Complainant

Respondent

Parties

Geraldine Reilly

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-00068019-001

09/12/2024

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 administrative office is located and where she 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 9th 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 started her employment with Ann’s Homecare Ireland Limited on 7th March 2021 and remains in employment with the Respondent as of the hearing date. She works as a home care assistant in the County Dublin area.

The Complainant said that her working pattern had been to work shifts of 8am to 9pm a day. She worked 7 days over the course of two weeks and was paid in full for those 84 hours regardless of cancellations or travel time between calls. She received a letter from the Respondent dated 30th November 2023 which she says changed her terms and conditions. She did not agree to any changes in her working hours and raised a grievance in relation to this but no response was ever received.

The Complainant provided a payslip dated 21st July 2023 showing the amount of her wages for 84 hours per fortnight and another payslip dated 6th June 2024 showing the new manner in which her wages were paid. She said that she was now being paid for time spent at a call but no longer for the time that it took to get there and the time in between calls is no longer counted. Since 7th March 2024, her hourly rate of pay is €17.50.

She also gave evidence that the address on the complaint form for the Respondent, to which the hearing notification letter was sent, is her work address and the place she attends for business related activity.

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 she 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 9th 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 9th December 2024 and so I can consider any alleged contravention that occurred from 10th June 2024 up to the 9th December 2024.

The Complainant’s application is that I also inquire into any alleged deductions that were made between 30th November 2023 and 9th 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 this complaint within the usual six month time frame. She 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 10th June 2024, which is 6 months prior to the lodgement of this complaint on the 9th 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.”

The Complainant provided two payslips in support of her complaint. One is dated 21st July 2023 and the second is dated 6th June 2024. The Complainant has not provided any evidence whatsoever of what wages she received within the cognisable period. In other words, she has provided no evidence of any wages that she received between 10th June 2024 and 9th December 2024. The onus is on the Complainant to provide details of her complaint and the remedy that she is seeking. Particularly when alleging that there has been a deduction from wages, it is imperative that a complainant specify the exact amount that the properly payable wages are as well as specifying any alleged deduction therefrom. The Complainant in this case has not done this.

Further, 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.

The Complainant says that the properly payable wages are comprised of 84 hours per fortnight. However, as set out above, she has not provided any supporting evidence to show what properly payable wages were due to her in the cognisable period. No contract of employment, for example, was provided to demonstrate that the Complainant had a contractual entitlement to 84 hours per fortnight. I accept the Complainant’s evidence that her working pattern had been 84 hours per fortnight and that she had been paid in full for this time, but that is not the same as a contractual entitlement to payment for 84 hours per fortnight. The Complainant has failed to establish that she had such an entitlement.

The Complainant provided the letter dated 30th November 2023 from the Director of Operations which notified the Carer Team of the change. The letter 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….

This supports the Complainant’s evidence that there was a change in the manner in which hours were allocated and paid for. However, this letter was issued to a group of people and does not establish that the Complainant had a right to a guaranteed payment of eighty four hours per fortnight. The Complainant has not provided a contract of employment from either before this letter issued, or after, which would establish exactly what wages were properly payable to her within the cognisable period. Nor has she provided evidence of the hours that she did work within that time.

In the circumstances, I am not satisfied that the Complainant has established what wages were properly payable to her in the cognisable period. For that reason, it is unnecessary for me to continue to assess any alleged deduction and 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