Complainant

Respondent

Parties

Valerie  McKenna

The Board of Management of Donore National School

Representatives

Self-Represented

Mr. Lorcan Maule, Mason Hayes and Curran

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-00067739-001

28/11/2024

The Complainant commenced employment with the Respondent on 25th September 2022. The Complainant remains a fixed-term, part-time member of staff of the Respondent.

On the 28th of November 2024, the Complainant referred the present complaint to the Commission. Herein, she alleged that the Respondent had failed to pay her for all hours worked and had consequently made an illegal deduction from her wages. In particular, she alleged that the Respondent failed to pay her hourly rate for all hours of work completed. By response, the Respondent stated that all wages, at the appropriate hourly rates of pay, were discharged to the Complainant and that no wages were due or owing to her.

A hearing in relation to this matter was convened for, and finalized on, 24th of February 2025. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint. All evidence was given under oath of affirmation and was opened to cross examination by the opposing side.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

In evidence, the Complainant stated that she was engaged as a “Bus Escort” within the Respondent organisation. The Complainant's role involved assisting children with special needs with transportation to and from school within the academic year. This process necessitated at least two trips: one in the morning, where she would collect the children from their homes, assist them getting onto the bus, bring them to the school, and assist them with departure; and then later in the day, assist the children with leaving the school, driving back to their homes, and exiting the bus.

By agreement, the Complainant would be picked up from her home by the bus driver, and then they would drive to the home first child due for collection and commence the working day.

At the start of the academic year in September 2024, the Complainant was informed that her route had been changed. In this regard, it was made clear to the Complainant that the first child she would pick up resided some distance away. This increased distance necessitated a period of time be added to the Complainant's workday: at the commencement of the day, the Complainant and the bus driver had to drive further to the child in question's home, and at the end of the day, the Complainant and the driver had to drive from the school to the child's home again. This, by the Complainant's calculation, led to an increase of over 6 hours per week in her working time for which she was not being remunerated.

The Complainant raised this issue with the Respondent shortly after the commencement of the school year, in October 2024. In this regard, the Complainant stated that her wages did not properly reflect the hours worked. She stated that under the current route, she had calculated that she would work for 26 hours and 15 minutes per week and was being paid for 20 hours only. The Complainant stated that this was a deduction of some 6 hours and 15 minutes of pay on a weekly basis.

After the Complainant did not receive a satisfactory reply, she issued a formal grievance on October 10, 2024. In this correspondence, the Complainant stated that on starting the role, she was contracted for 25 hours per week, and had in fact being working 27 hours per week. She stated that from the commencement of the new academic year, she was placed on a new route and had been working a total of 26.25 hours per week and was being paid for 20.

The Respondent issued a response on 15th November 2024. Herein, the Respondent quoted sections of the relevant circular, stating that a Bus Escort’s working day was generally considered to commence when the first child that requires assistance boards the service. The Bus Escort would then be considered as finishing their working day when the last child who requires escort assistance is dropped off at their destination. These times, morning and afternoon, determined the working hours of the escort. In this regard, the Respondent stated that the funding is provided for the following hours: in the morning, from when the first child who requires escort assistance is picked up, to the completion of the route to the school, and the escort's return journey back to the pick-up point of the child's home and in the afternoon, when the Bus Escort has picked up the child from the school and dropped them back at their home.

Following the receipt of this correspondence, the Complainant began to record  contemporaneous timesheets. These timesheets were opened in evidnce, and set out, in the Complainant’s view, her correct start and finish times.

Having regard to the foregoing, the Complainant submitted that the Respondent has not discharged her wages in full and she submitted that her complaint should be deemed to be well-founded.

By submission, the Respondent accepted that the Complainant was engaged as a “Bus Escort”. The Complainant entered into a fixed-term contract of employment with the Respondent in September 2022. The Complainant was offered a further fixed-term contract in August 2023. Both contracts of employment provided for 25 hours of work per week, with the last fixed-term contract concluding on 31st August 2024. For the school year 2024 / 2025, the Complainant was provided with a 20 hours of work per week, the calculation of which will be set out below.

In this regard, the weekly hours of work provided to a bus escort fluctuate, depending on the school's needs in the current year. The bus service in question is provided and paid for by the Department of Education. Any school wishing to avail of the service must complete an application to a Special Education Needs Organiser. The service is provided by Bus Éireann and the Respondent liaises with that body in relation to the prevision of the service. An application must be made on behalf of each student wishing to avail of the bus service to the National Council for Special Needs. The hours provided depend on the length of the journey of the children using the service, the number of children on the service, and the opening and closing times of the school. There is no guarantee that hours will remain the same from year to year in any school or for any escort. As an example of the same, three people with special needs moved schools at the end of academic year 2022 to 2023. One pupil moved schools at the end of 2023 and 2024. The Respondent receives a grant to pay for bus escorts based on the required hours that the bus escorts work. For the school year 2024 to 2025, the route that the Complainant was operating on changed as a result of a review of the routes. On foot of this review, the Complainant was offered a contract for 20 hours per week for the relevant school year. The Respondent is not in charge of the route, which remains within the management of an inspector for Bus Éireann.

