Complainant

Respondent

Parties

Raissa  Padilha Gama

Be Independent Home Care Limited

Representatives

Peter Dunlea

Peninsula

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00064800-001

16/07/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064800-002

16/07/2024

This hearing was conducted over the course of three days and in person at the Workplace Relations Commission situate in Lansdowne Road, Dublin. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021) the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend this hearing.

In line with the coming into effect of the Workplace Relations (Miscellaneous Provisions) Act, 2021 on the 29th of July 2021, I can confirm that the witnesses herein were required to give their evidence on oath or affirmation. This was done in anticipation of the fact that there may have been a serious and direct conflict in evidence between the parties to the complaint. It is noted that the giving of false statements or evidence is an offence.

The specific details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 16th of July 2024. In general terms, I will therefore be looking at issues, contraventions and legislative breaches that have arisen in the six-month period directly preceding this date – that is to say from the 17th of January 2024 to the 16th of July 2024 .

In the interests of fairness, the WRC acquiesced to an application made for the provision of an interpreter. A separate Interpreter presented on each of the three hearing days. It is noted that the interpreter is provided to assist the Adjudicator to conduct an orderly and fair hearing of the complaints being made by the Complainant in her preferred language. The interpreter did not guide or assist the person for whom the interpreter was sought. The Interpreter simply interpreted what was being said by the Complainant. I perceived there to be no difficulty in communication between the Interpreter and he Complainant. The Interpreter was invited to swear an oath/make an affirmation to well and truly interpret.

It should be noted that between the second and third date of hearing the complaints the Complainant invited me, as Adjudicator, to recuse myself. By way of response, I wrote to the complainant on the 13th of May 2025 in the following terms:

I confirm that I am not willing to recuse myself from completing these matters as I am not satisfied that you as the Complainant have raised any issue which might be regarded as a legitimate concern.

As the Complainant you have on each day of hearing been provided with excellent translation service at a cost to the WRC. I have not been aware that as the Complainant you were experiencing any difficulty with the procedures, and I have found instead that you have been able to make a clear case on your own behalf.

As the Complainant, you seem concerned that a legal opinion on file has not been given sufficient weight in circumstances where there has been no final submission, and we are still dealing with oral evidence. As the Complainant you can open this matter to me over the course of the next hearing day to be allocated to this matter.

I am not satisfied that the cost and time already invested in this matter should be wasted by allowing this matter start afresh.

The Complainant was not represented and made her own case. The Complainant’s complaints herein were run alongside two other sets of complaint so that I was dealing with three separate files of complaints – ADJ 52921, ADJ 54735 and 55765. All the complaints arose out of the same employment history.

When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth.

No objection was raised to any of the materials relied upon by the Complainant in making her case. The evidence adduced by the Complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant provided the WRC with supporting documentation and comprehensive submissions over the course of the hearing dates set aside to deal with these matters. The first submission is a handwritten note dated the 16th of July 2024. A legal opinion was provided in and around this time as well. I should note that this said legal opinion was given on foot of the Complainant’s then instructions and the advice contained therein relate to the Complainant’s case in the absence of any understanding of what the Respondent’s defence might be. I am not therefore bound to follow this advice as it is based on only half the facts.  Along with these documents the Complainant sent emails, whatsapp messages, rosters, schedules and medical reports etc.

A more formal rebuttal submission was received from the Complainant on the 28th of April 2025 in response to the then most recent submission made by the Respondent.

On the 10th of May 2025 the Complainant submitted a final submission stating:

Accordingly, I have now reformatted the materials to meet WRC guidelines, including a structured index, cover page, and clear section references. The attached documents replace the prior version in full and are submitted for your consideration in advance of the adjudication hearing.

Unfortunately, any new complaints raised in this final submission are out of time in circumstances where the employment relationship ended in June of 2024 following a long period of absence (starting in March of 2024) from the workplace by reason of illness.

In her workplace relations complaint form, the Complainant confirms her start date to have been the 30th of September 2023 and her end date to have been the 16th of June 2024. This amounts to 8.5 months of service.

The Complainant alleges elsewhere that she was unfairly dismissed by way of constructive dismissal and that she was discriminated against on the basis of her nationality and the fact that she held a non-EU work permit. The Complainant has made separate complaints across the three ADJ Files under the Organisation of Working Time Act and the Payment of Wages Act and the Terms of employment Information Act.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent entity was represented by Peninsula HR Services. The Respondent provided me with two written submissions a preliminary submission dated the 29th of November 2024 and a second submission dated the 25th of April 2025.

I have heard from one witness for the Respondent JVW. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. This included comprehensive work patterns engaged in by the Complainant whilst in the Respondent’s employment. All evidence was heard following an Affirmation. The Respondent witness was questioned by the Complainant.

The Respondent rejects that there has been a Constructive Dismissal and/or discrimination and does not accept any contravention of Employment Rights as protected by statute. In particular the Respondent has asserted that the Complainant had only worked for 8.5 months prior to the termination of the Contract of Employment.

