Question At Issue:
Whether appellant satisfied the requirement as to the number of hours worked per fortnight in order to qualify for Family Income Supplement (FIS).
The appellant was employed as a cleaner and qualified for a Back-to-Work Allowance. She had also been in receipt of FIS but when she re-applied at the end of the payment period, her FIS claim was disallowed on grounds that she did not work the required minimum hours (38 per fortnight). In reaching that decision, the Deciding Officer relied on information supplied by the Social Welfare Inspector.
The appellant was accompanied by her husband. The Social Welfare Inspector attended at the request of the Appeals Officer.
The Social Welfare Inspector outlined the details of his investigation, reporting that he had contacted the appellant’s employer at home. He stated that the employer did not have details of the hours worked by employees but kept a record of the number of bedrooms cleaned in the hotel in which they worked. The employer had advised him that the average number of rooms cleaned per hour was 2.5. He reported that he examined the wage records and, applying the figure of 2.5, reckoned the number of hours worked by the appellant.
The appellant contended that attendance records would have shown that she worked from 9 a.m. to 2 p.m. She asked whether the Social Welfare Inspector had ever gone to the hotel where she worked. He replied that he had not, stating that it was the practice to visit the employer at the place where the wage records were kept. The Appeals Officer asked him whether the employer had any details as to hours worked by employees, particularly in the context of the requirements of the National Minimum Wage Act, 2000. The Social Welfare Inspector confirmed that he did not.
The appellant argued that the figure of 2.5 suggested by the employer was inaccurate. She contended that it had always taken her an hour to do two rooms. She submitted details of work undertaken on particular days, copied from her worksheet, as an example. She asserted that the practice in relation to wages/hours worked changed following the increase in the National Minimum Wage to €6.35 per hour and that employees had been advised by their employer that he could not afford to pay the increase because of rising insurance costs. She contended that employees were told that they would be paid per room rather than per hour, at a rate of €2.95. The appellant argued that she had met the 38 hours per fortnight requirement for purposes of her previous FIS claim. She insisted that she worked the same hours since October 2002 but was now placed at a disadvantage by the new pay arrangements introduced by her employer.
The Appeals Officer asked the appellant whether a new contract had been negotiated in October 2002. In reply, she stated that the only contract she had with her employer was the one signed for purposes of the Back To Work Allowance where she was to be given 20 hours work per week (in line with the conditions governing the scheme).
The Social Welfare Inspector advised that the appellant had recently left the employment in question and had secured work with another company and that she had reapplied for FIS in respect of the new job. He reported, however, that her current claim would not be processed until the appeal was determined.
Consideration of the Appeals Officer:
The Appeals Officer accepted that the appellant was familiar with the qualifying conditions for FIS and that her financial arrangements were predicated upon her continuing to qualify for payment under the scheme. She noted that the appellant had made it clear that she wanted to work to support her family and that she did not want to rely on unemployment payments. She considered that the case might be regarded as one for which the FIS scheme had originally been established: to restore the 'incentive to work' in the case of the low wage earner with a family who might be only marginally better off working than claiming social welfare benefits.
The Appeals Officer considered that the appellant’s evidence as to the change in practice initiated by her employer in light of the increase in the National Minimum Wage in October 2002 was credible. She was satisfied also as to the assertion that proof existed regarding hours worked, in the form of attendance records kept at the hotel for insurance and other purposes. She noted that these records had not been examined and that the only evidence available referred to productivity; this was challenged by the appellant on grounds that it failed to take account of differences in the size of rooms, additional tasks assigned periodically and, fundamentally, that it was an arrangement put in place by her employer in order not to have to pay the National Minimum Wage. In the circumstances, and taking account of the fact that there was no evidence as to hours actually worked, the Appeals Officer accepted that the appellant satisfied the FIS qualifying conditions as to hours worked. She recommended that the Department of Social and Family Affairs refer the employer in the case to the Department of Enterprise, Trade and Employment for investigation.
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Page Updated 02/09/2005