ADJ-00004845 and ADJ-00004850

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004845 and ADJ-00004850

Parties

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

Date of Adjudication Hearing: 16/11/2016

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The Complainant gave the following evidence at the hearing:

Terms and Conditions of Employment Act

[CA-00006863-008 and CA-00006930-005]

1. I never received any written terms and conditions of my employment

    

Organisation of Working Time Act

[CA-00006863-002/005/007 and CA-00006930-002/003/004]

1. I did not receive any rest periods during the days that I worked

2. I was not paid for one Sunday in March 2016 where I worked all day (10 hours) this equates to €91

3. I was not given or paid any annual leave in 2016. This equates to €248.00

    

National Minimum Wage Act

[CA-00006863-001 and CA-00006930-001]

1. I started working for the Respondents in March 2014

2. My employment ended in April 2016

3. My job was as an au pair to their five year old daughter (referred to as X)

4. I was paid initially €140 per week and I was given bed and board in South Dublin. This was increased in September 2015 to €150 per week. In the summer months, for 8 weeks I worked more hours and was paid €170)

5. My work hours were as follows:

6. On Wednesday and Friday, I worked from 1pm until 5.30 or 6pm (4.5 to 5 hours x2)

7. On Thursday I worked from 1pm until 8pm (7 hours)

8. I worked Saturday from 8am until 6pm (10 hours)

9. This was a total of 27 hours per week for minding X. For this I should have received € 8.65 in 2015 and €9.25 per hour in 2016.

10. I also did house work which was an extra 2/3 hours per week. I was told that I would be paid €10 per hour for this extra cleaning work and while initially I was paid for this extra work, in June 2015, payment for this extra work stopped. So from June 2015 until my employment ended in April 2016, I worked 2/3 hours cleaning, for which I was not paid.

11. In total I believe that I worked on average 30 hours per week.

12. The national minimum wage in 2014 and 2015 was €8.65 per hour. In 2016 the rate increased to €9.15 per hour

     

Redundancy Payment Act

[CA-00006863-009 and CA-00006930-006]

1. I was informed by one of my employers that because she would no longer be working that my services would no longer be required

2. I was given three weeks to find alternative work

3. I found a place to live in an apartment in the city centre and I preferred to stay there

4. I accept that a job was offered to me by the Respondent to live out and still work as an au pair but I did not want to take it as I felt that I had been poorly treated by them.

Respondent’s Submission and Presentation:

The Respondents gave the following evidence

Terms and Conditions of Employment Act

[CA-00006863-008 and CA-00006930-005]

1. We accept that no written terms and conditions of employment were offered to the Complainant. We concede this aspect of the claim.

Organisation of Working Time Act

[CA-00006863-002/005/007 and CA-00006930-002/003/004]

1. In relation to rest periods, we do not accept that the Complainant did not take rests during the periods that she was minding our child.

2. In relation to holiday pay claimed for 2016 we do not dispute the claim for €248.00 however in March when one of the Respondents stopped working, the Complainant was still paid even though she did not have to work.

3. In relation to the claim that the Complainant worked one Sunday in March 2016, we say that the following week, we went on a family holiday and that the Complainant stayed in the house the following Thursday, Friday and Saturday and did not have to work. So this should reduce her claim for holidays in 2016 or it should set off the claim for a Sunday premium.

National Minimum Wage Act

[CA-00006863-001 and CA-00006930-001]

1. The Complainant worked Wednesdays, Thursday and Friday afternoons and all day Saturday.

2. Her hours were as follows

3. 1.30 until 5.30/6pm on Wednesday (during which X attended a swimming lesson for an hour)
4. 1.30 until 8pm on Thursday (during which X attended a coding class for an hour)
5. 1.30 until 5.30pm on Friday
6. 10.45 until 5pm on Saturday, but after two months of her employment the Complainant finished work earlier, reducing the Complainant's work hours on Saturday
7. In total the Complainant worked on average 22 hours per week.

8. The Complainant attended classes in the city centre every morning from 9.30am to 12.30 pm. This allowed her have the afternoons available, during which she minded X. This arrangement suited both parties.

9. During the summer months we paid the Complainant €200 per week as she was working more hours.

10. The Complainant received an extra €30 for cleaning duties on top of the €150 that she received for minding X. However we stopped paying her that in September 2015 because her work hours were reduced on Saturdays because X attended a drama course for 3 hours, from 2.30pm until 5.30pm. As the Complainant was paid anyway on Saturday, she was available to do the cleaning work then.