The Respondent as asked me to consider the six-month period immediately preceding the issuing of the workplace relations complaint form herein obliging me to look at the dates between the 17th of January 2024 and the 16th of July 2024 for contraventions alleged.

The Respondent accepts that the Complainant was most certainly in the workplace from the 17th of January to 11th of March when she went off sick.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced over the course of three separate hearing dates.

The Complainant had initially commenced an employment with the Respondent company as far back as 2021. At that time the Complainant had combined working with the Respondent with her college studies and worked on a student visa which allows for maximum number of hours per week. The Complainant was very happy and built up a good rapport with certain clients that she was attending regularly. The Respondent was pleased with the Complainant and had invited her to apply to return following the expiration of her student visa. There was a break between her employment as a student and the commencement of her  employment on a full-time basis. I am satisfied that the break was such that I can only consider this employment to have started on the 30th of September 2023. 

Ultimately it seems that the transition from working as a student on the basis of as and when she was required was entirely different from working in a full time capacity which ultimately did not suit the Complainant.

As I understand it,  there was a change in the people who would normally prepare the schedules from around May of 2023 before the Complainant re-joined the workplace. The Complainant, unfamiliar with the new staff,  felt that her rostering had becoming somewhat unworkable as she was being expected to get between clients without adequate provision for travel time.

By September of 2023 the Complainant and the Respondent had jointly acquired a full work permit for the Complainant. This was a non-European work permit allowing the Complainant to work in Ireland. The Complainant could only work as a carer with the Respondent entity.  The Complainant had signed a Contract of Employment on the 28th of July 2023 with a commencement date of the 30th of September 2023. The Complainant was engaged as a full-time care assistant. The understanding was that the Complainant would now be available to do a 39-hour week (or 78 hours over two weeks). There is, I accept, a big emphasis on flexibility in the Contract of Employment. This includes flexibility as to place and as to hours and as to any spontaneous changes in the rota. The Complainant confirms in an email to her employer dated the 11th of October 2023 that she understood that she would have to be willing to work long days of up to twelve hours at a time. The Complainant gave evidence that it had been made clear to her that she would be expected to go to wherever the Respondent directed her to go. The Complainant also gave evidence that the scheduling was often unworkable from her point of view. There was a lot of changing of the schedule at short notice and there was a lot of wrangling with unworkable schedules where clients could be up to 10km apart. The Complainant gave evidence that from September 2023 she was immediately unhappy with how she was being rostered for work on the full-time work permit.

The Complainant says that her line Manager FC basically held the view that the Complainant needed to abide by whatever schedules she was given as there was an expectation that she would do the 39 hours a week. The Complainant took much of the discussions she had with FC as veiled threats as the Complainant was bound to this Employer in terms of her work visa. The Complainant says that FC often said to her that she, the Complainant needed to recompense the Employer for obtaining the work permit.

The Complainant was particularly aggrieved with the way she says she was being supervised by FC and another lady B and a third lady K. The various oral allegations made by her against all three of these ladies in the course of the hearing days before me, remain unproven and unsubstantiated. The Complainant certainly never raised these issues while still in the workplace. The ad hominem attack was seemingly reserved for the WRC hearing. It has to be noted that the Complainant never formally addressed any difficulties she might have had with these ladies with their superior on the Management chain - JVW – a woman with whom the Complainant was often in touch.

Any complaint she had in the course of her employment was in respect of her scheduling and rostering. The Complainant had made no complaints against any individual. This is hard to reconcile with allegations made at the WRC. The Complainant conceded in cross examination that she had regularly been communicating with the relevant Manager (JVW) in respect of the issue of the difficulty around scheduling. She never once raised a Grievance or issue concerning these women three women FC, B and K.

The Complainant was living in Donnybrook but her catchment area for visiting vulnerable and elderly clients was out in Blackrock and Dun Laoire. The Complainant gave evidence that in October of 2023 she was being given unworkable schedules that involved working from 8am to 9pm. The Complainant says that the times estimated for the movement between jobs was woefully inadequate. In particular, the Complainant seemed aggrieved that she was being asked to attend a client in Ballyboden which was very far from her regular jobs. The Complainant says she generally relied on walking between jobs though had previously had a bike. My belief is that a lot of the rosters had been prepared with the bike in mind. I understand a lot of the carers use bikes.

The Complainant did raise these issues with the scheduling team, including FC. She says that she had told them that she had been working for six weeks non-stop when she raised her issues. The Complainant confirmed that she was getting paid for her work but that the long hours left her with no free time. Her concern was the lack of free days being provided to her. I have read the correspondence between the scheduling team and the Complainant starting on or about the 11th of October 2023 and resting with some sort of agreed compromise between FC and the Complainant dated the 19th of October 2023 to which the Complainant was in agreement – per the email from her dated October 19th at 13:48.

