FULL RECOMMENDATION
SECTION 28(1), ORGANISATION OF WORKING TIME ACT, 1997 PARTIES : AN EMPLOYER (REPRESENTED BY JHR SOLUTIONS) - AND - A WORKER (REPRESENTED BY MIGRANT RIGHTS CENTRE IRELAND) DIVISION : Chairman: Mr Hayes Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision r-070982-wt-08/TB
BACKGROUND:
2. The case comes before the Labour Court pursuant to Section 28(1) of the Organisation of Working Time Act 1997 (the Act).
The Complainant, represented by Mr Pat O’Donoghue of the Migrant Rights Centre Ireland, is appealing against the Decision of the Rights Commissioner, r-070982-wt-08/TB, issued on 18/03/2010. The Complainant alleges that the Respondent, deprived her of her entitlements contrary to Sections 12, 13, 14 15, 19 and 21 of the Act. The Respondent denies the allegations. The Court heard the case on 5th August 2010.
WORKER'S ARGUMENTS:
3. 1. The Complainant was expected to work in excess of 48 hours per week, and was on-call 24/7.She was not paid a Sunday or Public Holiday premium nor was she paid for Annual Leave due on cessation of her employment.
EMPLOYER'S ARGUMENTS:
4. 1. The Employer paid for a three month holiday in Ireland in order that the Claimant was made fully aware of the terms conditions and nature of the work she was expected to perform. On acceptance of the terms the Employer organised at her own expence a two year Work permit to run up until the end of January 2010.
DETERMINATION:
Background:
Both parties met in Thailand in 2007 while the respondent and her family were on holiday there. They struck up a friendship over the course of the holiday. The Respondent has a child with special needs and the Complainant became quite close to the child. The prospect of the Complainant returning with the family to Ireland to care for the child was discussed. In February 2007 the Complainant came on holiday to Ireland and stayed with the Respondent’s family. In the course of the holiday the Complainant raised with the Respondent the prospect of long-term employment assisting with the care of the child. The Respondent agreed to apply to the Irish authorities for a work permit for the Complainant. A work permit was issued by the Minister for Enterprise Trade and Employment to the Complainant on 29/01/2008 to undertake such employment. The permit was valid for a period of two years. The Complainant arrived in Ireland to take up employment on 13th March 2008.
There is a dispute as to when the Complainant commenced work. The Court will return to this later.
The Complainant took up duties as a domestic carer for the child with special needs and in addition was required to perform some “light housework.” No hours of work, job description or rate of pay was specified at that time. The employment arrangement was quite casual and informal. This informality eventually led to the issues coming before the court.
After four months the Complainant became dissatisfied with her working arrangements and ended her employment with the Respondent. She subsequently submitted a series of complaints to the Labour Relations Commission pursuant to the terms of the Organisation of Working Time Act 1997 and the Payment of Wages Act. The Rights Commissioner issued his Decision on the complaints on 18th March 2010. The Complainant appealed the Decision to the Labour Court pursuant to Section 28(1) of the Act.
Position of the Parties:
The Complainant gave evidence to the Court that she arrived in Ireland on 13th March 2008 and commenced work on 15th March. She said she was told her job was to care for the special needs child and in addition to perform housework for the employer in the family home. No terms or conditions of employment were discussed between the parties. No written contract of employment was exchanged and no pay rates were agreed.
She said that a typical working day involved her rising at 7:30 A.M.. She organised the laundry for that day and waited for the special needs child to rise and come down for breakfast. She organised the breakfast and prepared the child for school. The child left the house for school between 9:00 and 9:30 A.M. The Complainant then commenced the daily chores of washing, ironing and cleaning the house until the child returned from school. She said that she was expected to perform any housework that needed to be done. She said she was occasionally directed by her employer on the precise duties to be performed but normally she used her initiative to determine what needed to be done to maintain the house in good order. She said she had performed these duties when she had come on holiday the previous year and simply continued from where she had left off.
This routine continued throughout the day. She had a break mid morning and a break for lunch around the middle of the day.
She continued with housework at her own pace until the child arrived home from school. Thereafter she was responsible for supervising the child until she went to bed sometime between ten and eleven each evening.
She said she was also responsible for assisting in the preparation of the evening meal for the family and occasionally for their guests also. On some days she prepared a Thai meal for the family. After dinner she cleaned and washed up after the family. She ate her meals with the family.
