ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00023775
A Social Care Worker
A Care Company
Aislin Reid IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 09/10/2019
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
In accordance with Section 41 of the Workplace Relations Act, 2015 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.
The Complainant had been employed with the Respondent previously and returned to work from 20th March 2018 as a Social Care Worker at a rate of €15 per hour for 19 hours per week as she had completed her degree.
Summary of Complainant’s Case:
|CA-00030370-001The Complainant did not receive a written statement of her terms of employment in relation to the work commenced on 20th March 2018.
The Complainant was paid an hourly rate of €15 per hour from 20th March 2018. On 1st August 2019 she met with her employer who informed her she was on the wrong hourly rate and this would be reduced to €11.50 per hour which she was paid as a Care Assistant from July 2016 to August 2017. CA-00030370-002
The Complainant says she was not paid 619 euro and was paid holiday pay of 164.3 euro on 31st July 2019 which she did not request.
The Complainant was informed she was on the wrong rate by her employer, as she was not qualified as a Social Care Worker. She claims a breach of S6 of the Payment of Wages Act 1991 and her employer has unlawfully deducted her pay. She seeks her pay remains at €15 per hour for 19 hours per week. She does not accept the reduction in her pay.
The Complainant does not accept she is not qualified for the role of Social Care Worker. She has a degree in Psychology and has experience in the role. The Social Care Worker Registration Board will take into account her experience in the role.
Summary of Respondent’s Case:
The Respondent disputes the complaint of the Complainant.
The Complainant was first employed by the Respondent as a Care Assistant in July 2016 on an hourly rate of €11.50. She left employment in September 2017 and returned in March 2018.
The Complainant returned to work with the Respondent as a Social Care Worker. The Respondent understood she received the necessary qualifications following leaving employment in 2017. The new role has increased responsibility and client intake and is paid at a higher hourly rate. The role requires a QQI level 7/8 in Social Care or Applied Social Studies, which the Complainant does not have. She has a level 8 Psychology degree.In July 2019 the Complainant advised she was finding the role difficult due to her training not being finished. Following the appraisal, the Complainant was removed from the role of Social Care Worker as she did not have the qualifications for the role. This resulted in a pay reduction of €3.50 per hour. In September 2019 the Respondent held a meeting with the Complainant to discuss her options to continue with a reduced level of responsibility. The Respondent had to reduce the Complainant’s position to a lower level of responsibility due to its duty of care to its service users.
A number of options were offered to the Complainant, one to shadow a Social Care Worker and assist if needed, or take a period of unpaid leave to get the necessary training and qualifications for the role. There are 2 weeks further training which the Complainant must complete prior to her return to work as a Care Assistant. The Respondent did not seek repayment of monies over paid.
Due to the verbal agreement made between the Complainant and her former Co-Ordinator, the Respondent was unaware the Claimant did not have the necessary qualifications. The Respondent denies any unlawful deduction of wages has occurred as they are deductions required under statute under S 5 of the Payment of Wages Act 1991 and relies on S4 of the Act:
(“3) Where a statement under this section contains an error or omission, the statement shall be regarded as complying with the provisions of this section if it is shown that the error or omission was made by way of a clerical mistake or was otherwise made accidentally and in good faith”
The Respondent relies on the Labour Court ruling in An Employer v A Worker [PWD1916].
The Claimant was not able to return to the role of Care Assistant as she did not have the necessary qualifications for that role either, and the Respondent has placed the Complainant on authorised paid leave to pursue the qualifications to be a Care Assistant.
The Complainant has been issued with a contract of employment to reflect her role.
Findings and Conclusions:
I have heard and considered carefully the oral and written submissions including those furnished on 22nd October 2019 and 7th November 2019.
The Complainant complains of a breach of S7 of the Terms of Employment (Information) Act 1994 as she was not issued with an updated contract of employment in March 2018 when she returned to work with the Respondent in a new role of Social Care Worker. The Respondent has since provided the Complainant with a contract of employment reflecting her current role.
Given the dispute between which has arisen between the parties, it would have been to their benefit if updated written terms and conditions had been provided to the Complainant in accordance with the Act.
I find the complaint is well founded and award 4 weeks wages compensation to the Complainant based on a 19 hour week at €11.50 per hour total €874.00 and direct payment of this by the Respondent.
The Complainant met with the Service Co-Ordinator in relation to returning to work in March 2018 and agreed to return as a Social Care Worker for 19 hours per week at €15 per hour. The Complainant was informed by the Respondent on 24th July 2019 she was not qualified as a Social Care Worker in accordance with service level requirements. The deduction in her pay commenced on 31 July 2019.
The Respondent says it is a fundamental term of the contract that the Complainant is qualified as a Social Care Worker, and that she was employed in error as Social Care Worker. The Respondent’s former Co-Ordinator was not present to give evidence.
The Respondent says the Complainant must complete QQI level 5 2 modules within 12 months of employment which has not been done. She must complete 2 more weeks in order to obtain qualification as a Care Assistant. They cannot put her on the roster until this is completed.
The Complainant disputes she is not qualified as a Social Care Worker and has furnished advertisements from other organisations which recognise a Psychology Degree as a qualification for Social Care Worker roles. She says the Respondent was aware she was studying for a Psychology Degree.
I am mindful of the decision of Mr. Justice McGrath in Balans V Tesco Ireland Ltd in considering S5(6)of the Payment of Wages Act 1991 which provides that where the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to an employee, then, except insofar as the deficiency of non-payment is attributable to an error of computation, the amount of the deficiency or non-payment should be treated as a deduction made by the employer from the wages of the employee on the occasion.
What are the wages properly payable by the Respondent on 31 July 2019?
The parties agree that the payment of 15 euro per hour was for work performed by the Complainant as Social Care Worker. On 24th July 2019 the Respondent informed the Complainant they were not satisfied with the Complainant’s qualifications for the role and removed her from the role of Social Care Worker. I accept it is a term of the Respondent’s contract that the Complainant is suitably qualified for the role of Social Care Worker. The Complainant should have been paid 15 euro per hour until 24th July 2019, and thereafter 11.50 euro per hour for other work done.
The complaint is well founded and I direct payment by the Respondent to the Complainant of arrears of wages for work up to 24th July 2019 at a rate of €15 euro per hour which is €212.80, holiday pay shortfall of €164.53, and compensation of €285.
Section 41 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.
The complaint is well founded and I direct payment by the Respondent to the Complainant of arrears of wages for hours of work up to 24th July 2019 at a rate of €15 euro per hour which is €212.80 holiday pay shortfall of €164.53, and compensation of €285.
Dated: 2nd June 2020
Workplace Relations Commission Adjudication Officer: Davnet O'Driscoll
Qualifications, fundamental term of contract, wages properly payable to employee