Workplace Relations Commission (WRC) - RECENT Decisions & judgements
Complainant unsuccessful in claim as it was his decision not to work out his notice period
Adjudication Reference: ADJ-00017829
A complaint was received from the Complainant by the Workplace Relations Commission on 2nd November 2018.
The Complainant was employed by the Respondent as a Maintenance Manager from 10th October 2017 until 24th August 2018. The Complainant stated that since leaving employment he has sent several emails to the Respondent seeking payment for his notice period i.e. payment in lieu of the notice period. The Complainant alleges that he offered to work his notice period. He also alleges that the Respondent did not honour the terms of the contract signed by both parties at the commencement of employment in October 2017.
The Complainant states that he remained faithful and committed throughout his employment with the Respondent company. The Complainant alleges that he was summarily dismissed without notice.
The Respondent stated the Complainant was employed as a Maintenance Manager from October 2017 until August 2018. He was paid weekly and provided with a company car, a phone and a weekly fuel allowance. On 24th August 2018 the Respondent stated that after numerous discussions with the Complainant in relation to his performance, missing invoices / documentation, completed work not being invoiced and customers not receiving updates the Complainant said he was leaving his position in the Company, he left immediately – the Complainant was not dismissed from employment and had every opportunity to work out his notice.
Later the same morning (24/08/2018) the Complainant emailed the Respondent requesting a letter stating his employment with the Respondent had ceased, the Respondent emailed by return a letter stating that the employment had ceased by mutual agreement which was the Respondent’s understanding at that time.
On 1st October 2018 the Complainant emailed the Respondent stating that he remained willing to work out his notice period in good faith which he did not state on 24th August 2018, the date he resigned with immediate effect.
The Senior Manager was not in the office on 1st October and when contacted by the Office Manager he informed the Office Manager that she should reply to the Complainant stating that the Respondent was happy to re-instate the Complainant into the Company in order for him to work out his notice period. The Complainant did not respond to this email.
It appeared that at times when the Respondent brought up the subject of the Complainant’s performance, the Complainant would ask the question “Do you want me to leave?” Apparently, this happened on more than one occasion.
It got to the point that at on 24th August 2018, the Respondent replied, “If you want to go – just go”.
The Adjudicator found that the Complainant could have worked his notice period and chose not to do so. The Complainant chose to leave his employment and not work the notice period. The Adjudicator declares the complaint as presented not well founded and therefore fails.
Complainant awarded €10,050 in recovery of unpaid wages whilst an investigation was ongoing
Adjudication Reference: ADJ-00016500
The Complainant commenced working as a Healthcare Assistant for the Respondent on 1 June 2008. The Respondent is an agency provider of healthcare staff. The Complainant was assigned to work in hospitals. The Complainant was not allocated work from 6 April 2018 while a hospital carried out a ‘Trust in Care’ investigation. The Respondent informed the Complainant two weeks before the Adjudication that she was restored to their app. The Complainant seeks recovery of unpaid wages. The Respondent denies the claim.
The Complainant stated that she was suspended on 6 April 2018 and had not been given a return date. She was not assigned work elsewhere while the ‘Trust in Care’ investigation was pending. She was advised that she could not be assigned work until her name was cleared. Her status was “inactive” and she could not use the Respondent’s app.
She was told not to use the word “suspension” and was left in a limbo. The Complainant became ill on 18 July 2018. This was attributable to a stress disorder.
The Complainant believed that the investigation had recently been completed and that she should have been restored “active” at an earlier point. The Complainant was off her certs in the week of the Adjudication and has not made herself available as she needed to speak to her doctor first.
The Complainant submitted that an employment agency could not say that a worker cannot work until her name is cleared. She had an 11-year blemish-free record but was not able to work between April and October and was left without pay. She could not go to another agency because of the circumstances.
It was the hospital who suspended the Complainant from their premises but the agency did not assign her elsewhere. She was only offered work late in the day (in October 2018), even though the investigation had not yet ended.
The Respondent outlined that when a complaint relates to a patient, it is dealt with via the HSE’s ‘Trust in Care’ policy. The onus was on the client hospital to come back with recommendations. The Respondent could not place the Complainant on another site because of the serious nature of the allegation. A change in management in the hospital contributed to the delay. When the complaint relates to a patient, the agency cannot investigate it and relies on the client hospital to gather information. When a staff member is not required, they are not paid, per the contract provisions.
The Respondent reached out regarding the state of the play of the investigation, i.e. before the WRC complaint was made. A hospital will not take on an employee under investigation. The Respondent pushed the hospital for a decision.
