ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000391

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing:  03/05/2016 Workplace Relations Commission Adjudication Officer:  David Iredale

1. Background:

The Claimant was recruited by the Respondent as an Au Pair through Au Pair Ireland. She worked for the Respondent from 2 February 2015 to 8 May 2015. The Claimant, in addition to child minding duties, maintains she was required to do cleaning duties each day in the Respondent’s home. The Claimant was paid between €100 and €200 per week, plus meals and accommodation, during her employment.  

The Claimant presented complaints on 23 October 2015 alleging that the Respondent was in breach of the following Acts:

• S.3 of the Terms of Employment (Information) Act, 1994, (the “1994 Act”), in that the Respondent failed to provide her with a written statement of her terms within 2 months of the commencement of her employment.

• The National Minimum Wage Act, 2000 (the “2000 Act”), in that the Claimant was paid less than the national minimum wage per hour during her employment.

• S.5 of the Payment of Wages Act, 1991 (the “1991 Act”) in that the Claimant was not paid minimum notice.

• S.12, S.14, S.20 and S.21 of the Organisation of Working Time Act, 1997 (the “1997 Act”) in that the Claimant was not provided with her entitlement to rest breaks, a premium for hours worked on Sundays, paid the correct holiday pay when taking annual leave and for a public holiday on 4 May 2015. 

2. Claimant’s Case – Breach of S.3 of the 1994 Act

The Claimant worked for the Respondent as an Au Pair for 14 weeks from 2 February 2015 to 8 May 2015. In breach of S.3 of the 1994 Act, she was never provided with a written statement of her terms at any time during her employment.

3. Respondent’s Case – Breach of S.3 of the 1994 Act

The Respondent conceded that the Claimant had not been provided with a written statement of her terms of employment.

4.     Recommendation – Breach of S.3 of the 1994 Act

S.3 (1) of the 1994 Act states that:

“An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(a) the full names of the employer and the employee,  

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

 (c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order, ]

(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,]

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a  month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.“

As the Respondent failed to provide the Claimant with a written statement of her terms within 2 months of the commencement of her employment, I therefore declare her complaint that the Respondent was in breach of S.3 of the 1994 Act to be well founded. I require the respondent to pay to the Claimant S.3 of the 1994 Act to be well founded. I require the respondent to pay to the Claimant the sum of €692 in compensation for being in breach of the 1994 Act.

5     Claimant’s Case – Breach of S.5 of 1991 Act

The Claimant tendered her resignation on 4 May 2015 to take effect on 12 May 2015. On 7 May 2015 she received a text message from the Respondent informing her that her employment would terminate the following day. The Claimant was paid €100 for that week but received no further wages relating to her remaining notice period.

6.   Respondent’s Case – Breach of S.5 of 1991 Act

The Respondent decided to terminate the Claimant’s employment on Friday, 8 May 2015, as the situation had become uncomfortable due to the working relationship having deteriorated.

7.   Decision – Breach of S.5 of the 1991 Act

The Claimant had tendered her resignation on 4 May stating that her employment would terminate on 12th May. If, on receipt of her resignation and notice, the Respondent wished the Claimant’s notice to be restricted to 1 working week ending Friday 8 May rather than continuing to Tuesday 12 May, she should have informed the Claimant of her decision at that time. When the Claimant was informed on 7 May that her employment was to end the following day, she had an expectation of working until 12 May. In the circumstances I find that the Respondent gave insufficient counter notice of changing the date of termination. I therefore declare her complaint to be well founded. I require the respondent to pay to the Claimant the sum of €103.80 in compensation for the non-payment of 2 days outstanding notice. 

8.   Claimant’s Case – Breaches of S.12, S.14, S.20 and S.21 of 1997 Act

8.1.  On Mondays to Wednesdays the Claimant carried out cleaning duties from 10.00 to 11.30 prior to picking the child up at 12.00pm and carrying out child minding duties to 6.00pm. On Thursdays and Fridays she cleaned from 9.00am to 11.30am prior to her child minding duties. The Claimant was not provided with any set breaks during any period of work.

