Complainant

Respondent

Parties

Susan Connolly

Danu Homecare Limited

Representatives

Hamilton Turner Solicitors

Peninsula Business Services Ireland

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-00070319-001

25/03/2025

In October 2023, in accordance with the Transfer of Undertakings Regulations[1], the business of Ann’s Home Care transferred to the respondent.  Ann’s Home Care was a HSE approved provider with a contract to provide care to people in the Longford and Westmeath areas of “CHO 8,” the community health organisation area of the Midlands, Louth and Meath.  The complainant is a care assistant and her work involves making home visits to HSE service-users. 

During the Covid-19 pandemic, Ann’s Home Care (the transferor), and the HSE entered into what was referred to as an “off framework” agreement to offer 12 hours’ pay in return for 12-hour “blocks of care.”  This enabled the transferor to offer their employees pay to be available for 84 hours each fortnight; 48 hours in week one and 36 hours in week two.  This arrangement was outside the HSE’s standard tendering process.  In August 2023, the transferor accepted an invitation to participate in a new tendering process and agreed with the terms of the HSE’s Authorisation Scheme, which did not include pay for 12-hour blocks of care.   

By October 2023, when the “off framework” contract came to an end, efforts were made to continue the arrangements that had applied during Covid-19.  When no agreement could be reached, from Monday, December 4th 2023, the hours offered to the complainant and her colleagues were reduced from 84 hours to a guaranteed minimum of 60 hours’ work per fortnight.  The effect of the change meant that the complainant was no longer paid for the time she was not with a client, or the time spent travelling between clients.  She could be offered more than 60 hours’ work, and, in these circumstances, she would be paid for the hours worked.

Around 147 employees were affected by this change and the complainant and some of her colleagues joined the Unite trade union.  Several employees resigned, although some later returned to work with the respondent.  In February 2024, the union referred the issue to the WRC as a collective grievance.  In April and November 2024, the union and the respondent attended conciliation meetings at the WRC to try to resolve the employees’ grievance.  When no resolution emerged from that process, the union advised the employees to submit individual claims to the WRC as breaches of s.5 of the Payment of Wages Act 1991.

Mr Cunningham asked me to consider the judgement of the High Court in Earagail Eisc Teoranta v Doherty & Others[2] and Cleary & Others v B&Q Ireland Limited[3] where, for the purpose of a claim about an illegal deduction from wages, no distinction was made between “deductions” and “reductions.”

It is the respondent’s position that, as this matter concerns a change in the complainant’s pay that occurred in December 2023, this complaint is outside the time limit for submitting complaints which is set out at s.41(6) of the Workplace Relations Act 2015.

On behalf of the complainant, Mr Cunningham said that the complaint was lodged with the WRC on March 25th 2025, following the end of the conciliation process.  The complainant waited for the outcome of that process before bringing this complaint to the WRC.  She is seeking an extension of the time limit provided at s.41(8) of the Workplace Relations Act, to encompass her losses in the 12 months before her complaint was lodged.

The complainant began working as a home care assistant with Ann’s Home Care in October 2022.  She transferred to the respondent in October 2023.  On the date of this hearing, her hourly rate was €17.00, with premiums paid for working on Sundays and public holidays.  A rate of €10.00 is paid for a call to a service-user that takes a half an hour, with €11.00 per half an hour paid for calls on Sundays.  She uses her own car and receives a travel allowance of 35 cents per km.

At the hearing, the complainant said that she and her colleagues moved from another provider because they were attracted to the higher pay in Ann’s Home Care.  Mr Cunningham said that complainant responded to an advertisement for a job based on a requirement to be available for seven 12-hour shifts per fortnight.  This arrangement applied from her start date in June 2022.  In December 2023, her terms and pay were unilaterally changed and she was given a guarantee of 60 hours’ work each fortnight.  Effectively, the complainant claims that she continues to work for 84 hours per fortnight, but her time between visits to clients and the time spent travelling to clients is now unpaid.  The complainant claims that that she is not paid for all the hours she works and that her wages have been reduced by €336.00 per fortnight. 

