had been seeking a meeting with management to raise some of her concerns and instead they sought to invite her to a disciplinary meeting however they were unclear as to what she was being disciplined for. |
Summary of Respondent’s Case:
The Respondent made written submissions. Ms Elaine O’Connor and Ms Collette Beausang and Declan Browne gave evidence. Ms O’Connor outlined that a number of issues had come to her attention for which she believed the Complainant was at fault for. A catheter bag was discovered with a twist in its line. A client’s mother complained about the Complainant’s demeanour in her home. A different carer had notified them that the Complainant was saying negative things about the directors. She sought to arrange a meeting with the Complainant to consider these issues however this engagement quickly became fraught. Ultimately the decision was made to terminate the Complainant’s employment. She was offered an appeal but turned this down. Ms Beausang gave evidence on the Respondent’s practices regarding travel subsistence and how the shifts are organised. Mr Bowne, the Respondent’s accountant, gave evidence as to a mistake whereby a number of staff were paid their leave by accident, including the Complainant. He explained that this had been an error in the payroll system and was not the fault of the Respondent. The Complainant had believed that this was an indication that the Respondent had already decided to dismiss her in late July. The Respondent argues that while they do not pay travel time they do pay a carer for the full time allotted to them per visit even though the visit usually takes less. Mr Wall cross examined the Complainant and she corroborated this point. |
Findings and Conclusions:
Unfair Dismissals Act - CA-00052456-002 Section 36 of the Minimum Wage Act prohibits the victimisation of employees by employers for . (a) exercised or having proposed to exercise a right under this Act, (b) in good faith opposed or proposed to oppose by lawful means an act which is unlawful under this Act, or (c) become, or in future will or might become, entitled in accordance with this Act to remuneration at an hourly rate of pay that on average is not less than the national minimum rate of pay, or a particular percentage of that rate of pay. The burden of proof lies with the Complainant to both show that she was engaged in the above protected actions and that because of this the Respondent had dismissed her. While the Complainant had been raising issues with how the Respondent paid subsistence it is not clear that she was raising anything to do with minimum wage even in the abstract. As such am I not satisfied that she comes under the scope of Section 36 and enjoys the relevant protection. CA-00052456-003 – Minimum Wage Act. Section 24 of the Minimum Wage Act is clear that I do not have jurisdiction to consider a complaint under that act unless the Complainant first: (i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or (ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information, and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be, or (b) where, in respect of the same alleged under-payment, the employer is or has been— (i) the subject of investigation by an inspector under section 33 or 34, or (ii) prosecuted for an offence under section 35. The Complainant did not seek a Section 23 statement as such I do not have jurisdiction to consider this matter further. CA-00052456-004 – Terms of Employment Information Act This complaint concerns the extension of the Complainant’s probation without her being notified. The Complainant has identified this a change to her terms of employment which she ought to have been notified of. Section 3 sets out what terms of employment are required to be contained within a written statement. The probation period is not one of them. As such this complaint does not come within the scope of the Act. CA-00052456-005 – Organisation of Working Time Act Section 26 of the Organisation of Working Time Act sets out that An employer shall not penalise or threaten penalisation of an employee for— (a) invoking any right conferred on him or her by this Act, (b) having in good faith opposed by lawful means an act that is unlawful under this Act, (c) giving evidence in any proceedings under this Act, or (d) giving notice of his or her intention to do any of the things referred to in the precedingparagraphs. The Complainant’s complaint form states that the reason for her dismissal resulted from her having raised the failure of the employer to allow for a daily rest break of 11 consecutive hours. The Complainant provided summaries of her working schedule. The Complainant normally just worked weekends. I will deal with the substantive complaint relating to this allegation separately under CA-00052456-008. What is relevant in this complaint is whether the Complainant having raised this issue resulted in her dismissal. The burden of proof is on the Complainant to establish this. I do not accept the Respondent’s argument that the Complainant resigned. They issued a clear decision to dismiss the Complainant in writing which could only have been arrived at if they still considered her to be an employee. They now allege that the Complainant had resigned the week before this decision issued. The Complainant’s oral evidence is that she raised issues relating to daily rest periods sometime in early July, before her dismissal. The issue does not appear in written correspondence until after her dismissal. On