8.2   The Claimant worked Sundays on 15 February 2015, 29 March 2015 and 19 April 2015. In breach of S.14 of 1997 Act, the Claimant received no premium for the hours she worked on Sundays.

8.3    The Claimant took 1 week’s annual leave from 6 April 2015. However, she only received €50 holiday pay for that week. The Claimant is seeking compensation for the Respondent’s failure to pay her the correct holiday pay in advance of her taking annual leave. 

8.4   The Claimant worked the public holiday that fell on 4 May 2015. She received no additional pay nor was she given a day off in lieu.

9.   Respondent’s Case – Breaches of S.12, S.14, S.20 and S.21 of 1997 Act

9.1   The Claimant was never required to carry out house work prior to 12.00pm each day. She was free to take breaks during the period 12.00pm to 6.00pm when the child was occupied and not requiring close attention.

9.2   The Claimant was paid for any additional hours she worked and raised no complaints during her employment.

10.  Findings – Breaches of the 1997 Act

10.1    S.25 (1) of the 1997 Act states that: - “An employer shall keep......... 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.”

The Respondent kept no records of the Claimant’s working hours, rest breaks etc., to show compliance with the provisions of the 1997 Act.

S.25 (4) of the 1997 Act provides:  

“……. 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.”

As the Respondent has failed to keep the required records, I find, pursuant to S.25 (4), that the onus of proving compliance with the 1997 Act lies with the Respondent.

10.2   The requirement for employers to provide rest breaks for employees after periods of work was introduced for health and safety reasons. The obligation on employers is not only to ensure a system is in place where breaks are actually scheduled, the employer must make sure that those breaks are availed of by workers. The Labour Court, in the case of The Tribune Printing and Publishing Group v. Geographical Print and Media Union [2004] ELR 222, stated: -

“Merely stating that employees could take rest breaks if they wished and not putting in place proper procedures to ensure that the employee received those breaks thus protecting his health and safety, does not discharge that duty.

In this case I found no evidence of any arrangement being in place to ensure that the Claimant received her entitlement to rest breaks. A rest break is a period of time when an employee can relax and is not their employer’s disposal. Between the hours of 12.00 and 18.00 the Claimant was responsible for minding a child. While the Claimant may well have had periods of relatively free time when the child was occupied, these periods of time were not rest breaks as she was at all times responsible for the child and had to be available to deal with any situation that might arise.

10.3   The Claimant gave evidence that she worked a total of 414.5 hours over the 14 weeks of her employment. While the Respondent disputed the Claimant’s figures, she did not produce any records or evidence to support her contention that the Claimant had worked fewer hours than claimed. I therefore accept the Claimant’s evidence of having worked for the Respondent for a total of 414.5 hours.

10.4  S.21 (1) of the 1997 Act provides that:-

“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—    

(a) a paid day off on that day,   

(b) a paid day off within a month of that day,   

(c) an additional day of annual leave,   

(d) an additional day's pay:”

The Respondent did not refute the claim that the Claimant worked on the public holiday that fell on 4 May 2015 without being compensated as provided for under S.21 (1), subsections (a) to (d) above.

S.14 (1) of the 1997 Act provides employees with an entitlement to an allowance, an increase  in their rate of pay, paid time off or a combination of these benefits in compensation for hours worked on Sundays.  I find that the Claimant was never provided with her entitlement in respect of the public holiday that fell on 4 May 2015.

11.    Decision – Breaches of S.12, S.14, S.20 and S.21 of the 1997 Act

Having fully considered the submissions made by the parties I find that the Respondent had no arrangements in place to allow the Claimant take a rest break or to ensure that rest breaks had been taken. I therefore declare the complaint that the Respondent was in breach of S.12 to be well founded. I require the Respondent to pay to the Claimant the sum of €500 in compensation for being in breach of S.12 of the 1997 Act.