It is clear that the October 2023 email communication between the parties had been tense with management describing the Complainant’s communications as angry. I can also see that management were trying to prioritise the issues raised by the Complainant. I understand the Complainant had a face-to-face meeting with FC on or about the 12th of October. The Complainant says that FC had explained to the Complainant that the Respondent was doing nothing illegal as the employment Contract demanded flexibility. FC also seems to have made it clear that the Complainant could not make demands concerning which clients she would and would not attend to. It seems to me that FC made it abundantly clear that it was for the Employer to designate the workload in as practical way as possible.

In her evidence the Complainant did confirm that things did improve in the workplace for a while after the agreement they reached on October 19th of 2023.

Unfortunately, matters came to a head once more four months later in and around the end of February 2024. The Complainant had had a meeting with FC on the 7th of February and there were disagreements between line Manager and herself as to the levels of availability being asked of her.

The Complainant again expressed dissatisfaction (raised in emails) with what she perceived to be the  changes to her availability without consultation and/or permission. I am satisfied that the Quality Safety and compliance Manager (JVW) overseeing the scheduling process was aware of the issues raised by the Complainant and directed her team to look at the Complainant’s schedule stating:

To please keep her travel distance between calls no more than 2.4km with 15 minutes between calls

The Complainant did confirm in evidence that JVW did seem to understand the Complainant’s issues and had had good will towards her. It was made clear to the Complainant in an email from JVW on February 29th that whilst the team were working out a schedule for the Complainant to ensure consistency and reasonable travel times, this would involve changing the schedules of other carers and there was an overarching  need to ensure that all calls to all clients are covered as part of any ongoing bedding in process. In this regard, evidence was also given by the Respondent witness JVW (the Quality Safety and compliance Manager) that clients were not blacklisted in any way and the Respondent aimed to ensure that any issues would be worked through rather than allow a carer flatly refuse to attend a particular client. JVW flatly denied that some sort of favouritism operated for carers from Ireland or Europe as against Brazil.

The Complainant continued to be dissatisfied, and I note from an email sent by JVW to her scheduling team (on the 1st of March 2024) that there is an element of exasperation expressed by JVW as the Complainant had called in sick again:

I honestly do not know anymore with her. She is off sick again so I am going to let Carmen address her absences as well. We cannot be doing schedules to fit her needs. It has to fit the business needs.

I think this last point became the sticking ground between the parties as the Complainant, to my mind, wanted a bespoke arrangement to suit her availability and demands whilst the Respondent simply needed to ensure that all the work got done.

I was satisfied that in the course of evidence heard on the 29th of April 2025 that the Complainant’s assertions as to the number of hours she was expected to work was somewhat dismantled by a careful examination of the comprehensive scheduling data provided by the Respondent. In the end it became clear that eh complainant was not regularly working excessive hours. The calculations, in fact, often came in at considerably less than the complainant had been asserting.

I am willing to accept that the Complainant occasionally did have to work in excess of the 78 hours a fortnight she was contracted to work. This did not happen every week but I can infer from the correspondence between the Respondent staff that they knew that the Complainant was somewhat justified in the claims she was making.

I note (from the medical certificates provided) that soon after the February March interaction the Complainant went out sick for long tranches of time from the 29th of February 2024 to the middle of June 2024 with the last two months to three months being a solid absence. The Complainant gave evidence that her last day of work prior to going out sick was the 8th of March 2024.

This date is significant because the Complainant was not in the workplace from the 8th of March 2024 through the date of her resignation (June 2024) and up to the date that the workplace relations complaint form issued in July of 2024. It is, to my mind, significantly more difficult for the Complainant to demonstrate that there have been wilful contraventions of employment legislation when there has been no active employment relationship for much of the six months immediately preceding the 16th of July 2024.

However, it is clear that the Complainant was in the workplace from January 15th 2024 and March 8th 2024 which is a portion of the cognisable period I am looking at.

As noted, the Complainant tendered her resignation on the 16th of June 2024 and in her evidence the Complainant stated that this was a stress related resignation brought about by the attitude and actions of the Employer.

The Complainant issued the workplace relations complaint form herein on the 16th of July 2024. In the course of the hearing, it was explained to the Complainant that the WRC Adjudication process will (in general terms) only be looking for breaches of employment rights which have occurred during the six-month period immediately predating the date on the complaint form. Therefore, for the purpose of this hearing I am bound by Statute to consider the six-month period immediately preceding the 16th of July 2024. My starting date is the 15th of January 2024.

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00064800-001 – This is a complaint concerning excessive work hours which might more properly have been brought under the Organisation of Working Time Act of 1997. It is addressed elsewhere.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064800-002 – The Complainant has provided me with no evidence under this heading and I cannot find in her favour.

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00064800-001  - The complaint herein is not well founded and fails

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00064800-002 – The complaint herein is not well founded and fails.