Complainant

Respondent

Parties

Tommy Wong

Danu Homecare Ltd

Representatives

Hamilton Turner Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00068042-001

11/12/2024

This matter was scheduled to be heard at 12 o’clock on Wednesday 2nd April 2025. At the time the hearing was due to begin, there was no appearance by or on behalf of the Respondent. The Adjudication Officer checked the address that the hearing notification letter was sent to and the Complainant gave sworn evidence that this address is where the office is located and where he attends for business related activity.

The Complainant works for the Respondent as a home care assistant and submitted this complaint under the Payment of Wages Act, 1991 on 11th December 2024. The Complainant gave evidence under oath at the hearing and also provided a booklet of supporting documentation.

The Complainant’s representative made an opening submission in relation to this matter and a number of related cases. He stated that there are seven Complainants bringing complaints under the Payment of Wages Act, 1991. Each of the Complainants are or were employees of the Respondent. Each Complainant had been an employee of Ann’s Homecare Ireland Ltd until October 2023 when, under European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, their employment transferred to the Respondent. The Complainants were employed to work seven 12 hour shifts, which equated to eighty four hours per fortnight. In November 2023, one month after the transfer of the Complainant’s employment to the Respondent, a letter was sent to each Complainant to say that their working time would change.

As homecare assistants, the Complainants made several home visits per day and used their own vehicle to travel between each property. The change that occurred is related to the time spent between each home visit. The Complainants had been receiving a flat rate for eighty four hours per fortnight, but this changed to no longer being paid for travel time between home visits. The Complainants were promised a minimum of sixty hours per fortnight. It was submitted that they still worked seven 12 hour shifts, but were no longer being paid for time between calls. They did not agree to this change and sought support through their union. A grievance was raised internally and a conciliation process entered into, but without any satisfactory resolution.

The Complainant’s representative applied to extend the cognisable period on behalf of each Complainant. It was requested that the Complainant could recover loss for the period from when the change was implemented in November 2023 until the complaint form was lodged in December 2024. The basis of this application was that they had engaged in good faith in the conciliation process and should not be penalised for the fact that there was no satisfactory resolution.

The Complainant is seeking payment of the difference between the original 84 hours per fortnight and the reduced 60 hours per fortnight which the Complainant now receives.

Complainant’s evidence

The Complainant gave evidence that he began working with Anns Home Care Ireland Limited on 4th February, 2022 and that he is still employed by the Respondent. He says that his employment was transferred to the Respondent in October 2023 following a TUPE process.

The Complainant’s pattern of work up to that point was that he had to be available to work shifts from 8am to 9pm. He was working for 13 hours per shift, but paid for 12. He would work 4 days per week followed by 3 days the following week which came to a total of 84 hours per fortnight.  He had an agreement that he was to be paid in full for 84 hours each fortnight. This included time spent travelling between the homes of the patients he was assigned to care for. The Complainant provided a copy of an email which he says clarifies his contract. The email is from Ms. Rachel Sheehy and is dated 3rd February 2022. It states that a copy of the contract is enclosed so that the Complainant can familiarise himself with it and prepare any questions ahead of meeting to sign it. Ms. Sheehy outlines four “points to note”, two of which are relevant to this complaint. They are:

1.       All of our contracts for every employee state “casual” on the front page. This is because of the nature of the home care job the hours and clients can change and vary depending on several circumstances. You are still being employed for a Full Time role with 8am – 9pm availability and you are being employed as a full time care assistant. You will receive mileage payment of 35c per km form your 1st call to your last call and your working days will be paid at 12 hour paid days as per agreement at interview stage

2.       The contract states “up to 48 hours” in relation to hours of work. This is more in relation to the 4-day week. The 3-day week will obviously be less than that and your 4-day week may not reach exactly 48 hours but 48 hours would be the maximum over 4 days that a carer can work.

The Complainant said that this shows that he was being paid to be on call and that his 84 hours per fortnight were guaranteed hours. He gave an example that if a call was cancelled, then he still received payment for 84 hours per fortnight as these were guaranteed hours.

The Complainant received a letter dated 30th November 2023 which stated that, due to a change in funding from the HSE, all Carers would be transitioned to a new contract. The new contract guaranteed a minimum of 60 hours per fortnight, a change from the 84 hours per fortnight that the Complainant had previously been paid for. The Complainant said that he did not agree to this change and despite expecting to get a new contract following this letter, he never received one. His wages changed from 84 hours per fortnight to 60 hours per fortnight and that was a big drop. He was still working the same hours, but getting paid less. He said that nothing changed with the work or anything, just the guaranteed hours and so he raised a grievance through his union.