After dinner she was responsible for supervising the child and engaging her in activities until she went to be. She said that bedtime was variable and ranged from 8.30 to 11:30 P.M.
After the child went to bed she sometimes watched television with the family. In addition she was given some jigsaws to complete by the Respondent which she intended using in a new family home that was then under construction. The Complainant completed several of these at the request of the respondent. She was also given some crochet work to complete in the evening time. She completed some pieces and then ceased to perform this duty.
When the parents went out at night she was responsible for caring for child and occasionally slept in her room in order to assist her sleep until the parents returned.
On a number of evenings a week the child went to organised activities and she accompanied her to and from these.
Between March and mid May she said worked a seven-day week. On Saturday and Sunday she was responsible for supervising and engaging with the child.
When the parents went on holiday she said she was responsible for caring for the child all day and night other than for taking her to and from school which task a family friend performed. She said she did this when both parents went on holidays to Spain for a week and when the Respondent went to New York for a number of days.
She said the other members of the family did not give any assistance with the supervision of the child at these times.
On the issue of Public Holidays she said she worked on 17th March 2008 and on all subsequent public holidays until she left the employment on 19th July 2008. She said she was unaware of which days were public holidays and she continued to work as normal on each of those days. She denied that she had attended a party with the family on St Patrick’s day.
On the issue of premium pay for Sunday work she said she received no additional payment forworking on Sunday. She said that she worked Sundays each week from the commencement of her employment with the Respondent until the end of May 2008 when she started visiting some friends she had made. Between March and May she said that the child would spend the best part of the day with her on both Saturday and Sunday and that she was responsible for supervising and engaging with her on those days.
She said she was never told she could leave or not leave the house or that she was not required to work after certain hours each evening or on weekends. She said she was never told what hours she had to work each day or week but she felt she was always at her employer’s disposal.
She said she left the Respondent’s employment on 19th July primarily because she did not receive wages on a regular basis from the respondent and no longer wished to work for her. She said the main reason she came to work in Ireland was to earn money to support her family in Thailand. She said a regular income was important for her as it would enable her to regularly send money home. When she was not paid on a regular basis she was unable to do this and this upset her greatly.
She said that after she left the Respondent’s employment she had no further contact with her.
Under cross-examination from Ms Jo Howells Roder, JHR Solutions, she said that the Respondent had given her a mobile phone when she commenced employment that she had left it behind her when she terminated her employment. She acknowledged that she left no forwarding or contact address which made it difficult for the Respondent to contact her after she left her employment.
She agreed with Ms Howells Roder that from Mid May onwards she had left work early some Friday afternoons. However she disputed the frequency with which she did so. Furthermore she rejected suggestions put to her by Ms Howells Roder to the effect that she regularly stayed away from her place of employment from Friday to Sunday commencing Mid May until she terminated her employment. She agreed she was away from her place of employment on 16th May, 23rd May, 30th May, 6th June, 27th June and 10th July. She said she did not stay away from the house for entire weekend on any of those occasions.
Ms Howells Roder put it to the Complianant that she had taken holidays on May 10th and 11th. The Complianant had no recollection of these.
Ms Howells Roder put it to the Complainant that she had taken holidays on 14th 15th and 16th May. The Complainant said she did not take holidays on those dates.
The Complainant also denied she had taken holidays from 21st to 25th July saying she had terminated her employment on 19th July.
She denied that she had attended a St Patrick’s Day celebration with the family on 17th March. She said she had stayed at the house that day and was working.
She agreed she had attended the 21st birthday party for one of the members of the family. However she denied she had attended the 50th birthday party of a family friend.
She agreed with Ms Howells Roder that she had once gone to Sunday lunch with the family in the local yacht club, once attended the theatre with the family and had, on several occasions, gone to Chinese restaurants for meals with the family. However she said on all occasions she was responsible for looking after the special needs child on these occasions and had left the theatre early to bring the child home.
She said in response to questions from Ms Roder that she had been given six one thousand piece jigsaws to complete by her employer and she had done so. She also said she had been given a blanket to crochet but she abandoned this. She denied that she had undertaken these activities to fill her leisure time or because she liked doing jigsaws or needlework.
In response to a suggestion from Ms Roder that she had asked the Respondent to save her money for her, the Complainant said that she had requested that she be paid weekly, had opened a bank account in her own name and needed the money to send to her dependents in Thailand. She said that despite this she was not paid regularly and this upset her considerably. When asked why she had not raised this matter with the Respondent she said she was afraid to do so as she had raised it on one occasion and had not been responded to.