In his submission on behalf of the complainant, Mr Cunningham referred to paragraph 4 of the Transfer of Undertakings Regulations which provides that, following the transfer of a business, the transferor’s rights and obligations transfer to the transferee, the respondent in this case.  Mr Cunningham said that it was a term of the complainant’s contract that she was required to work seven 12-hour shifts each fortnight, and that she was paid for working those hours.  In the course of a 12-hour shift, the complainant would attend at the home of a service-user, carry out her duties and then travel to the next service-user.  The time spent by the complainant travelling between the clients’ houses was considered to be working time.

One month after the business of Ann’s Home Care was transferred to the respondent, the manner in which the complainant’s hours of work were calculated was changed.  The complainant does not consent to this change.

Mr Cunningham referred to s.5 of the Payment of Wages Act 1991, which, prohibits a deduction from the wages of an employee unless the deduction is authorised by statute, or is in accordance with an employee’s contract of employment, or, if the employee has given their consent beforehand in writing.  None of these conditions apply to the reduction in the complainant’s wages.

Mr O’Brien from the Unite trade union said that 30 employees joined the union in late 2023 and early 2024.  Although the union tried to engage with the respondent, they refused to recognise the union.  In 2024, they engaged in conciliation.  The affected employees were offered a gift voucher of €200 as compensation for the change.  In late 2024, when the conciliation hadn’t achieved a satisfactory outcome, Mr O’Brien said that the only way to seek to recover the lost pay was to submit a Payment of Wages claim.

For the respondent, Mr Dunlea said that the complainant was recruited on the basis of terms and conditions negotiated with the HSE in 2022.  Because service-users required support in the mornings and evenings, the arrangement that provided 12-hour blocks of care often meant that the complainant and her colleagues were scheduled for non-working time in the middle of the day.  In October 2023, when the original contract came to an end, the HSE unilaterally modified the terms of their agreement with the respondent.  The respondent engaged in negotiations with the HSE to address the impact on employees, but it wasn’t possible to revert to the original terms agreed during Covid-19.

Arising from this, the respondent changed the complainant’s contract of employment, so that she was offered a guarantee of 60 hours’ work per fortnight.  This new arrangement means that the complainant is guaranteed pay for 60 hours per week, even if she is not rostered for 60 hours.

The respondent acknowledged that this resulted in a reduction in the number of hours for which the complainant has been paid since December 4th 2023.  Mr Dunlea said that the respondent’s managers engaged in extensive consultation with their employees about this change, and meetings were held at various locations around Ireland.  The managers decided that, to avoid making staff redundant, and, to provide them with secure employment, the best course of action was to provide a guarantee of 60 hours’ work and 60 hours’ pay per fortnight.

Time Limit for Submitting a Complaint

The complainant’s case is that contrary to s.5 of the Payment of Wages Act 1991 (“the Act”), her wages have been reduced since December 4th 2023.  On the date on which she submitted this complaint, March 25th 2025, she claims that the reduction is ongoing.  In accordance with s.41(8) of the Workplace Relations Act 2015, she has applied for an extension of the time limit, so that I can consider her losses for the 12 months prior to March 25th 2025.  Due to my findings on the substantive issue, I find that there is no requirement to consider this application and I will proceed now to examine the complainant’s claim that the reduction in her wages is unlawful.

Complaint under the Payment of Wages Act 1991:  The Relevant Law

Section 1 of the Act provides a definition of wages:

[W]ages in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including -

(a)  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, and,

(b)  any sum payable to the employee upon the termination by the employer of his contract without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice.

In Ireland, as in most countries, the law provides for deductions from wages for tax and social welfare, and for deductions that are agreed with the employee.  This is addressed at s.5(1) of the Act:

(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.