He provided a number of payslips with the following dates, hours and net payment amounts:

9th June 2023 – 96 hours – €1,511.04

7th July 2023 – 84 hours - €1,459.98

4th August 2023 – 84 hours - €1,442.66

18th August 2023 – 86 hours - €1,524.13

1st September 2023 – 120 hours - €1,852.21

15th September 2023 – 84 hours - €1,352.40

29th August 2024 – 59.5 hours - €1,188.07

12th September 2024 – 61.5 hours - €1,370.27

26th September 2024 – 60.25 hours - €1,321.03

10th October 2024 – 64 hours - €1,351.22

21st November 2024 – 53 hours - €1,079.53

5th December 2024 – 54 hours - €1,094.97

The Complainant is claiming for the difference between what he is now paid and his previous flat rate of 84 hours per fortnight.

The Complainant also gave evidence that the address provided for the Respondent at Omega House is the administrative office for the company and the usual place of business where he would attend for all meetings and training.

The Respondent did not attend the hearing and no submissions or written communication of any kind was received from the Respondent in advance of the hearing date.

At the time the hearing was due to commence, I enquired of the Complainant if the address provided was for an active administrative office and he confirmed that it was. I confirmed that the hearing notification letter was issued by post to the Respondent’s usual place of business on 11th February 2025.

Following the hearing, I was notified by a case officer that a phone call had been received from the Respondent who wished for a representative to come on record, however no application was received at that time requesting any postponement or re-listing of this and/or related cases. A representative subsequently did come on record. On 28th August 2025, the Respondent’s representative asked for the cases to be relisted due to an error in communication. The Complainant did not consent to the matter being relisted and, in the circumstances, given the reasons advanced and the passage of time, the Adjudication Officer did not agree to re-list this case. However, considering this correspondence, it is evident that the Respondent was on notice of the hearing date and arrangements but did not attend.

Application for an extension of Time

The Complainant lodged this complaint on the 11th December 2024. The Complainant’s representative made an application to extend the time for bringing the complaint in relation to the deduction of wages which occurred outside the six month period preceding the lodging of the complaint.

Following the judgement of Hogan J in Health Service Executive v. John McDermott [2014] IEHC 331 where he held that the Labour Court was correct in deciding that each and every alleged deduction under the Payment of Wages Act, 1991 was a new contravention, I am satisfied that I can examine any alleged contravention of that Act that occurred within the cognisable period. The cognisable period is the six month period preceding the receipt of a complaint form by the Director General of the Workplace Relations Commission. In this case, the complaint form was submitted on 11th December 2024 and so I can consider any alleged contravention that occurred from 12th June 2024 up to the 11th December 2024.

The Complainant’s application is that I also inquire into any alleged deductions that were made between 30th November 2023 and 11th June 2024. In other words, it is an application to extend the time frame for consideration of the complaint.

Section 41(6) of the Workplace Relations Act, 2015 states:

Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The Complainant is effectively making an application to apply section 41(8) of that Act. That section states:

An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

The application for extending time is made on the basis that the Complainant engaged in good faith in a conciliation procedure and awaited its outcome prior to presenting his complaint within the usual six month time frame. He requests an extension of time in relation to the deduction of wages which occurred outside the six month period preceding the lodging of this complaint.

As noted above, section 41(8) of the Workplace Relations Act, 2015, allows an extension of time if reasonable cause for the delay in lodging the claim is shown. The timeframe may be extended by up to a further six months.

For an extension of time to be granted, the Complainant must provide an explanation for the delay and offer a justifiable excuse for the delay. The Complainant must establish a causal connection between the reason for the delay and the failure to present the complaint in time. Finally, it must be shown that the complaint would have been presented in time if not for the factors relied upon as reasonable cause. It is the actual delay that must be explained and justified.

The explanation and justification for the delay in this case is that the Complainant had engaged in a conciliation process and awaited the outcome of that prior to submitting the complaint. The Labour Court has considered this issue on multiple occasions, albeit in a different type of case.