They had to give the hospital time to investigate and had to let the investigation take its course. The Respondent left messages on 22 August regarding three investigations. Two weeks before this Adjudication, the Respondent was informed that another agency worker was cleared, and the hospital gave a verbal update regarding the Complainant. The Respondent relayed this to the Complainant and she was placed as “active” for other sites.
The Respondent submitted that the Complainant’s role was as a Healthcare Assistant and this involves dealing with patients. She was unfit for work after 18 July so cannot recover from that date. There was no sick pay scheme.
It was not satisfactory for the Respondent to wait for the hospital to complete the investigation. She was told that she was not suspended however no attempt was made to find out what happened and to see if she could be employed elsewhere. The Complainant had to use up her annual leave.
It was only after this claim was lodged with the Workplace Relations Commission that there was forward momentum to resolve the matter. Despite the email of 5 October, there were still monies owed to the Complainant. The offer of a return to work took place in advance of the Complainant being cleared and because of this WRC complaint. She could have been offered work not related to healthcare.
The Respondent terms and conditions provide “you will be engaged as an agency Healthcare Assistant to provide services to such Client Organisations of [the Respondent], on an as needs and as required basis”; “There is no obligation on you to accept the work offered. You have the right to refuse or accept the hours offered to you. The refusal of hours on your behalf will have no negative consequence”; “You are not bound exclusively to [the Respondent], however if an agency shift arises it will only be offered to agency staff who have put themselves ‘on call’ and are therefore considered by [the Respondent] to be available”; “[The Respondent] gives no guarantee that hours will be offered to you on a weekly basis”; “if you agree to hours of work you will be required to attend work for those hours”.
The terms and conditions provide that the Respondent can take action against the employee for disciplinary matters, for example conduct or performance.
The Complainant earned about €670 per week in her role as Healthcare Assistant. Her 2018 pay slips record that she worked mainly in the tertiary hospital that carried out the ‘Trust in Care’ investigation.
The Trust in Care policy is national policy to assist in preventing and addressing abuse in the healthcare context. The policy provides that an allegation of abuse will be subject to preliminary screening. The allegation proceeds to full investigation if it is determined that the alleged abuse could have occurred. This is a low threshold. It provides for protective measures pending an investigation. It provides that putting a staff member off duty with pay should be done in exceptional circumstances and not as a disciplinary sanction. It provides that the investigation should be expeditious.
While the ‘Trust in Care’ policy envisages that suspension would be used in exceptional circumstances and would be paid, the Complainant was not assigned work for some months. The Respondent did not make the decision to investigate the ‘Trust in Care’ complaint, although did not assign the Complainant to other hospitals pending the investigation. The ‘Trust in Care’ policy does not prevent the Complainant being assigned elsewhere, for example to the other hospital where she had an established track record. This is obviously unsatisfactory as the Complainant, an experienced and longstanding healthcare assistant, was not able to work anywhere.
This case pre-dates the Employment (Miscellaneous Provisions) Act, 2018, which now prohibits so-called zero hours contracts, including ones where the employee is provided hours on an ‘as required’ basis. This complaint also relates to a Payment of Wages claim. The Complainant was certified as sick from 18 July 2018 and this continued up to the day of the adjudication hearing. Even if this sickness was attributable to not being assigned work, this is not a matter for the Payment of Wages Act. The Complainant had no statutory or contractual right to sick pay, so redress cannot be awarded for this period.
In respect of the period from 6 April to 18 July 2018 (a period of 15 weeks), The Adjudicator finds that the wages were properly payable to the Complainant. Section 6 of the Protection of Employees (Temporary Agency Work) Act provides the same working conditions for an agency employee. This emanates from European Union law. An employee of the hirer would be entitled to be paid pending the investigation. In this period, the Complainant was available to work and could have returned to work at the other prominent hospital, where she had an established track record. There was no prohibition in her contract or in national policy for such a placement.
It follows that the pay for the period of 6 April to 18 July 2018 was properly payable. This is an amount of €10,050. The Adjudicator makes no award in respect of holiday pay as the Complainant availed of annual leave. There is no question of double recovery as the Complainant has exhausted this annual and public holiday leave.
The Adjudicator decided that the complaint of a contravention of the Payment of Wages Act is well founded and the Respondent shall pay to the Complainant redress of €10,050, less any deductions due in tax.
Adjudication Reference: ADJ-00017829
A complaint was received from the Complainant by the Workplace Relations Commission on 2nd November 2018.
The Complainant was employed by the Respondent as a Maintenance Manager from 10th October 2017 until 24th August 2018. The Complainant stated that since leaving employment he has sent several emails to the Respondent seeking payment for his notice period i.e. payment in lieu of the notice period. The Complainant alleges that he offered to work his notice period. He also alleges that the Respondent did not honour the terms of the contract signed by both parties at the commencement of employment in October 2017.