Section 5(6) addresses the circumstances in which wages which are properly payable are not paid:

(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.

In her submission, the complainant included a number of payslips, the most recent of which was dated March 13th 2025.  An examination of the payslip shows that the complainant’s hourly rate of pay on that date was €16.50 and that she earned €1,139.00 gross, for working 63.5 hours. 

A payslip dated February 27th 2025 shows that her hourly rate was €16.50 and she was paid €1,130.50 gross for working 63.5 hours.  The difference in pay of €8.50 for working the same number of hours is related to the difference in the number of half-hour slots the complainant worked in these fortnights.   

No payslips were included in the complainant’s submission for the period before the changes were implemented in December 2023.

In a decision of the High Court in 2017, Petkus v Complete Highway Care[4], it was held that a reduction in wages, as opposed to a deduction, does not remove the issue from the jurisdiction of the Payment of Wages Act.  That case was remitted back to the former EAT for a determination.  A similar outcome emerged from the High Court in 2020, when the case of Marek Balans v Tesco Ireland Limited[5] was sent back to the Labour Court for a determination.  Setting out his rationale for so doing, Mr Justice MacGrath stated,

“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 concept of wages properly payable…”

Taking my authority from this judgement, before considering if the reduction in wages was illegal, my first task is to determine if wages for 84 hours per fortnight was properly payable.

Wages Properly Payable

I accept that, from the commencement of her employment with the respondent until December 4th 2023, the complainant was paid for 84 hours per fortnight, regardless of the number of hours she worked.  I accept also that she had an expectation that this would continue.  However, she submitted no contract, handbook or written agreement that shows that she had an entitlement to be paid for 84 hours per fortnight.

The letter issued to the complainant and her colleagues on November 30th 2023 was to inform the staff of the change in the way the HSE intended to pay for the provision of home care services.  In the first and second paragraphs, the director of operations set out the situation in clear terms:

“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.”

It is apparent that, during Covid-19, an unusual arrangement was entered into between the HSE and the transferor when there was pressure on the health services to provide care to people in their homes and, when it was difficult to recruit staff in the context of the availability of the pandemic unemployment payment.  The employees gave evidence that many of them left jobs to work for the attractive terms on offer of 84 hours per fortnight.  This arrangement meant that they were paid for the time they were between clients and for the time spent travelling.

While the complainant did not provide a copy of the contract she was issued by the transferor, I understand that, in November 2023, she was issued with an “Addendum to Contract of Employment” which replaced paragraph 4.1 of her original contract and provided her with a guarantee of 60 hours’ work per fortnight.  No evidence has been submitted that, when she was recruited, or, at any time before November 2023, she had a guarantee of pay for 84 hours. 

The respondent’s position is that there was a change in the way that employees were paid, based on the HSE’s decision not to contract for the provision of 12-hour blocks of care.  The effect was that a change was introduced that meant that wages were paid for work done.  One interpretation of the situation could be that the complainant is now actually in a better position, as she has a written guarantee of 60 hours’ work.  From the payslips she submitted, I note that she generally works more than 60 hours and that the rate of pay for half hour care slots has gone some way to addressing the reduction in earnings arising from the change in December 2023.

For a period of more than a year, the complainant was paid for “down time,” the time when she wasn’t attending to clients or when she was travelling between clients.  It seems to me that there is a tension between the fact that, until December 2023, the complainant was paid for working 84 hours per fortnight, although there was no contract or any formal agreement to establish this as an entitlement.  However, returning to the question of whether 84 hours’ pay per fortnight was properly payable, I must find that, in the absence of a contractual entitlement, unless this number of hours are worked, wages for 84 hours per fortnight are not properly payable.

As I am not satisfied that the complainant has established that wages of 84 hours per fortnight were properly payable, I decide that this complaint under the Payment of Wages Act 1991 is not well founded.

Wages properly payable, contractual entitlement