In Health Service Executive - And -Ms Rebecca Forde EDA2234, the Respondent made a submission to the effect that the Court has made it clear repeatedly that utilising a grievance procedure does not provide reasonable cause for the submission of a late claim. It highlighted two relevant cases namely:

Business Mobile Security Ltd. t/a Seneca Limited v. John McEvoy EDA 1621, in which the Court dealt with this matter at length. [and in]

Brothers of Charity Services Galway v Kieran O’ Toole EDA 177, the Court determined that utilising internal procedures could not be accepted as preventing the initiation of a complaint within the statutory limits.

It was stated that “The Court has repeatedly referred with approval to the cases quoted.”

The Court stated the below in its determination of the issue:

As the Respondent noted, the Court has dealt extensively in the ‘McEvoy’ and the ‘Brothers of Charity’ cases, see case references above, with the argument that a worker was delayed in lodging a complaint due to the fact of them pursuing internal processes. It is not necessary to reiterate at length here the Court’s view other than noting that, ordinarily, of itself and unless there are circumstances that could warrant an exception, the utilisation of an internal process does not justify delay in bringing proceedings.

The above case was related to complaints under the Employment Equality Acts 1998 – 2015, rather than the Payment of Wages Act, 1991 and addresses an internal grievance process rather than a conciliation process. However, the principle applied is sound and, in my view, is equally applicable to a conciliation process as to an internal process. Following the reasoning of the Labour Court that the utilisation of a grievance procedure does not provide reasonable cause, I am not satisfied that reasonable cause exists in this case to consider any alleged deduction that occurred outside the cognisable period, namely before 12th June 2024, which is 6 months prior to the lodgement of this complaint on the 11th December 2024.

I will therefore consider whether there has been an unlawful deduction from the Complainant’s wages between 12th June 2024 and 11th December 2024.

Complaint under the Payment of Wages Act, 1991

The Complainant’s complaint is made under the Payment of Wages Act, 1991. Section 5 of that Act provides as follows:

“5. (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.”

And

“5(6) Where—

(a) 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 the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

Section 5(6) of the Payment of Wages Act, 1991 was considered in Balans v. Tesco Ireland Limited [2020] IEHC 55. In that case, MacGrath J. re-affirmed the proposition that the first matter to be determined is what wages are properly payable under the contract of employment. If it is established that a deduction within the meaning of the Payment of Wages Act, 1991 has been made from the wages properly payable, it is then necessary to consider whether that deduction was lawful. MacGrath J. stated at paragraphs 34 and 35 of the judgement:

“Section 5 of the Act of 1991 prohibits the making of deductions from wages save in certain circumstances. Section 5(6) 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 the employee, then, except insofar as the deficiency or 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.

Central to the court’s analysis must be the concepts of wages properly payable and the circumstances in which, if there is a deficiency in respect of those such payments, it arose as a result of an error of computation.”

MacGrath J. went on to consider the case of Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 IR 478 which contemplated the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Referring to that case he stated:

“This decision supports the proposition that the first matter which should be addressed by the Labour Court is to determine what wages are properly payable under the contract.”

In the first instance therefore, I must be satisfied what wages are properly payable to the Complainant within the cognisable period.  

The Complainant says that the properly payable wages are comprised of 84 hours per fortnight. He gave evidence that these were guaranteed hours. In light of the above decision in Balans v. Tesco Ireland Limited, in assessing what wages are properly payable I must have regard to the contractual employment relationship between the parties.

The Complainant provided a contract of employment with a commencement date of 27th December 2021. The heading of this contract is “Casual Contract of Employment” and it contains several definitions in Schedule 1, namely:

Status (Full time, Part Time, Fixed Term): Casual – on an “as and when required” basis. 

Normal Working Hours: As and when required

Clause 4 of the Complainant’s contract of employment relates to Hours of Work. It states:

4.1    Except and to such extent as may be otherwise mutually agreed or specified in Schedule 1 of this Agreement, Your normal working hours will be up to 48 hours per week Monday to Sunday. The company reserves the right to determine the hours/days you work or alternatively, to change these working hours. You will receive as much notice as possible prior to any change.

Your rest periods will be in accordance with the Organisation of Working Time Act, 1997 and will be agreed with your Manager in advance.

4.2   From time to time, based on Ann’s Home Care Ire Limited business needs, you may be requested to work hours in addition to the normal working hours in addition to the normal working hours, and your co-operation in this regard will be appreciated. Where possible, any such requirement will be notified to you in advance by your immediate Manager/Supervisor.