11. We paid the Complainant in ways other than money. We paid for her ticket home to Brazil (€790) in Christmas 2014, at this time we also paid her holiday pay of (€480). The Complainant had the use of our house, not just bed and board but use of internet, electricity, joining us for meals in restaurants and at home. She had the use of a car (for which she was put on our car insurance) Her friends were allowed to stay in our house, when we were there and when we were not. We included her as a family member in everything that we did.

Redundancy Payment Act

[CA-00006863-009 and CA-00006930-006]

1. She left the employment and a text that she sent on 13^th April 2016 t is evidence of that. The following text was sent by the Complainant to the Respondent: “My life is very flexible in town and I would like to enjoy this few months with my weekends free. So, If you are going back to work, you should look for someone else.”

Decision:

In this case two duplicate complaints have been instituted against two separate Respondents. However, insofar as liability has been found, both Respondents are jointly liable. Therefore one single decision issues in respect of all complaints.

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Under Irish and European law a domestic worker who works as an au pair, is an employee.

In this case, the Complainant was employed by the Respondent. There is no dispute raised by the Respondents to contest that fact.

The issue lies in terms of whether her rights as an employee were breached. I will deal with each complaint as it arose:

Terms and Conditions of Employment Act

[CA-00006863-008 and CA-00006930-005]

This claim was conceded and I find the complaint to be well founded. For this I award compensation in the sum of €300.

Organisation of Working Time Act

[CA-00006863-002/005/007 and CA-00006930-002/003/004]

The claim under holiday pay only relates to 2016. The amount claimed is €246. The Respondent does not dispute this claim and, as I find the claim to be well founded, I make this award.

I do not find the claim for rest breaks to be well founded, as I accept the evidence of the Respondents that the breaks that occurred naturally during the day when the Complainant was minding one child. These breaks were in compliance with the rest period entitlements set out in the Organisation of Working Time Act. X did many activities during the week and during this time the Complainant was not “on duty.” While she was present, as another employee might be present in the work place, she was on “down time” during these activities and this, in the circumstances constituted a break. When X was at home, and not attending an activity, I do not accept the evidence that she, during the afternoon did not take any break. Accordingly I do not find this aspect of the claim under the Organisation of Working Time Act to be well founded.

National Minimum Wage Act

[CA-00006863-001 and CA-00006930-001]

This is a complex calculation to make accurately. This is because the hours and days and payment for work hours changed over the two years that the Complainant worked with the Respondents. Also for the last four months of the employment, the rate of pay under the National Minimum Wage Act 2000 increased from €8.65 per hour to €9.15 per hour.

Also it is an unusual feature of some domestic worker cases that the worker receives gifts from their employer. This would not be a normal feature of other jobs. In this case, a €790 return flight to Brazil, ex gratia payments and mobile phone, providing accommodation to friends of the Complainant in the Respondent’s house (the value alone of which would set off the amount claimed under this heading) However, this is not something that I can take into account, as these were represented as gifts, albeit generous gifts, and as such should not be used to set off the wages claim made. If it were expressly agreed that payment entitlements were being waived in return for these things, then perhaps that could be looked at, but this was not the case here.

However I mention it because it is often a feature of au pair employment relationships that gifts are made and in this case were made and were, without doubt, of financial value to the Complainant.

Taking into account the conflicting evidence in terms of hours worked, I find that the Complainant did on average 24 hours work per week with the Respondent. This average takes into account the increased hours during the 8 week summer periods , the down time when the Complainant did not work due to the Respondents being on holidays with X, when X was at classes and when one of the Respondents was at home themselves looking after X and other variations that occurred during the employment.

I do not take into account the 3 extra work hours claimed for cleaning because the Complainant accepts that she was paid extra for this until June 2015 (Respondents say September 2015). However at the same time that this payment was cut, from mid 2015 onwards, I accept that there were three hours on Saturdays that the Complainant did not have to work because X attended a 3 hour drama class.

Under section 5.7 of S.I. 239 of 2007 the maximum deduction for board and lodgings which an employer may make from wages is set at €54.13. I find this figure to be very low, given the current rental market rates, however I am bound by this and I make the deduction accordingly.

I find this claim to be well founded and taking all the circumstances of the case into account, I make an award of €1900 under this heading.

Redundancy Payment Act

[CA-00006863-009 and CA-00006930-006]

I find this claim to be not well founded. The Complainant left the employment at a time when a position of “live out au pair” was being offered by the Respondents, the job position still existed. Consequently this aspect, of the claim, fails.

Total Award

The total award is therefore is €2446.00

The case underlines the importance of formalising these employment relationships, by way of written agreement, to ensure that the rights of both parties are protected and that the terms and conditions of the employment contract are transparent and agreed. However it is worth stating that the provisions of the National Minimum Wage Act 2000 and provisions of the other protective legislation, cannot be contracted out of.

Dated:   26 May 2017