The Complainant states that he remained faithful and committed throughout his employment with the Respondent company. The Complainant alleges that he was summarily dismissed without notice.
The Respondent stated the Complainant was employed as a Maintenance Manager from October 2017 until August 2018. He was paid weekly and provided with a company car, a phone and a weekly fuel allowance. On 24th August 2018 the Respondent stated that after numerous discussions with the Complainant in relation to his performance, missing invoices / documentation, completed work not being invoiced and customers not receiving updates the Complainant said he was leaving his position in the Company, he left immediately – the Complainant was not dismissed from employment and had every opportunity to work out his notice.
Later the same morning (24/08/2018) the Complainant emailed the Respondent requesting a letter stating his employment with the Respondent had ceased, the Respondent emailed by return a letter stating that the employment had ceased by mutual agreement which was the Respondent’s understanding at that time.
On 1st October 2018 the Complainant emailed the Respondent stating that he remained willing to work out his notice period in good faith which he did not state on 24th August 2018, the date he resigned with immediate effect.
The Senior Manager was not in the office on 1st October and when contacted by the Office Manager he informed the Office Manager that she should reply to the Complainant stating that the Respondent was happy to re-instate the Complainant into the Company in order for him to work out his notice period. The Complainant did not respond to this email.
It appeared that at times when the Respondent brought up the subject of the Complainant’s performance, the Complainant would ask the question “Do you want me to leave?” Apparently, this happened on more than one occasion.
It got to the point that at on 24th August 2018, the Respondent replied, “If you want to go – just go”.
The Adjudicator found that the Complainant could have worked his notice period and chose not to do so. The Complainant chose to leave his employment and not work the notice period. The Adjudicator declares the complaint as presented not well founded and therefore fails.
Complainant awarded €10,050 in recovery of unpaid wages whilst an investigation was ongoing
Adjudication Reference: ADJ-00016500
The Complainant commenced working as a Healthcare Assistant for the Respondent on 1 June 2008. The Respondent is an agency provider of healthcare staff. The Complainant was assigned to work in hospitals. The Complainant was not allocated work from 6 April 2018 while a hospital carried out a ‘Trust in Care’ investigation. The Respondent informed the Complainant two weeks before the Adjudication that she was restored to their app. The Complainant seeks recovery of unpaid wages. The Respondent denies the claim.
The Complainant stated that she was suspended on 6 April 2018 and had not been given a return date. She was not assigned work elsewhere while the ‘Trust in Care’ investigation was pending. She was advised that she could not be assigned work until her name was cleared. Her status was “inactive” and she could not use the Respondent’s app.
She was told not to use the word “suspension” and was left in a limbo. The Complainant became ill on 18 July 2018. This was attributable to a stress disorder.
The Complainant believed that the investigation had recently been completed and that she should have been restored “active” at an earlier point. The Complainant was off her certs in the week of the Adjudication and has not made herself available as she needed to speak to her doctor first.
The Complainant submitted that an employment agency could not say that a worker cannot work until her name is cleared. She had an 11-year blemish-free record but was not able to work between April and October and was left without pay. She could not go to another agency because of the circumstances.
It was the hospital who suspended the Complainant from their premises but the agency did not assign her elsewhere. She was only offered work late in the day (in October 2018), even though the investigation had not yet ended.
The Respondent outlined that when a complaint relates to a patient, it is dealt with via the HSE’s ‘Trust in Care’ policy. The onus was on the client hospital to come back with recommendations. The Respondent could not place the Complainant on another site because of the serious nature of the allegation. A change in management in the hospital contributed to the delay. When the complaint relates to a patient, the agency cannot investigate it and relies on the client hospital to gather information. When a staff member is not required, they are not paid, per the contract provisions.
The Respondent reached out regarding the state of the play of the investigation, i.e. before the WRC complaint was made. A hospital will not take on an employee under investigation. The Respondent pushed the hospital for a decision.
They had to give the hospital time to investigate and had to let the investigation take its course. The Respondent left messages on 22 August regarding three investigations. Two weeks before this Adjudication, the Respondent was informed that another agency worker was cleared, and the hospital gave a verbal update regarding the Complainant. The Respondent relayed this to the Complainant and she was placed as “active” for other sites.
The Respondent submitted that the Complainant’s role was as a Healthcare Assistant and this involves dealing with patients. She was unfit for work after 18 July so cannot recover from that date. There was no sick pay scheme.
It was not satisfactory for the Respondent to wait for the hospital to complete the investigation. She was told that she was not suspended however no attempt was made to find out what happened and to see if she could be employed elsewhere. The Complainant had to use up her annual leave.
