MWD127

Position of the parties

The Claimant
The Claimant told the Court in sworn evidence that in or about June 2010 she registered on a website in South Africa seeking employment as an au pair. She received an e-mail from a person acting for the Respondent offering her employment in Ireland. She was subsequently contacted by the Respondent and arrangements were agreed for her to travel to Ireland and take up employment in the Respondent’s household. According to the Claimant she was told that the Respondent had one child for whom she would be expected to care. The Respondent also undertook to arrange documentation for the Claimant. She was told that she would be provided with free accommodation and that she could undertake studies while in Ireland. The Claimant told the Court that her salary was fixed at €400 per month.

On or about 9^thJuly 2010 the Claimant arrived in Ireland. She was collected at the airport by the Respondent and brought to her home. The Claimant said that she replaced another woman who had been employed by the Respondent. She commenced working on that day. The Claimant told the Court that on arrival at the Respondent’s home she learned that she would be expected to care for two children and to undertake domestic duties. It was the Claimant’s evidence that initially she was not provided with written terms and conditions of employment.

Later she requested a written statement of her employment conditions and she was provided with a document headed ‘Contract’ which recited that (1) she would work 40 hours per week, (2) that she would be paid €400 per month, (3) that she would be provided with meals and accommodation by the Respondent and (4) that she would be required to care for two children and undertake light house work. This document, which was put in evidence, was not signed by either the Claimant or the Respondent.

According to the Claimant she initially started working when the children awoke, usually at around 7.30 am. She normally worked throughout the day and finished at between 10 and 11 pm. She claimed to have worked on this pattern six days per week and had Sunday off. Subsequently her work pattern changed and she would normally work from 7.30 am to 7.30 pm on three days per week; from 7.30 am to 9 pm on two days per week and on Saturdays she would commence working at 7 am and finish at 3 pm. She continued to have Sundays off.

The Claimant outlined the type of duties that she was required to perform during the day. They involved a range of childcare and domestic household duties including cleaning and laundry duties. The Claimant told the Court that she was not provided with breaks during the day and that the only opportunity that she had to rest was when the children were asleep. Typically she had a 10 minute break for meals and a 20 minute break during which she showered. Her normal working week extended to 68 hours. She was paid €400 per month in cash.

The Claimant put in evidence a hand written note which she received from the Respondent instructing her to undertake a variety of duties involving household cleaning and washing clothes.

The Claimant told the Court that her employment terminated on or about 28^thNovember 2010. She said that on that day she was stopped by immigration officials at Dublin airport having returned from visiting a friend in Cork. At that time her permission to remain in Ireland had expired. An immigration official accompanied her to the Respondent’s home and assisted her in removing her belongings from the house.

The Claimant told the Court that she had intended to undertake a course in childcare and had registered with a course. She only attended this course for one day and was unable to continue in the course because of her work commitments with the Respondent.

The Respondent
The Respondent gave sworn evidence in which she said that the Claimant was never employed by her. She claimed that the Claimant was at all time a guest in her home and that she merely helped out in housekeeping like all other members of the household. The Respondent denied ever having made payments to the Claimant by way of remuneration. The Respondent told the Court that she had never employed an au pair.

According to the Respondent she invited the Claimant to come to Ireland and stay in her home. This invitation, she said, was arranged through a mutual acquaintance. The purpose of the Claimant's stay in Ireland was for her to undertake a course of study. The Respondent told the Court that the Claimant was studying while in Ireland and that she attended a course run by the HSE in childcare on three days per week. She said that it was always understood that the Claimant would return to South Africa on the expiry of her visa. She said that the Claimant was provided with accommodation and meals. A copy of what was claimed to be a letter of invitation was produced by the Respondent.

The Respondent denied that the Claimant had undertaken the duties referred to in the course of her evidence to the Court. It was the Respondent’s evidence that the Claimant worked part-time as a Representative of a cosmetics supplier. The Respondent said that her eldest child was attending school during the day and that the younger child attends a cr�che. She claimed that the Claimant was unable to operate their washing machine. She also contended that the family eat Nigerian meals which the Claimant was unable to prepare.

In relation to the document headed ‘Contract’, which was put in evidence, the Respondent denied having issued this document to the Claimant. She said that she had seen it for the first time in connection with the hearing before the Rights Commissioner. The Respondent accepted that she had issued the Claimant with the handwritten note which was put in evidence. The Respondent said that this was merely a request to the Claimant to undertake some household duties on a once-off basis as she was expected to help out in undertaking house work like all other members of the household.

The Respondent was referred to a copy of a notice which she had placed on an international website offering employment for an au pair position at her home in Dublin. The Respondent accepted that she had registered with this website in or about March 2009 and that she had placed the advertisement. The Court was furnished with a copy of this advertisement. It referred to position for a ‘live-in’ au pair’ for a period of between 6 to 24 months for between 25 to 30 hours per week at a salary of between $101 to $200 per week. The Respondent accepted that she had placed this advertisement in these terms. She told the Court that she had never followed up on this and had not employed anyone either as an au pair or otherwise.

Issues for consideration
The net question for consideration in this case is whether the Claimant was an employee of the Respondent while living in the Respondent’s home. There is an irreconcilable conflict between the parties on every material aspect of this question. Accordingly the Court has to determine whether it prefers the testimony of the Claimant or that of the Respondent on this question. For the reasons that follow the Court has come to the conclusion that the testimony of the Claimant is more reliable and it is preferred over that of the Respondent.

Conclusion

The Claimant impressed the Court as a reliable witness who gave her evidence honestly and to the best of her ability. There was also a consistency in her testimony with other aspects of the evidence adduced. In particular the Court finds the handwritten note given to the Claimant by the Respondent to be consistent with the Claimant’s versions of the relationship between them and inconsistent with the Respondent claim that the Claimant was a guest in her home. The Court is also satisfied that at the material time the Respondent was seeking to recruit an aupair to work in her home, as is evident from the content of the advertisement which the Respondent placed on the international website. Furthermore, the Court does not accept that the Claimant had part-time employment with the cosmetics supplier referred to by the Respondent and the documents relied upon by the Respondent in support of this contention merely confirm that she had made some private purchases from that supplier. The Court also accepts, as a matter of probability, that the document headed ‘Contract’, which was put in evidence, was given to the Claimant by the Respondent. This document clearly evinces the existence of an Employer / Employee relationship.

The Court has also considered the content of the document which the Respondent claims was a letter of invitation to the Claimant to come to Ireland as her guest. There was no evidence of this latter ever having been conveyed to the Claimant and the Claimant denies ever having seen the document before the hearing. On this point the Court finds the Claimant’s testimony more reliable.

Taking the evidence as a whole the Court is satisfied on the balance of probabilities that a relationship of Employer and Employee came into being between the Claimant and the Respondent on or about 9^thJuly 2010 and continued until either the 27^thor 28^thNovember 2010.

Determination

The Court is satisfied that the Claimant was not paid the National Minimum Wage to which she was entitled during the currency of her employment with the Respondent. Accordingly her claim is well founded. The Representative of the Claimant expressly told the Court that the Claimant had no issue with the monetary award made by the Rights Commissioner. Accordingly the Court affirms the Decision of the Rights Commissioner to award the Claimant the sum of €4,800 under the Act by way of arrears of wages due to her by reference to the provisions of the Act.

The Respondent’s appeal is disallowed.