EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF: CASE NOS.
Sultana Anwar – claimant UD871/2013
PW318/2013
TE114/2013
against
Mr and Mrs Tahir Nazir – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT 1991
TERMS OF EMPLOYMENT (INFORMATION) ACTS 1994 – 2012
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr Roderick Maguire BL
Members: Mr A. O’Mara
Mr J. Flannery
heard this claim at Dublin on 24th November 2016
Representation:
Appellant: Ms Virginija Petrauskaite of the Migrant Rights Centre Ireland,
55 Parnell Square West, Dublin 1
Respondent: In person
This case came before the Tribunal as appeals by an employee of the recommendation/decision of the Rights Commissioner reference number r-118860-ud-12/EOS under the Unfair Dismissals Acts 1977 to 2007, reference number r-118854-pw-12/EOS under the Payment of Wages Act 1991 and r-118858-te-12/EOS under the Terms of Employment (Information) Acts 1994 to 2012.
The determination of the Tribunal was as follows:
Appellant’s Case
The appellant worked as a domestic worker for the respondents from 18 March 2009 to 10 August 2011. The respondents Mr & Mrs N are both doctors. The appellant comes from Pakistan and is a second cousin of Mr N. She was told by Mr N’s mother that they needed a child minder. She expected to get a three and a half year Visa and to be paid €100 per week.
The appellant started working the day after she arrived. She was looking after 3 children, cooking, cleaning and doing the ironing. She started work at 7.00am and sometimes did not finish until 11 or 12 in the evening. The only time off she got was when she was eating. She worked 7 days a week and never got a day off. She had no permission to leave the house and also had no access to a phone. If she complained the respondents threatened that the police would come and get her. On two occasions she was sick and the respondents gave her medicine but no rest. She was paid €150 on the 17th of each month and she sent it to her family.
Respondent’s Case
Mr N gave evidence. The appellant is his second cousin. She asked him over the phone if she could visit. He said ok and signed the papers so she could get a Visa to visit. He had 3 children and already had a babysitter.
After a few months the appellant went out to local shops looking for work. He heard this from the man in the grocery shop. He explained to the appellant that she could not work on a visitor’s Visa.
Then her brothers phoned to say they were arranging a marriage for her. She left without telling him and when he phoned her brother he was told that she was with her in-laws. After 6 or 7 weeks the appellant came back. By that time Mr N was working reduced hours and he took the children to school and he and his wife cared for the children. The appellant never worked for them. They had a child minder and did their own cooking and washing. She was a visitor but she had her own mobile phone and had access to their phone.
Mr N was away on 5 weeks study leave and annual leave when the appellant left in August 2011. His wife never mentioned giving money to the appellant.
Determination
The Tribunal carefully considered the evidence adduced in this case. There is a major conflict in the evidence given by the parties to this case. The appellant said that she was a domestic worker subject to very long hour and poor pay and conditions. Meanwhile the respondent’s view is that she was a visitor in his house who was not required to work at all.
While accepting that there are difficulties with both versions of events, the Tribunal prefers the evidence of the appellant and finds that she had been the respondents’ domestic worker and that she was in effect constructively dismissed. The Tribunal accepts that the appellant worked a very large number of hours each week, and that these were the normal hours of the employment, and is mindful of Sections 7 and 17 of the Unfair Dismissals Act as amended. In particular, the Tribunal also has regard to SI 287 of 1977 in relation to the calculation of a week’s remuneration for the purposes of Section 7 of the Act. In making an award, the Tribunal takes into account that the National Minimum Wage in 2011, when the appellant’s employment ceased was €8.65 per hour. The appellant is awarded the sum of €64,771.20 under the Unfair Dismissals Acts 1977 to 2007 in relation to her financial loss attributable to the dismissal.
The appellant’s appeal under the Payment of Wages Act 1991 for 10 days’ pay succeeds and she is awarded the sum of €674.70.
The appellant’s appeal under the Terms of Employment (Information) Acts 1994 to 2012 also succeeds and she is awarded the sum of €1,349.40 being 4 weeks’ wages.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)