The Respondent’s husband, said in evidence that the family had befriended the Complainant on a family hoiday in Thailand in 2007. The prospect of her working for the family in Ireland was discussed. He was opposed to the idea. However the other members of the family and particularly his special needs child got on very well with her and he eventually agreed. The Complainant was invited on holiday to Ireland that they had financed. That worked out well and they agreed, at her request, to employer her on a long-term basis as a domestic carer for their special needs daughter. They then proceeded to apply for a work permit that was eventually granted by the Minister. He said that the Complainant felt like she had won the lotto when the work permit was granted. He said that the complainant was treated like a member of the family and was integrated fully into family life. He said he had reservations about this also but nevertheless agreed to it.
He said that he resented any suggestion that the Complainant was invited on family occasions to look after their daughter. He said she attended these events as a family friend and was not working whilst there.
He said that the Complainant left the house on 19th July and did not return for several days. However he said he spoke to her on 26th and 27th July when she went missing again. He said the family was concerned for her safety and contacted the gardai. The Gardai subsequently advised him that she was well and had left their employment.
The Respondent gave evidence to the effect that she met the Complainant whilst on holidays on Thailand. They developed a friendship and agreed that as she got on well with the Respondent’s daughter they would consider employing her to care for her in Ireland. They invited her to Ireland for a holiday to assess the prospects of a successful relationship should they decide to enter an employment relationship. They paid the cost of the airfares etc. The holiday proved to be a great success and they decided to employ the Complainant under a long- term arrangement. They sought and in January 2008 were granted, by the Minister for Enterprise Trade and Employment, a two year work permit to employ the Complainant. The Complainant arrived in Ireland on 13 March 2008 and began work on 18th March.
She said that the Complainant was required to care for her daughter with special needs and to do light housework several days per week. She said no work schedule was set out. There was not sufficient work to occupy a person full time and on two days per week another long term employee of the Respondent came into the house to do some heavy cleaning duties.
She said that she and the Complainant became friends and that she considered her a “pal”.
She said she was concerned that the Respondent knew no other Thai people in Ireland and she took considerable steps to introduce to other people from the Thai community in Ireland. From this she met a number of Thai people and began to build friendships.
She said she was also conscious that the Complainant was in a foreign country with a very different culture and tried to integrate her into family life as much as possible to make her feel welcome.
She said that the Complainant’s work was finished by 8 P.M. each evening and she was free to do as she wished. She said that she understood that the Complainant enjoyed doing jigsaws and that as she had no friends in Ireland and little money or familiarity with the country she purchased some to enable her occupy her time.
She said that the Complainant was not required to work on weekends and that as she had no friends and no where to go she invited the Complainant to accompany her on family trips to make her feel welcome and help her integrate. She said that these invitations were issued as an act of friendship and were not occasions of work.
She said that she never asked the Complainant to look after her daughter after she went to bed. If the child woke at night she would make her way into her parents bedroom as all her children had done when they were growing up.
She said that as the weeks went on the Complainant, with considerable assistance from her, began to build a network of friends and from mid May she started to visit them at the weekend and absent herself from the house. She said she was quite happy with this arrangement as it was clear that the Complainant was beginning to integrate and build some friendships outside the family.
She said she never refused the Complainant permission to leave the house or required her to stay and work on weekends.
She said she did not keep records in accordance with the provisions of Section 25 of the Act.
She said that the Complainant had taken eight days holidays while working for her. She had recorded these days in a diary she maintained.
She said that when she and her husband went on holiday the other members of the family took primary responsibility for their sister after school and work and at weekends. She said these holidays imposed no additional burden on the Complainant.
She said that when the Complainant went missing she was concerned for her safety. After she failed to make contact with her over a few days she contacted the police. She said she was subsequently advised that the Complainant was well and had left her employment.
Findings of the Court:
Section 25 (1) of the Act imposes an obligation on employers to maintain certain records in relation to employees
- 25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.
Section 25 (4) provides that where an employer fails to maintain such records the onus of proving that the said provisions of the Act have been complied with in relation to the employee shall lie with the employer.
- (4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.
The Court therefore finds the following in respect of each of the complaints made:
Section 12 : Rest Periods: -
The Court finds on the basis of the Complainants own evidence that she was afforded the opportunity to take breaks during the day at her own discretion and that she regularly did so.
