Complainant

Respondent

Parties

Sandra  Gaffney

Fatima Groups United

Complainant

Respondent

Anonymised Parties

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Representatives

John O'Sullivan SIPTU

 Mr Joe Donohoe

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00056157-001

18/04/2023

The complainant commenced her employment with the respondent on 12 February 2018.  She was employed as a childcare worker. She holds a QQI Level 6 qualification in childcare.  She was employed on a full-time basis until she requested part-time hours in September 2022.  Her request was facilitated, and she began working 17.5 hours per week on 24 October 2022.  The complainant’s rate of pay as a full-time employee was €15 per hour but when she changed to part-time hours the rate per hour was reduced to €14.  The complainant claims she was discriminated against because she became a part-time worker.

The complainant submitted a complaint to the Workplace Relations Commission on 18 April 2023 pursuant to section 16 of the Protection of Employees (Part-Time Work) Act, 2001.  The complainant was represented at the hearing by her union official.

The complainant is a qualified childcare worker.  Between February 2018 and 24 October 2022, she worked full-time for the respondent.  In September 2022 the complainant decided to reduce her working hours for personal reasons.  Her request to the respondent was granted and she commenced working 17.5 hours per week from 24 October 2022.

The complainant recalls that on 15 or 16 September the Creche Manager called her into her office and informed her that she would be offered a temporary part-time position.  She was also informed of a pay increase, €15 per hour for full-time staff and €14 per hour for part-time staff.  The pay rise was backdated to 01 September 2022.  As the complainant was still working full-time at that date she did not think about the rate per hour.  In October 2022, a week before starting part-time hours, she approached the Manager to ask about the different rates for full-time and part-time staff.  The rationale for the different rates was stated to be an incentive for full-time staff.

The complainant queried the rate difference further with the respondent is a series of emails.  She informed the respondent that she believed it was a breach of the Protection of Employees (Part-Time Work) Act to pay different rates to full-time and part-time staff who were doing the same work.  The complainant was informed that there was an objective basis for the payment of different rates to full-time and part-time employees.  Having failed to have the matter resolved directly with the respondent the complainant referred the issue to her union.

A remote meeting took place on 10 February 2023.  The union official informed the respondent that there was no difference in the work being done by the full-time and part-time employees, they were all childcare workers with the same duties.  The meeting failed to resolve the issue.

The complainant became so frustrated at being paid less as a part-time worker compared to a full-time worker and failing to have the matter resolved locally that she informed the respondent of her intention to resign.  She resigned with effect from 24 February 2023.

Legal Submission

Section 9 of the Protection of Employees (Part-Time Work) Act states that a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner that a comparable full-time employee.  As the complainant transferred from being a full-time childcare worker to being a part-time childcare worker, she is the comparable full-time employee for the purpose of this claim.  She was paid €15 per hour as a full-time worker and €14 per hour as a part-time worker while doing the same duties.  Therefore, the complainant was treated in a less favourable manner than a comparable full-time employee.

Section 9 of the Act also provides that if treating a part-time employee in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that may be permitted.  However, section 12 of the Act, provides that a ground shall not be regarded as an objective ground unless it is based on considerations other than the status of the part-time employee and such treatment is for the purpose of achieving a legitimate objective.  The justification provided by the respondent was that the part-time childcare worker performed less duties than the full-time childcare worker.  The complainant performed the same duties as a full-time childcare worker including all the necessary paperwork for each child and she was responsible for the opening and closing of her classroom each day.  It is submitted that there was no objective ground to pay a reduced hourly rate to part-time employees.

The Labour Court decision in National Concert Hall v O’Reilly PTW/18/4 was cited in support of the complainant’s complaint.

It is submitted that the complainant was discriminated against as a result of being a part-time worker.  The complainant seeks a declaration that this complaint is well founded, payment of €315 being her loss of €17.5 per week for 18 weeks and compensation.

The respondent is a voluntary organisation.  The Board of Management made a decision in September 2022 to give a pay rise to their childcare staff.  At that time the complainant was a full-time childcare worker and her hourly rate was increased to €15.

The complainant submitted a request to reduce her work hours to 17.5 per week.  The respondent acknowledged the complainant was an excellent childcare worker who had made a big impact on the developmental needs of children. Although the respondent required afternoon staff it approved the complainant’s request for part-time hours.  The complainant commenced working 17.5 hours per week from 24 October 2022.

The respondent made a decision to pay different hourly rates for part-time and full-time childcare workers based on what it believed were objective criteria, having taken advice from an external HR company.  The respondent had no intention to discriminate against anyone.  The respondent accepted the advice from the external HR company but subsequently was informed that the objective rationale they based their decision on would not hold up.  The respondent recognised it had received incorrect advice and ended its contract with that company.  A new advisor was appointed.  The respondent acknowledged that a mistake had been made and apologised for that mistake.  The respondent wanted to remedy the situation.

The respondent had tried to settle the matter but without success. The respondent is a community run not for profit organisation with limited means.

CA-00056157-001

Complaint pursuant to section 16 of the Protection of Employees (Part-Time Work) Act, 2001.

I have carefully considered the submissions of the parties.  Based on the submissions presented I am satisfied that the complainant, as a part-time worker, was treated less favourably than she had been as a full-time worker when she was paid €1 less per hour from 24 October 2022.

I acknowledge that the respondent acted on advice from an external HR company when it implemented the new pay rates.  The advice received was incorrect and the respondent acknowledged that a mistake had been made which they were anxious to rectify.  I find that the complainant’s rights under section 9 of the Act have been breached and the complaint is well founded.

The complainant suffered a loss of €17.50 per week as a result of the breach of the Act.  She worked as a part-time childcare worker for 18 weeks.  Therefore, her total loss of income was €315. 

Section 16 of the Act permits me to award compensation where there has been a contravention of section 9 of the Act.  Having regard to all the circumstances, the evidence provided and the submissions made by both parties I decide it is just and equitable to award the complainant compensation in the amount of €630.

CA-00056157-001

Complaint pursuant to section 16 of the Protection of Employees (Part-Time Work) Act, 2001.

I decide that the complaint is well founded.  The complainant’s rights under section 9 of the Act were breached.  Having regard to all the circumstances, the evidence provided and the submissions made by both parties I decide it is just and equitable to direct the respondent to pay the complainant compensation in the amount of €630.

Part-Time Worker

Full-Time Worker

Pay