As the Claimant was never compensated for the hours she worked on Sundays, either by being paid a premium, through an increase in her rate of pay or by receiving paid time off, I therefore declare her complaint that the Respondent was in breach of S.14 to be well founded. Based on a premium of 25% of the hourly rate, taken as being the national minimum wage, I require the Respondent to pay to the Claimant the sum of €75 in compensation for being in breach of S.14 of the 1997 Act. This award includes the Claimant’s financial loss of €54.06 with the balance of the award being in compensation for the breach of S.14.

S, .20 (2) of the 1997 Act provides that:-

The pay in respect of an employee's annual leave shall—

(a) be paid to the employee in advance of his or her taking the leave,

(b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate, and (

c) in a case in which board or lodging or, as the case may be, both board and lodging constitute part of the employee's remuneration, include compensation, calculated at the prescribed rate, for any such board or lodging as will not be received by the employee whilst on annual leave.

As the Respondent failed to keep records of hours worked by the Claimant, I have accepted the Claimant’s record of her working hours. 

I declare the complaint that the Respondent was in breach of S.20 of the 1997 Act to be well founded. I require the Respondent to pay to the Claimant €100 in compensation for being in breach of S.20 of the 1997 Act. The Claimant has been compensated for any financial loss relating to her annual leave entitlement in the award made as redress for her complaint regarding the Respondent being in breach of the National Minimum Wage Act 2000, reference ADJ-00000391 / CA-00000415.

I declare the Claimant’s complaint that the Respondent was in breach of S.21 to be well founded. I require the Respondent to pay to the Claimant. I require the Respondent to pay to the Claimant the sum of €80 in compensation for being in breach of S.21. This award includes the Claimant’s financial loss of €64.88 with the balance of the award being in compensation for the breach of S.21 of the 1997 Act.

12.   Claimant’s Case – Breach of 2000 Act

By letter dated 1 September 2015 the Claimant requested a written statement from the Respondent of her hourly rate of pay for a specific reference period. No response was received from the Respondent to this request. The Claimant was paid between €100 and €200 in wages per week, plus meals and accommodation, for working an average of 44.5 hours per week. During the 14 weeks of employment the Claimant worked a total of 414.5 hours for which she was paid €2,335.82, inclusive of €54.13 per week in respect of being provided with meals and accommodation, which equates to a rate of €5.64 per hour.  The Claimant was therefore underpaid by €3.01 per hour over the course of her employment.

13.   Respondent’s Case – Breach of the 2000 Act.

The Respondent disputes the Claimant’s submission that she was required to do housework in the mornings.

The Claimant was paid for any additional hours that she worked, in addition to being provided with accommodation and her meals.

14.   Findings – Breach of 2000 Act

14.1   The parties are in dispute as to whether the Claimant was required to do housework prior to picking the Respondent’s child up from the Montessori at 12.00.  In the absence of any Organisation of Working Time records or other record of hours worked, I prefer the evidence of the Claimant which I found to be more consistent and credible.

14.2   I find that the time, including time when the child was asleep, when the Claimant looked after the Respondent’s child from 18.00 on 8 February to 13.00 on 15 February 2015, was working time. The only exception were the hours during the day when the child was cared for by grandparents.

15. Decision – Breach of the 2000 Act 

Having fully considered the submissions made by the parties I prefer the Claimant’s evidence that she worked 414.5 hours over the 14 weeks of her employment. As her wages, including €54.13 per week in respect of meals and accommodation, were €2,335. 82 in total during that period, she was paid an hourly rate of €5.64. As her hourly rate was less than the national minimum wage of €8.65 per hour, I declare her complaint that the Respondent was in breach of the 2000 Act to be well founded.  I require the Respondent to pay to the Claimant the sum of €1,500. This award includes the Claimant’s financial loss of €1,247.65 with the balance of the award being expenses.        

Dated: 21st December 2016