Accordingly the Court rejects this appeal.
Section 13 Weekly Rest Periods:
Section 13 of the Act provides: -
- 13.—(1) In this section “daily rest period” means a rest period referred to insection 11.
(2) Subject to subsection (3), an employee shall, in each period of 7 days, be granted a rest period of at least 24 consecutive hours; subject to subsections (4) and (6), the time at which that rest period commences shall be such that that period is immediately preceded by a daily rest period.
(3) An employer may, in lieu of granting to an employee in any period of 7 days the first-mentioned rest period in subsection (2), grant to him or her, in the next following period of 7 days, 2 rest periods each of which shall be a period of at least 24 consecutive hours and, subject to subsections (4) and (6)—
(b)if the rest periods so granted are not consecutive, the time at which each of those periods commences shall be such that each of them is immediately preceded by a daily rest period.
- (4) If considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature would justify the making of such a decision, an employer may decide that the time at which a rest period granted by him or her under subsection (2) or (3) shall commence shall be such that the rest period is not immediately preceded by a daily rest period.
(5) Save as may be otherwise provided in the employee's contract of employment—
(b)one of the rest periods granted to an employee under subsection (3),
- shall be a Sunday or, if the rest period is of more than 24 hours duration, shall include a Sunday.
(6) The requirement in subsection (2) or paragraph (a) or (b) of subsection (3) as to the time at which a rest period under this section shall commence shall not apply in any case where, by reason of a provision of this Act or an instrument or agreement under, or referred to in, this Act, the employee concerned is not entitled to a daily rest period in the circumstances concerned.
Furthermore the ECJ hasheld in the case ofLandeshauptstadt Kiel v Dr. med. Norbert Jaeger [Case C-151/02)that Time spent on call on the employer’s premises constitutes working time for the purposes of Article 2 (1) of Directive 93/104/EC
In the case before the Court the Complainant was permanently on call as she lived on the employer’s premises was required to respond to requests for assistance from the Employer and from the child in her care as and when required and consequently could not avail of the rest periods mandated by Section 13 of the Act. The absence of specific working hours and a clear distinction between work and leisure time leads the Court to conclude that the Respondent has failed to discharge the onus of proving compliance with this section and accordingly the appeal is allowed.
Section 14: Sunday Premium
Section 14 regulates payment for work performed on Sundays
- 14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—
(b)by otherwise increasing the employee's rate of pay by such an amount as is reasonable having regard to all the circumstances, or
(c)by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or
(d)) by a combination of two or more of the means referred to in the preceding paragraphs
- (2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.
(3) For the purposes of proceedings underPart IVbefore a rights commissioner or the Labour Court in relation to a complaint that this section has not been complied with in relation to an employee to whom this subsection applies (“the first-mentioned employee”), the value or the minimum value of the compensation that a collective agreement for the time being specifies shall be provided to a comparable employee in respect of his or her being required to work on a Sunday shall be regarded as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances:
Provided that if each of 2 or more collective agreements for the time being specifies the value or the minimum value of the compensation to be provided to a comparable employee to whom the agreement relates in respect of his or her being required to work on a Sunday and the said values or minimum values are not the same whichever of the said values or minimum values is the less shall be regarded, for the purposes aforesaid, as the value of compensation to be provided under this section to the first-mentioned employee that is reasonable having regard to all the circumstances.
(4) Unless the fact of such a value being so specified has come to the notice of the rights commissioner or the Labour Court, as the case may be, it shall be for the person who alleges in proceedings referred to in subsection (3) that a value of compensation of the kind referred to in that subsection is specified by a collective agreement mentioned in that subsection to show that, in fact, such a value is so specified.
(5) In subsection (3) “comparable employee” means an employee who is employed to do, under similar circumstances, identical or similar work in the industry or sector of employment concerned to that which the first-mentioned employee in subsection (3) is employed to do.
(6) References in this section to a value or minimum value of compensation that is specified by a collective agreement shall be construed as including references to a value or minimum value of compensation that may be determined in accordance with a formula or procedures specified by the agreement (being a formula or procedures which, in the case of proceedings referred to in subsection (3) before a rights commissioner or the Labour Court, can be readily applied or followed by the rights commissioner or the Labour Court for the purpose of the proceedings).
Accordingly this appeal is upheld.
