ADJUDICATION OFFICER DECISION
Carer v Care Agency
Adjudication Decision Reference: ADJ-00003557
Complaints for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00005209-001 | 15/06/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00005209-002 | 15/06/2016 |
Venue: Ashdown Park Hotel, Gorey, Co Wexford
Date of Adjudication Hearing: 29/11/2016
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Act, 1967 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 was employed as a Carer from 6th November 2008 to 1st March 2016. She was paid €12.00 per hour. She has claimed that she was told that there was no work for her, given her P45 but not given redundancy payment. She has claimed redundancy and minimum notice.
1) Redundancy Payments Act 1967 CA-00005209-001
Complainant’s Submission and Presentation:
She had been working a zero hour’s contract. She worked for an agency providing a one to one patient care service. She had no contract of employment and so no hours of work were guaranteed. She had no work from February 2015 to March 2016. Her P45 was issued on 1st March 2016. She was let go and not given any redundancy payment. She is seeking statutory redundancy. |
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Respondent’s Submission and Presentation:
The Complainant had been a most trusted and valued member of her team. Unfortunately she has broken that trust. The patient that she had been providing care for died in April 2015. Since then they have offered her any suitable work that came their way but she declined it. They even offered her emergency on- call work but she declined it. She didn’t attend the manual handling course in December 2015.Without Patient Manual Handling training it is not possible to get insurance. This was explained to her but she did not turn up or enquire about alternative dates for the training. In February 2016 a former client contacted the Respondent to complain about the Complainant. They did not know that she was working there. They were informed that the Complainant had been doing private work for the past year. This then explained her unavailability. This was a breach of trust. They discovered that she had been working for another care agency.
There is no basis for claiming redundancy when she was not available to work with the Complainant as she had been working privately. When she was issued with her P45 she had not been available for 11 months. The Respondent wrote to her to advise that if she made herself available and undertook the requisite training she would put her back on the available to work list. The response she got was the complaint to the WRC.
Findings
I note that the Complainant worked for a Caring Agency.
I note that she provided one to one care for clients.
When work became available she was offered this but had the option to decline it.
I note that her contract of employment did not guarantee her any hours.
I note that the Complainant alleged that she had not been given work for almost a year.
However in evidence before this hearing it was established that the Complainant had declined a number of job offers.
It also emerged that the Complainant had been providing a service in a private capacity to a former client of the Respondent.
Therefore the reason why she was not working for the Respondent was because she had found her own work.
Therefore I find that she was unavailable for work for a long period of time.
I note that the Respondent terminated the contract of employment because they believed that the Complainant had broken the trust.
I find that the Respondent then asked the Complainant to undertake the required manual handling training and to go back on the books. The response they got was the claim was referred to the WRC.
I find that the Complainant cannot decline work and then claim that she was made redundant.
I find that this was not a genuine redundancy situation.
Decision:
Section 39 of the Redundancy Payments Act, 1967 requires that I make a decision in relation to the complaint.
For the above stated reasons I have decided that this complaint fails.
2) Payment of Wages Act CA-00005209-002
Complainant’s Submission and Presentation:
Her employment was terminated on 1st March 2016. She did not get minimum notice. |
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Respondent’s Submission and Presentation:
They accept that giving her the P45 was a knee jerk reaction. She may be legally entitled to notice.
Findings
I note that the Complainant had not been available to work for 11 months.
I note that the Complainant had undertaken to carry out private work.
I note that the Respondent has accepted that they acted in a knee jerk fashion.
I find that the employment was terminated without minimum notice.
I find that the Complainant was entitled to minimum notice as per the terms of the Minimum Notice and Terms of Employment Act.
I find that the Complainant was entitled to four weeks’ notice.
In view of the fact that the Complainant was unable to work the notice the Respondent could have chosen to set four weeks forward as the end date of the contract of employment.
I note that they didn’t so the Complainant is entitled to four weeks wages.
I note that the total earnings in 2015 were €2,993.76 therefore I find that this equates to €57.57 per week. Therefore I find that she is entitled to €57.57 X 4 weeks = €230.28.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I have decided that the Respondent has breached the Act.
I order the Respondent to pay the Complainant €230.28 within six weeks of the date below.
Eugene Hanly
Adjudication Officer
Dated: 24th April 2017