4.3   You will not be entitled to additional remuneration for any hours worked in excess of normal hours per week.

Clause 9 of the Complainant’s contract of employment relates to lay off and/or short time and states as follows:

Ann’s Home Care Ire Limited reserves the right to lay you off from work or reduce your working hours, where, through circumstances beyond its control, it is unable to maintain you in employment. You will receive as much notice as is reasonably possible prior to such lay-off or short time. You will not be paid during the lay-off period. You will be paid only in respect of hours actually worked during period of short time.

The Complainant provided a copy of the letter dated 30th November 2023 and it states:

“I regret to inform you that due to a change in our contract with the HSE, we are no longer being provided with funding for our 12 hour runs and our service needs to be adapted to fit within the parameters of the Authorisation Scheme operated by the HSE for the provision of Home Care.

After careful consideration, and in an effort to avoid redundancies, and protect our Carer Team, we have no option except to transition all of our Carers in this area to a new contract. This contract will guarantee a minimum of 60 hours per fortnight. This is a minimum guarantee and allows you to work additional hours that may become available in addition to this. We are continuing to work with the HSE to continue to grow our hours in the area. There will also be a new higher 30-minute rate where two half-hour calls take place back-to-back….”

The Complainant also provided a copy of an email from Ms. Rachel Sheehy dated 3rd February 2022. The email encloses a copy of the contract so that the Complainant can familiarise himself with it and prepare any questions ahead of meeting to sign it. Ms. Sheehy outlines four “points to note”, two of which are relevant to this complaint. They are:

1.       All of our contracts for every employee state “casual” on the front page. This is because of the nature of the home care job the hours and clients can change and vary depending on several circumstances. You are still being employed for a Full Time role with 8am – 9pm availability and you are being employed as a full time care assistant. You will receive mileage payment of 35c per km form your 1st call to your last call and your working days will be paid at 12 hour paid days as per agreement at interview stage

2.       The contract states “up to 48 hours” in relation to hours of work. This is more in relation to the 4-day week. The 3-day week will obviously be less than that and your 4-day week may not reach exactly 48 hours but 48 hours would be the maximum over 4 days that a carer can work.

The uncontested evidence of the Complainant is that his working pattern had been 84 hours per fortnight. He described these as guaranteed hours. The above email is consistent with the Complainant’s uncontested evidence that his working pattern was eighty four hours per fortnight and that he was paid in full for those eighty four hours. However, it also acknowledges that “the hours and clients can change and vary depending on several circumstances.” In any event, I must have regard to what is contained in the contract of employment itself.

The contract provided by the Complainant in this case does not guarantee any minimum amount of hours. It specifically states that “Your normal working hours will be up to [emphasis added] 48 hours per week Monday to Sunday.” This does not impose an obligation on the Respondent to pay the Complainant for 84 hours per fortnight. Further, in Schedule 1 of this contract, the Complainant’s status is described as “casual” and normal working hours are on an “as and when required” basis. This, again, does not guarantee the Complainant 84 hours per fortnight.

The contract of employment expressly reserves the employer’s right to change the Complainant’s working hours where it states in Clause 4 that “The company reserves the right to determine the hours/days you work or alternatively, to change these working hours.” This right is further expressed in Clause 9 where it states that the employer “reserves the right to lay you off from work or reduce your working hours, where, through circumstances beyond its control, it is unable to maintain you in employment.”

While Ms. Sheehy’s email reflects that the Complainant was engaged for a full time role and was to be paid for 12 hour days, this is prefaced by a statement that because of the nature of the job, the hours can change depending on several circumstances. Two clauses of the Complainant’s contract of employment then expressly give his employer the right to change his hours. In my view, the Complainant’s contract can not be relied upon to ground a claim that eighty four hours per fortnight are or were properly payable to the Complainant at the relevant time.

As this is a claim under the Payment of Wages Act, 1991, it is for the Complainant to show that the wages are properly payable.  Considering the foregoing, I am not satisfied that the Complainant has shown that he was entitled to wages for a guaranteed minimum of eighty four hours per fortnight. In other words, I am not satisfied based on the information provided that wages for those hours are properly payable.

As I am not satisfied that the wages claimed are properly payable, I find that this complaint is not well founded.

For the reasons set out above, I do not find that this complaint is well founded.

Payment of wages – properly payable