Regarding the present matter, the Complainant's hours of work are determined as follows: The Complainant is paid for the first pickup of the child at approximately 8:50 a.m. and works until 9:30 a.m. The Complainant resumes work at 1:30 p.m. until 4:00 p.m. This involves two school runs to facilitate the junior school finishing at 1:50 p.m. and, upon completion of the junior run, a wait of approximately 25 minutes at the end of the school until the senior end of the school finishes at 2:50 p.m. A copy of the Complainant's route, demonstrating the commencement time, the duration of the journey and the proposed finishing times was opened by the Respondent.

The Complainant's hours of work are determined in line with the Department of Education's information note on school transport escorts. This circular provides that the school transport service will generally be considered to have started when the first child is collected and will be finished when the last child is dropped at their destination.

Regarding the present matter, the Respondent submitted that the Complainant calculated her hours incorrectly. In this respect, the Respondent referenced the working time records submitted by the Complainant. They submitted that the Complainant had recorded the time from when she was collected in the morning as working time, when in fact her working time commenced with the collection of the first child. In addition to the same, the Complainant recorded her working day as finishing when she returned home, as opposed to when the final child was dropped to their destination. Having regard to the foregoing, the Respondent submitted that the Complainant had miscalculated her working hours and, as a consequence of the same, they submitted that the Complainant had not been underpaid at any stage of her employment and had not suffered any deduction, illegal or otherwise, from her wages.

In the present case, the Complainant has alleged that the Respondent had routinely miscalculated the number of hours she worked from the commencement of the academic year 2024. In this regard, the Complainant submitted that during this academic period the route she was assigned necessitated additional time to complete her duties. Rather than pay her for these increased hours, the Respondent instead cut her hours from 25 to 20. In circumstances whereby the Complainant was not remunerated for al hours worked, she submitted that she suffered an illegal deduction from her wages in contravention of the Act. In denying this complaint, the Respondent submitted that the Complainant miscalculated her wages by including what, in effect, amounted to commuting time. In circumstances whereby such activities are not considered working time, the Complainant had no entitlement to be paid in respect of the same. As a consequence, the Complainant was remunerated for all hours worked, and the Respondent submitted that she did not suffer any form of deduction from her wages.

Section 1 of the Payment of Wages Act 1991, defines “wages” as “any sums payable to the employee by the employer in connection with his employment, including…any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise”

In the matter of Marek Balans v Tesco Ireland Ltd [2019 No. 83 MCA], McGrath J stated that when considering complaints under the present Act,

“Central to the Court’s analysis must be the concepts of wages properly payable and the circumstances in which there is a deficiency in respect of those such payments”.

In this regard, Clause 5.01 of the Complainant’s contract of employment provides that,

“(The Complainant’s) salary shall be €15.70, gross per hour paid by the Employer weekly subject to the deduction of all necessary payroll deductions”.

Regarding the method of calculation of this hourly rate, the Respondent placed reliance on the Department of Education’s “Information Note on School Transport Escorts”. Section 4 of the same states that,

“School Transport Escorts will generally be considered as staring their working day when the first child who requires escort assistance boards the service. The Escort will generally be considered as finishing their working day when the last child who requires escort assistance is dropped at their destination”.

In this regard, it is apparent that the Respondent’s internal rules provide that the Complainant’s working time does not include travel to the first destination from her home at the commencement of the run, or travel from the school to her home on the completion of run.

In the matter of (Federación de Servicios Privados del sindicato Comisiones obreras v Tyco Integrated Security SL, Tyco Integrated Fire & Security Corporation Servicios SA, (C266/14), the ECJ held as follows,

“…point (1) of Article 2 of Directive 2003/88 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, in which workers do not have a fixed or habitual place of work, the time spent by those workers travelling each day between their homes and the premises of the first and last customers designated by their employer constitutes ‘working time’, within the meaning of that provision.”

In the present matter, it is common case that the Complainant did have a “fixed or habitual place of work”, or at least a fixed place of commencing work each morning. In this respect, the Complainant knew with certainty that she was to present herself at a particular address at the same time each morning for the duration of the academic year. In these circumstances, travel from the Complainant’s home to and from the first and final stops in the day cannot be considered “working time” and consequently will not attract remuneration within the terms of the Complainant’s contract of employment. 

By submission, the Respondent stated that the hours of work submitted by the Complainant appeared to include time spent travelling to and from the first and last appointment of the day. In this respect, they referred to the worktime records retained by the Complainant. These records demonstrated that the Complainant recorded her morning finish time as 9.50am. The Respondent submitted that this could not be the case, as the Complainant was deemed to finish work when the children arrived at school between 09.05am and 09.20am, and that the Complainant was including the time spent travelling to and from her place of residence as working time.

Having regard to the accumulation of the foregoing points, I find that the time spent travelling to and from the Complainant’s home to her first and last appointments of the day do not constitute working time at might attract a payment of remuneration. In addition to the same, I find that the Complainant’s calculations regarding her unpaid wages included such periods. As a consequence of the same, I find that the Complainant was correctly paid for all hours worked, and that she did not suffer an illegal deduction from her wages. In these circumstances I find that the present complaint is not well-founded.

I find that the present complaint is not well-founded.

Wages, Working Time, Commuting