review of all the oral evidence I do not believe the issue of daily rest periods was a significant aspect of the dispute between the Complainant and the Respondent Directors. The focus of their disagreements appears to have been the travel subsistence allowance, a colleague the Complainant alleges was not pulling her weight and then the Respondent’s allegations which were partially put to the Complainant. For the avoidance of doubt, I am critical of how the Respondent organised their disciplinary processes and the manner in which it dismissed the Complainant. On review of the correspondence it appears that at one stage they attempted to backtrack from a disciplinary dismissal to no fault probationary dismissal. They later tried to characterise the matter as a resignation. I am not satisfied that the Complainant experienced anything approaching a fair hearing where evidence was put to her and the grounds for dismissal properly established. The evidence of Ms O’Connor in the hearing as to what the allegations were against the Complainant differs from the allegations as set out in correspondence to the Complainant. No evidence to substantiate these allegations was presented to the hearing and they remain entirely unproven. However, this does not mean that dismissal would not have occurred but for the Complainant having raised issues regarding her daily rest period. The Complainant has failed to establish this. There is substantial evidence of other issues being in dispute between the parties and there being a generally poor working relationship throughout the Complainant’s time working for the Respondent. CA- 00052456 -006 Minimum Notice The Respondent has sought to assert that the Complainant resigned. I do not accept this and rely on their letter of 11th of August 2022 dismissing the Complainant. As such the Complainant was entitled to one week’s notice. Section 12 of this act provides that I may award an employee compensation for any loss sustained by the employee by reason of the contravention. On review of the payslips available to me the Complainant’s weekly pay and subsistence came to approximately €260. In reference to the decision I have made regarding CA-00052456 and specifically that the Complainant ought to have been paid for her travel time I have calculated the Complainant’s notice to include an additional €52 which I attribute to working time which was unpaid by the Respondent but was owing to her. This brings the total notice period owing to the Complainant to €312. CA-00052456-007 – Payment of Wages Act The Complainant refers to her contract of employment which sets out her terms of emplyoment. The Complainant further refers to the both the rate of pay and the place of work Affinity Plus Ltd, College Farm, Newbridge. The contract states that the Complainant was to normally work 7 hours per day on the weekends. The Complainant states that she was never told that she was only going to be paid for the time allocated to a house visit rather than the time spent working and travelling between houses. The Complainant was assigned a series of house visits with allocated times and durations. For instance 8am- 9am, 9.30am – 10.30am, 10.30am -1pm. 1.30pm -2.30pm, 3pm – 4pm, 5.30pm -7.30pm, 8pm-9pm. In this example the Complainant would only be paid for the 8 and a half hours allocated to a persons home rather than the 12 or so hours actually working and travelling as part of work, taking into account an hour break between 4 and 5pm. On review of the Complainant’s contract, I can see no basis for her renumeration to be calculated in the manner put forward by the Respondent. The travel time was clearly between clients’ homes and a necessary part of her carrying out her duties. It was not travel from her home to her base location which had also been clearly set out in her contract. She was not issued with a contract specifying this travel time would not be renumerated. I also note that the Labour Court in ISS Ireland Limited v Gfencheva (DWT1157) has already clearly established that, for the purposes of the Organisation of Working Time Act: The Time spent by a worker while engaged in travelling, which is wholly, exclusively and necessarily undertaken in the performance of a contractual obligation of their employment, and where the commencement point and the finishing point together with the time allocated for travelling is determined by the employer, must be regarded as working time with the meaning of the Act. On a plain reading of the Complainant’s contract I am satisfied that she was entitled to be paid for the entire shift, not just the time spent in the client’s homes. As such the deduction of the time spent travelling between client homes constituted an unlawful deduction as prohibited under section 5 of the payment of wages acts. I note the Respondent also paid the Complainant a travel subsistence allowance. However this is unrelated to salary for travel time as it concerns a payment towards the cost of travel rather than renumeration for time spent working. The Respondent also outlined that it was non-contractual and discretionary. As such I do not think it is relevant to the Payment of Wages Act complaint. I also note the Respondent has raised the suggestion that the Complainant did not want travel time recorded as working time as it would affect her social welfare payments. I am of the view that this matter is between the Complainant and the Department of Social Protection. The Respondent’s obligation was to pay the Complainant for