Complainant

Respondent

Parties

Mary Byrne

Finglas Childcare CLG  

Representatives

Self-represented

Damien McCluskey

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act, 1946

CA-00063010-001

23/04/2024

The Complainant asserts that she should have been paid the manager rate in accordance with the Employment Regulation Order (ERO) for the Early Learning and Childcare Sector when she was employed by the Respondent.

The Respondent rejects the complaint and contends that the Complainant was paid the correct rate for her role.

The Complainant submits that from 2008 until September 2021 she worked part-time for the Respondent. She had a second job with another creche. In August 2021 her then manager, Mr McCluskey, offered her full-time work with the Respondent. Her manager told her that she would be paid the same rate as she was paid for her morning hours and that she would be in charge, and everyone would know that she was in charge. The Complainant accepted her manager’s offer.

In September 2022, the Complainant received a text from SIPTU informing her about the new pay rates for early years workers under the Employment Regulation Order (ERO). The Complainant assumed that her rate would be increased to the manager rate of €16.50 per hour. She was informed that the pay increase would be backdated in October. When the Complainant received her payslip in October, she saw that she was being paid the hourly rate of €14, the pay rate of an early years room leader.

The Complainant emailed her manager regarding her rate of pay in case it was an oversight. She also emailed the staff member from whom she received her payslip every week. The Complainant did not get any response to her emails.

However, the Complainant’s manager rang her and proceeded to negotiate with her. Her manager first offered her €15 per hour until the following August. The Complainant refused his offer. After a lot of back and forth, her manager told the Complainant that she would be paid €15 an hour on a continuing basis, not just until the following August.

The Complainant accepted her manager’s offer as she felt that pushing any further would result in have to leave her employment and she was not in a position to do so.

Throughout her time as manager, the Complainant dealt with staffing, parents, children, TUSLA and Pobail. She also dealt with some very difficult and sensitive issues that other staff members did not have to deal with.

The Complainant asserted that she was the day-to-day manager of the creche in which she worked. If any issues arose, they were first dealt with by the relevant room leader and, where necessary, escalated to her.

The Complainant contends that she was named as a manager on all documents relating to the creche and the children in its care including cleaning sheets, accident reports and Pobail documentation. The Complainant further submits that she liaised with the Staffing and HR Manger about staffing. At the time of submitting her complaint to the WRC, the Complainant was still the named person in charge of the creche on the TUSLA website.

The Complainant submitted a number of documents to the hearing, which she asserts, support her position that she was the manager of the creche.

The Respondent is a not-for-profit community-based childcare provider which is funded by Pobail and childcare fees.

The Respondent submits that it operates three creches with varying number of rooms in each. There are three managers in the Respondent organisation – the Childcare Manager, the Finance Manager and the Staffing and HR Manager. The Respondent organisation is run by a voluntary board. The managers are based in the head office which is in the same location as one of the creches. They regularly visit the other creches.

The Respondent contends that the Complainant was a senior worker/room leader in one of its creches. The Respondent contends that it would be the norm for the senior worker in a room to be the point of contact for TUSLA, Pobail and other state agencies. The senior worker would show TUSLA and Pobail where files are located.

The Respondent submits that the Complainant’s rate of pay was consistent with the ERO given her level of qualification which was National Framework of Qualifications (NFQ) Level 6.

The Respondent said that it had taken note of extra duties which the Complainant undertook and paid her €15 per hour instead of the €14 per hour which she should have been paid in recognition of her extra duties.  The Respondent further submitted that it paid the Complainant an extra hour for keyholding responsibilities.

The Respondent submitted that there was a protocol in place that if any issues arose, the first point of contact would be the room leader. If the issue was not resolved, the room leader was to contact the relevant manager.

The Respondent submits that managers make policy decisions and report to the Board. The Respondent submits that no documentation exists to show that the Complainant was a manager and, furthermore, she never asked to be a manager.

The Respondent asserts that the Complainant is a point of contact for staffing, but it is the Staffing and HR Manager who sorts out the rosters for each creche.

The Respondent asserts that it both Pobail and TUSLA approved its structure, and it had a clean bill of health from TUSLA.

The Complainant has submitted her complaint under section 45A of the Industrial Relations Act, 1946 which sets out the role of an Adjudication Officer regarding an alleged breach of an ERO as follows:

Decision of adjudication officer under section 41 of Workplace Relations Act 2015

45A.— A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of an employment regulation order in relation to a worker shall do one or more of the following, namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) require the employer to comply with the employment regulation order, or

(c) require the employer to pay to the worker compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the worker’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The matter for me to decide is if the Complainant was employed as a manager by the Respondent and was, therefore, entitled to be paid at the manager rate of €16.50 per hour in accordance with the ERO for the Early Learning and Childcare Sector which was in effect at the relevant time.

Both parties provided verbal and documentary evidence in support of their respective positions.

The Complainant contends that she was the most senior employee in the creche where she worked and was, in effect, the manager of the creche. The Complainant asserts that she carried out all managerial duties in relation to the creche, including dealing with the relevant state agencies; dealing with complaints and accident reports; signing cleaning sheets; and liaison in relation to staffing.

In support of her claim, the Complainant submitted a document from her former workplace in which she was named as Creche Supervisor and the person who should be contacted when staff are absent due to illness. She also submitted a screenshot from the TUSLA website which names her as the person in change in her former workplace. The Respondent submitted a document showing the Complainant’s professional details which was displayed in her former workplace in which her position is given as ‘Toddler Room Leader’.

It appears to me that the unique structure of the Respondent organisation where it ran three separate creches with management located in the Head Office, resulted the Complainant being assigned additional responsibilities to facilitate the smooth running of her workplace when there was no manager on-site. For these additional responsibilities she received an additional payment of €1 per hour and an extra hour’s pay per week.

However, there was no compelling or conclusive evidence provided to me which persuades me that the Complainant was employed as a manager by the Respondent. She did not make policy decisions, and she did not report directly to the Board. Accordingly, I find that her complaint is not well founded.

Having considered the submissions of both parties and all the evidence put before me at the adjudication hearing, I declare that this complaint is not well founded.

Rate of pay under the ERO for the Early Learning and Childcare Sector