SECTION 28 (1), ORGANISATION OF WORKING TIME ACT, 1997
BEECHFIELD PRIVATE HOMECARE LIMITED
- AND -
MS MEGAN HAYES KELLY
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
Chairman: Mr Haugh
Employer Member: Mr Marie
Worker Member: Mr McCarthy
1. An Appeal of an Adjudication Officer's Decision No.ADJ-00018463-CA-00023749-002/4/5
2. The Respondent appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 21 August 2019. The following is the Decision of the Court.
Background to the Appeal
This is an appeal by Ms Megan Hayes Kelly (‘the Complainant’) from a number of decisions of an Adjudication Officer (ADJ-00018463/CA-00023749-002; ADJ-00018463/CA-00023749-004 and ADJ-00018463/CA-00023749-005, each dated 7 June 2019) under the Organisation of Working Time Act 1997 (‘the 1997 Act’). The Notice of Appeal was received by the Court on 3 July 2019. The Court heard the appeal in Dublin on 21 August 2019.
The Complainant was employed by Beechfield Private Home Care Limited (‘the Respondent’) as a Home Care Health Assistant between 7 July 2017 and 24 August 2018. During that period, the Complainant was assigned to care for several different clients, including elderly clients and children with disabilities. She worked varying weekly hours. Her rate of pay was €10.00 per hour or €11.00 per hour, depending on the client to which she was assigned on any particular day.
Complaints under the Act
ADJ-00018463/CA-00023749-002:This complaint relates to the Respondent’s alleged failure to ensure the Complainant received rest breaks during working hours in accordance with section 12 of the 1997 Act.
The Complainant submits that on a number of dates she was rostered to visit several clients in different locations. The roster afforded her only barely sufficient time to travel between those locations with the result that she was unable to avail herself of her statutory breaks of 15 minutes and or 30 minutes, as the case may be, during the working day. The Respondent accepts that this was the case for a short period from February to March 2018 but states that it amended the rosters to rectify the problem as soon as it came to its attention.
There is a second aspect to the Complainant’s claim under section 12 of the 1997 Act. She submits that when she was rostered to work a twelve-hour shift in a client’s home, she was not afforded the opportunity to take a rest break as she had to be available at all times to attend to the client. The Respondent submits that this was not the case as the client was normally asleep for a large part of the Complainant’s twelve-hour shift and she, therefore, had ample opportunity to take her breaks in the circumstances.
ADJ-00018463/CA-00023749-004: This claim relates to the manner in which the Respondent calculated the Complainant’s annual leave payments. The Complainant submits – and it is accepted by the Respondent – that payment for her annual leave was based on her average basic pay that did not take account of her 20% Sunday premium entitlement.
ADJ-00018463/CA-00023749-005: This complaint related to the manner in which the Respondent calculated payment for public holidays. The Respondent accepts that it inadvertently underpaid the Complainant by €382.42 in respect of the public holidays that fell during the period of her employment. The Respondent has offered to reimburse the Complainant by an amount equivalent to her economic loss. The Complainant is seeking compensation for the breach.
Section 12 of the 1997 Act: The Court finds that both complaints in relation to this section are well-founded and awards compensation of €750.00 each for both breaches (i.e. a total of €1,500.00). This payment is non-taxable.
Section 20(2) of the 1997 Act: This section provides that “pay in respect of an employee's annual leave shall … be at the normal weekly rate.” The Respondent admits that it did not take the Complainant’s Sunday premium entitlement into account when calculating payment for annual leave. It follows that the Complainant’s annual leave payment was not calculated by reference to her normal weekly rate of pay. The Court measures the redress due to the Complainant in respect of the Respondent’s breach of section 20(2) at €1,000.00. The actual amount of the underpayment to the Complainant will be taxable; the balance – compensation for the breach – is non taxable.
Section 21 of the 1997 Act: The Respondent admits that it inadvertently underpaid the Complainant in respect of public holidays. The Court measure the appropriate redress for this breach at €750.00 to include the economic value of the underpayment to the Complainant (€382.42). The latter amount only is taxable; the balance is non-taxable.
The Court so determines.
Signed on behalf of the Labour Court
23 August 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.