hours worked as per her contract. It is important to keep in mind that the Complainant raised this issue in the context of the way the subsistence payment was being recorded on her payslip. I believe that she had a legitimate concern that this could result in the Department of Social Protection believing she was being paid for 12 plus hours per shift when she was only getting a modest subsistence payment. The Respondent has also gone into some detail as to how they paid the Complainant for the entire hour allocated to any given client even when the work involved took less than an hour. I do not see how that is pertinent. It is normal in any job for there to be a degree of down time. Unless these reduced visits occurred on the Complainant’s last visit of the day and allowed the Complainant to cease working early and go home I do not see how this changes matters. I also note that the Respondent did not suggest it was in receipt of reduced fees as a result of the Complainant getting through her work and concluding her visits in less than the allotted times. I do accept that the Complainant did benefit from some breaks during the day and I have endeavoured to deduct them from what I consider properly payable to her. The Complainant has put forward a detailed estimate of what she believes is owing to her in unpaid wages totalling €1,684.53. She has also submitted a detailed mileage claim. Section 1 of this act specifically outlines that expenses are excluded from what can be considered wages. As such I cannot consider the Complainant’s mileage claim under this complaint. On review of the Complainant’s claim I am satisfied that it is the best evidence available to me as to her actual working hours. However I am concerned that it is overstated is some aspects. The Complainant was extensively cross examined about her working time and it is clear that she was frequently able to leave clients homes earlier than rostered. I believe this would have contributed to greater breaks during midday. I am also satisfied that while there is a place of work listed in her contract that was not her actual place of work as such she was not returning to this location every evening or for every break before heading home. Again in the context of her finishing earlier than rostered, in some clients houses, this would mean she was able to cease work and go home. On review I estimate €1300 to be a more accurate award in respect to her unpaid wages. CA-00052456-008 Organisation of Working Time Act The Complainant has raised the failure of the Respondent to provide her with a daily consecutive rest period. This obligation is set out in Section 11 of the Organisation of Working Time Act which states that An employee shall be entitled to a rest period of not less than 11 consecutive hours in each period of 24 hours during which he or she works for his or her employer. The Complainant’s shifts were frequently scheduled to end at 9.30pm on a Saturday and start again at 7.30am on a Sunday. This provided for 10 hours on consecutive rest rather than the minimum 11 hours. However the Respondent was able to demonstrate in their submissions that the Complainant was able to leave her last shift early, thus giving her a 11 hour break. They accept that this did not happen in all cases however point out that the Complainant has failed to establish any detriment arising from these breaches of the act. Ultimately the breach of this act was blatantly provided for in the Respondent’s roster and as such an award is merited. However, as the Complainant only worked two days a week I am satisfied that this is a relatively minimal breach. I also accept that despite what the roster states the Complainant was frequently able to leave before her last visit of the day was scheduled to conclude. In the circumstances I believe an award of €500 is appropriate. CA-00052456-009 – Organisation of Working Time Act The Complainant alleges that she was not paid for her May or June public holidays. The Respondent has disputed this but provided no evidence of payment. This act clearly puts the burden on the Respondent to maintain proper records and though I note that the Respondent submissions seem to suggest that they are unaware of which public holidays the Complainant was suggesting she was not paid for. There were only ever three public holidays which occurred during the Complainant’s tenure. The payslips the Complainant provided show she was paid for the Easter Bank Holiday. The Respondent has offered no evidence that she was paid for the other two. In the circumstances I believe an award of €500 is appropriate. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00052456-002 I find that the complaint is not well founded. CA-00052456-003 I find that the complaint is not well founded. CA-00052456-004 I find that the complaint is not well founded. CA-00052456-005 I find that the complaint is not well founded. CA-00052456-006 I find that the complaint is well founded and direct the Respondent to pay the Complainant €312. CA-00052456-007 I find that the complaint is well founded and direct the Respondent to pay the Complainant €1300. CA-00052456-008 I find that the complaint is well founded and direct the Respondent to pay the Complainant €500 in compensation. CA-00052456-009 I find that the complaint is well founded and direct the Respondent to pay the Complainant €500 in compensation. |
Dated: 01/09/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
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