Section 15: Maximum Working Week
Section 15 of the Act regulates the maximum working week an employee may be required to work: -
- 15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—
(b)6 months—
(i)in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or
(ii)) where due to any matter referred to insection 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,
- or
- (2) Subsection (1) shall have effect subject to theFifth Schedule(which contains transitional provisions in respect of the period of 24 months beginning on the commencement of that Schedule).
(3) The days or months comprising a reference period shall, subject to subsection (4), be consecutive days or months.
(4) A reference period shall not include—
(b)any absences from work by the employee concerned authorised under theMaternity Protection Act, 1994, or theAdoptive Leave Act, 1995, or
(c)any sick leave taken by the employee concerned.
- (5) Where an employee is employed in an activity (including an activity referred to in subsection (1) (b) (i))—
(b)as respects which it would not be practicable for the employer concerned to comply with subsection (1) (if a reference period not exceeding 4 or 6 months, as the case may be, were to apply in relation to the employee) because of considerations of a technical nature or related to the conditions under which the work concerned is organised or otherwise of an objective nature
- then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court undersection 24may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).
Section 19 Annual Leave Entitlement:
Section 19 of the Act provides- 19.—(1) Subject to theFirst Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—
- then a collective agreement that for the time being has effect in relation to the employee and which stands approved of by the Labour Court undersection 24may specify, for the purposes of subsection (1) (c), a length of time in relation to the employee of more than 4 or 6 months, as the case may be (but not more than 12 months).
(b)) one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or
(c)8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):
- Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.
(2) A day which would be regarded as a day of annual leave shall, if the employee concerned is ill on that day and furnishes to his or her employer a certificate of a registered medical practitioner in respect of his or her illness, not be regarded, for the purposes of this Act, as a day of annual leave.
(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any employment regulation order, registered employment agreement, collective agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks.
(4) Notwithstanding subsection (2) or any other provision of this Act but without prejudice to the employee's entitlements under subsection (1), the reference in subsection (3) to an unbroken period of 2 weeks includes a reference to such a period that includes one or more public holidays or days on which the employee concerned is ill.
(5) An employee shall, for the purposes of subsection (1), be regarded as having worked on a day of annual leave the hours he or she would have worked on that day had it not been a day of annual leave.
(6) References in this section to a working week shall be construed as references to the number of days that the employee concerned usually works in a week.
- Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.
Section 21 Public Holidays
Section 21 regulates entitlement to Public Holidays. The Section provides: -
- 21.—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—
(b)a paid day off within a month of that day,
(c)an additional day of annual leave,
(d)an additional day's pay:
- Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.
(2) An employee may, not later than 21 days before the public holiday concerned, request his or her employer to make, as respects the employee, a determination under subsection (1) in relation to a particular public holiday and notify the employee of that determination at least 14 days before that holiday.
(3) If an employer fails to comply with a request under subsection (2), he or she shall be deemed to have determined that the entitlement of the employee concerned under subsection (1) shall be to a paid day off on the public holiday concerned or, in a case to which the proviso to subsection (1) applies, to an additional day's pay.
(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.
(5) Subsection (1) shall not apply, as respects a particular public holiday, to an employee who is, other than on the commencement of this section, absent from work immediately before that public holiday in any of the cases specified in theThird Schedule.
(6) For the avoidance of doubt, the reference in the proviso to subsection (1) to a day on which the employee is entitled to a paid day off includes a reference to any day on which he or she is not required to work, the pay to which he or she is entitled in respect of a week or other period being regarded, for this purpose, as receivable by him or her in respect of the day or days in that period on which he or she is not required to work as well as the day or days in that period on which he or she is required to work.
The Respondent has failed to discharge the burden of proving compliance with Section 21 of the Act. From the evidence before it the Court is satisfied that the Complainant commenced work on 15th March 2008 and terminated her employment on 19th July 2008. Accordingly she is entitled to payment in respect of the public holidays that fell due on St Patrick’s Day, Easter Monday and the first Mondays in May and June 2008. That is four days in total.
Compensation:
In determining an appropriate remedy in this case the Court is constrained by the decision of the ECJ in the case ofVon Colson and Kamann v. Land Nordrhein-Westfalen [1984] ECRwherein the Court determined that compensation for breach of Community rights must be adequate, effective and dissuasive. Accordingly, taking into account the full circumstances of this case the Court awards the Complainant the sum of €2,000 in full and final settlement of all claims under the Act.
The Decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Brendan Hayes
12th November, 2010______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.