Complainant

Respondent

Parties

Olivia  Whelton

Home And Away Care

Representatives

  Self-Represented

Emma Ryan The HR Suite

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-00060568-001

17/12/2023

The Complainant sought payment of annual leave for the period of time she worked on call.

The Complainant worked as a Heath Care Assistant and On Call Co-ordinator.

The Complainant stated she was no paid her annual leave for the hours she was on call.

The Complainant was on call from 5pm to 8am 4 days a week.

The Complainant commenced employment on 02/09/2019.

The Complainant ceased employment on 29/09/2023.

The Complainant was employed as a Healthcare Assistant.

 In June 2022 the Complainant took on the additional role of being on-call to assist with queries which may arise during the hours of 5pm – 8am, Monday to Thursday.

The Complainant was asked to provide a log of the times that she was called on during the period she was “oncall”. The Complainant did not provide any log to show times she worked during the period where she was “on-call”, it was the Respondents view that the employee has not accrued any annual leave during the hours she was scheduled “on-call”. It was the Respondents view that the Complainant is not entitled to payment for any annual leave accrued while being “on-call”.

The Respondent notes that on the complaint form the Complainant has outlined that she works 60 hours per week, the Respondent refuted that the Complainant has ever worked 60 hours per week. The Complainant was “on-call” for 60 hours per week but has at no point worked 60 hours per week. The Complainant has submitted a payslip for 2022, however it was noted that this is beyond the 6-month timeline of putting a complaint into the WRC and the Respondent requested that the Adjudicator takes same into account.

The Complainant was paid a set allowance of €100 per shift where she was required to be “on call”, the on-call schedule for the Complainant was Monday – Thursday, 5pm – 8am.  The Complainant received this allowance regardless of if the Complainant was called upon or not. The Complainant was going to be issued her standard hourly rate where the Complainant was required to work and carry out duties during the on-call schedule. The Complainant was not required to attend the workplace while on-call, she was on-call remotely. The Complainant’s role while “on-call” was to take queries from Carers or a Client during these hours should they arise. The Respondent outlined that it was the Complainant’s responsibility to provide details of the times which she was required to answer queries during the “on-call” period, to facilitate the Company in tracking these and to ensure any accrual of annual leave based on working time was accounted for. The Respondent noted that at no point did the Complainant provide any details of times which she was required to answer queries during the “on-call” period. The Respondent  noted that the Complainant in 2023 worked a total of 26.50 hours as a Healthcare Assistant, which calculated at 8% entitled the Complainant to 2.12 hours annual leave for 2023. The Respondent has no record of the Complainant working during the “on-call” period as the Complainant never provided any details of work done or calls received during these hours. The Complainant did not take annual leave entitlement within 2023, The Complainant was paid any outstanding accrued annual leave which was not used when she resigned from her position. 

 Under section (2) of the Organisation of Working Time Act, 1997 “working time” means any time that the employee is— (a) at his or her place of work or at his or her employer's disposal, and (b) carrying on or performing the activities or duties of his or her work.

The Respondent requested that the Adjudicator finds that the Respondent issued all annual leave entitlement to the Complainant.

The complaint was received on 17/12/2023 by the WRC and therefore the cognisable period under the Act (6 months) is 18/6/2023 to 17/12/2023. The Complainant was given the opportunity at the Hearing and subsequent to the Hearing was given the opportunity by the Adjudicator to provide any details of Hours she worked on call during the cognisable period from 18/6/2023 to the end of her employment on 29/9/2023. The Complainant was on call from home for the period and it was not possible, without the Complainants co-operation, for the Respondent to record any work hours. The Respondent was willing to pay any leave due of 8% of any agreed hours worked during on the on call time. There is no automatic entitlement of annual leave for the Complainant receiving an on call allowance. The Complainant did not submit details of any hours worked at either the Hearing or subsequent to the Hearing. In the absence of any details being supplied by the Complainant of hours worked, I find that no hours were worked and the complaint for annual leave accordingly is not well founded.

I find the complaint not well founded.

Annual Leave