It was only after this claim was lodged with the Workplace Relations Commission that there was forward momentum to resolve the matter. Despite the email of 5 October, there were still monies owed to the Complainant. The offer of a return to work took place in advance of the Complainant being cleared and because of this WRC complaint. She could have been offered work not related to healthcare.
The Respondent terms and conditions provide “you will be engaged as an agency Healthcare Assistant to provide services to such Client Organisations of [the Respondent], on an as needs and as required basis”; “There is no obligation on you to accept the work offered. You have the right to refuse or accept the hours offered to you. The refusal of hours on your behalf will have no negative consequence”; “You are not bound exclusively to [the Respondent], however if an agency shift arises it will only be offered to agency staff who have put themselves ‘on call’ and are therefore considered by [the Respondent] to be available”; “[The Respondent] gives no guarantee that hours will be offered to you on a weekly basis”; “if you agree to hours of work you will be required to attend work for those hours”.
The terms and conditions provide that the Respondent can take action against the employee for disciplinary matters, for example conduct or performance.
The Complainant earned about €670 per week in her role as Healthcare Assistant. Her 2018 pay slips record that she worked mainly in the tertiary hospital that carried out the ‘Trust in Care’ investigation.
The Trust in Care policy is national policy to assist in preventing and addressing abuse in the healthcare context. The policy provides that an allegation of abuse will be subject to preliminary screening. The allegation proceeds to full investigation if it is determined that the alleged abuse could have occurred. This is a low threshold. It provides for protective measures pending an investigation. It provides that putting a staff member off duty with pay should be done in exceptional circumstances and not as a disciplinary sanction. It provides that the investigation should be expeditious.
While the ‘Trust in Care’ policy envisages that suspension would be used in exceptional circumstances and would be paid, the Complainant was not assigned work for some months. The Respondent did not make the decision to investigate the ‘Trust in Care’ complaint, although did not assign the Complainant to other hospitals pending the investigation. The ‘Trust in Care’ policy does not prevent the Complainant being assigned elsewhere, for example to the other hospital where she had an established track record. This is obviously unsatisfactory as the Complainant, an experienced and longstanding healthcare assistant, was not able to work anywhere.
This case pre-dates the Employment (Miscellaneous Provisions) Act, 2018, which now prohibits so-called zero hours contracts, including ones where the employee is provided hours on an ‘as required’ basis. This complaint also relates to a Payment of Wages claim. The Complainant was certified as sick from 18 July 2018 and this continued up to the day of the adjudication hearing. Even if this sickness was attributable to not being assigned work, this is not a matter for the Payment of Wages Act. The Complainant had no statutory or contractual right to sick pay, so redress cannot be awarded for this period.
In respect of the period from 6 April to 18 July 2018 (a period of 15 weeks), The Adjudicator finds that the wages were properly payable to the Complainant. Section 6 of the Protection of Employees (Temporary Agency Work) Act provides the same working conditions for an agency employee. This emanates from European Union law. An employee of the hirer would be entitled to be paid pending the investigation. In this period, the Complainant was available to work and could have returned to work at the other prominent hospital, where she had an established track record. There was no prohibition in her contract or in national policy for such a placement.
It follows that the pay for the period of 6 April to 18 July 2018 was properly payable. This is an amount of €10,050. The Adjudicator makes no award in respect of holiday pay as the Complainant availed of annual leave. There is no question of double recovery as the Complainant has exhausted this annual and public holiday leave.
The Adjudicator decided that the complaint of a contravention of the Payment of Wages Act is well founded and the Respondent shall pay to the Complainant redress of €10,050, less any deductions due in tax.
Note on WRC:
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
The establishment of the Workplace Relations Commission on the 1st October 2015 is the most radical restructuring of employment legislation over the last 30 years. Organisations are encouraged to understand all facets of the WRC, how it now operates and what to expect when required to defend a claim at the third parties.
The establishment of the Workplace Relations Commission has resulted in the combined functions of the Labour Relations Commission, Rights Commissioner Service, the Equality Tribunal, the Employment Appeals Tribunal and the National Employment Rights Authority (NERA).
In addition to this the Labour Court has been reconfigured in order to hear appeals.
The strategic aims of the new Workplace Relations Commission include an independent, effective and impartial workplace relations service, a more workable means of redress within a reasonable timeframe and an overall reduction in costs. The new Workplace Relations Commission is also anticipated to be more centralised, in terms of maintaining a database of case information, the end result bring a better service for both Employers and Employees and a much more streamlined, simplified process.
Adare Human Resource Management is one of Ireland’s leading Employment Law and Human Resource Management Consultancies. Our HR & Employment Law Support Services include:
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