ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001976
Complaints for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000
Date of Adjudication Hearing: 25/07/2016
At; Workplace Relations Commission, Dublin 4.
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
In accordance with Section 41(4) of the Workplace Relations Act, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The Complainant was employed as an Au Pair from 10th February 2015 until the employment terminated on 19th June 2015. The Complainant was paid €130.00 per week and she worked 40/45 hours a week. The Complainant referred complaints to the Workplace Relations Commission on 13th November 2015 alleging the Respondents had breached Section 3 of the Terms of Employment (Information) Act, 1994 in that she had not been provided with a written statement of her terms and conditions of employment and a complaint under the National Minimum Wage Act, 2000 that she had not been paid the National Minimum Wage of €8.65.
Summary of Complainant’s Position.
Terms of Employment (Information) Act, 1994 – CA-00000830-001. The Complainant stated she worked from 7.30am to 4.30pm Monday to Friday as an Au Pair taking care of two children in the family home. She was provided with accommodation with the family. The Complainant stated that she had not been provided with a written statement of her terms and conditions of employment during the course of the employment.
National Minimum Wage Act, 2000. CA-00000830-002. The Complainant stated that she was paid €130.00 a week during the course of the employment. She served a Section 23 Notice on the Respondents by letter dated 2nd September 2015.
Summary of Respondent’s Position
Terms of Employment (Information) Act, 1994 – CA-00000830-001. The Respondents stated that no formal employment role ever existed. No such role was ever discussed verbally, in writing or inferred. On the contrary the Respondents advertised for an Au Pair on the Au Pair Ireland website and the Complainant advertised likewise seeking a host family. The Respondents stated they were aware that the Complainant had taken a similar complaint against her previous Host Family. Therefore as there was no employment relationship with the Complainant she was not issued with a written statement of her terms and conditions of employment.
National Minimum Wage Act, 2000. CA-00000830-002. The Respondents stated the Complainant was paid €130.00 a week plus accommodation. She worked 5 days a week in the family home. The Complainant was off for 16 days plus 3 Public Holidays and Good Friday. She was paid for all these days. This was confirmed by the Complainant at the Hearing. The Respondents received a letter from the Migrants Rights Centre Ireland on 26th June 2015 in which they sought payment of €1898.40 on behalf of the Complainant. They also sought an additional payment in respect of 4 hours worked on 20th February 2015 and 24 hours on 28th May 2015. The Respondent sent a cheque to the value of €2000.00 to the MRCI to pass to the Complainant but this was returned by the Complainant
The Respondent stated that the Complainant did “babysitting” on two occasions for the Complainant for which she was paid €60.00 plus €5.00 an hour.
Terms of Employment (Information) Act, 1994. CA-00000830-001. The Complainant worked as an Au Pair for the Respondents taking care of two children in the family home, working 35 hours a week over 5 days. The Complainant had accommodation in the home and did not work on a Saturday or Sunday.
Section 1 (1) of the Act defines what a contract of employment means as “a contract of service……whether the contract is express or implied”. I find that the Complainant was an employee as defined by Section 1 (1) of the Act where it states that an employee “means a person who has entered into or works under a contract of Employment”.
Section 3 of the Act provides that an Employer shall provide the employee with a written statement of terms and conditions of employment within two months of the commencement of the employment. The evidence from both Parties was that the Complainant was not provided with this Statement, albeit the Respondents stated that no employment relationship existed. I find that the Respondents breached Section 3 of the Act.
National Minimum Wage Act, 2000. CA-00000830-002. Section 2 (1) of the Act defines an employee as a person who has entered into or works under a contract of employment which is defined as being “where a person agrees with another person to do or perform personally any work or service for that person….and whether that contract is express or implied”.
I find that the Complainant is an employee for the purposes of the National Minimum Wage Act, 2000 and she is entitled to be paid the National Minimum Wage of €8.65 an hour for the weeks she worked for the Respondents minus €54.13 for accommodation provided to the Complainant by the Respondents.
Both Parties confirmed that the Complainant did not work from 3rd April 2015 to 9th April 2015, inclusive and she did not work again from 27th April 2015 to 6th May, inclusive as the family were on holiday. She was also paid €130.00 for each of these two periods although she did not work.
The Complainant stated that she had also worked on two occasions, once on 20th February 2015 for 4 hours and again on 28th May 2015 when she worked 24 hours The Respondent stated that she was paid €60.00 plus €5.00 an hour on each occasion.
The evidence was that the Complainant worked 13 weeks in total x 35 hours a week = 455 hours x €8.65 an hour = €3935.75 less €54.13 a week for accommodation = €3232.06. The Complainant was paid €1690.00 over the 13 weeks. Therefore the Complainant is due to be paid the balance of €1542.06
The Complainant worked 40 hours for one week in February 2015 (having worked an additional 4 hours on 20th February 2015). She was paid €130.00 plus €20.00 = €150.00. For that week she is due the balance of €11.87
The Complainant was on duty on 28th May for 24 hours while the Respondents were absent. The issue of what constitutes “working Time” has been decided by the Court of Justice of the European Union where it has held that where an employee is on call and available to work for the employer then this has to be considered working time for the purposes of the Organisation of Working Time Act, 1997. I find that the Complainant worked a total of 59 hours for one week. The Complainant was paid €130.00 plus €5.00 an hour plus €60.00 = €310.00. I find the Complainant if entitled to be paid the balance of €146.22 for that week.
Terms of Employment (Information) Act, 1994. – CA-00000830-001. On the basis of my findings above and in accordance with Section 41(5) of the Act I declare the complaint is well founded. I order the Respondent to pay the Complainant compensation of €200.00 within 42 days of the date of this Decision.
National Minimum Wage Act, 2000. – CA-00000830-002 On the basis of my findings above and in accordance with Section 41 (5) of the Act I declare the Complaint is well founded. I direct the Respondents to pay the Complaint the sum of €1700.15 within 42 days of the date of this Decision.
Date: 4th November 2016