ADJUDICATION OFFICER DECISION/RECOMMENDATION

This decision must be read in conjunction with the decision contained in ADJ – 00004899. The Respondents named are respectively a Husband and Wife and are jointly and severally liable in respect of the Decisions made. It is not intended that the Complainant will recover twice.

Adjudication Reference: ADJ-00004900

Parties:

Complaint(s):

Date of Adjudication Hearing: 29/03/2017 and 07/12/2017

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a series of complaints regarding contravention by an employer of Acts contained in Schedule 5 of the Workplace Relations Act of 2015, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaints. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a number of matters by way of her Workplace Relations Complaint Form dated the 7^th of September 2016. In particular the Complainant has made a claim under the Minimum Wage Act 2000 regarding the hourly rate at which she was paid. The Complainant has also brought complaints under the Payment of Wages Act regarding unlawful deductions and the Organisation of Working Time Act in respect of holiday pay, annual pay, breaks given and excessive hours. There is also a claim under the Terms of Employment Act relating to the non- provision of Statement of Terms. These matters have been referred to the WRC within the time limits prescribed by Statute.

Background:

The complainant is a Brazilian National who came to Ireland as a student holding a stamp 2 immigration Visa which allows the student to avail of work on a part time casual basis and without a work permit.

Summary of Complainant’s Case:

The Claimant’s passport showed that the Complainant did indeed have the appropriate Visa stamp and which stipulated that the Complainant as a student was permitted to work for up to 20 hours per week in the school term and up to 40 hours per week during school holidays.

The Claimant understood that the Visa further regulated the permission to work and insofar as she understood it, she believed that she was entitled to work up to 20 hours for half the year (25 weeks) while studying and up to 40 hours for the balance of the year when she was not studying (27 weeks).

The Claimant applied for the Visa in Brazil and says that she presented herself at the GNIB on Burgh Quay for the purpose of having her passport stamped and this was done on the presentation of the appropriate documentation.

The Claimant arrived in Ireland in August of 2015 and started in the English language school in which she was enrolled and the evidence is that the Complainant did not work at all for the first 25 weeks or so of her stay here and had an attendance rate of 99% at her course which meant that she completed her course within the first six months. This left the Complainant free to work for the second six months of her Visa.

The Complainant responded to an advertisement from the Respondents looking for a child minder in respect of their children. The Parties struck a deal and the complainant went to live with and work for the Respondent in and around February 2016.

This relationship lasted until mid-way through August of 2016 at which time the Complainant left as she was disillusioned with the work and the way in which she perceives she was being treated in the workplace.

An interpreter was provided by the WRC and the Complainant gave evidence and was indeed cross examined by the Solicitor acting for the Respondent’s

Summary of Respondent’s Case:

The Respondent Employers were present but on the advice of their Solicitor declined to give evidence.

In the workplace, the Respondent had provided the Complainant with a 5 day work schedule which started at 7.30am and went right through to 5.00pm. The Complainant says she did an additional 4 hours once a week evening babysitting. In essence the Complainant says she worked some weeks for up to 54 hours in the week.

The evidence is that the Complainant was being paid at a rate of €150.00 per week but it must also be remembered that the Complainant was provided with board and lodging as part of the arrangement and the benefit to the Complainant must be borne in mind against a universally acknowledged backdrop of impossibly high rents for students.

Findings and Conclusions:

In the first instance the Solicitor invited me to throw out the Complainant’s case in circumstances where he said an exact copy of the notice submitted (ie the Workplace Relations Complaint Form dated the 7^th of September 2016 ) had not been caused to be given by the Director General to the Respondent pursuant to the DG’s obligation under section 41.9.c.

I accept that the copy of the Complaint is a condensed version of the cumbersome Workplace relations complaint form filled out by the Complainant. This is merely an administrative device operated by the WRC and does not alter and or otherwise edit the Complaint form such that the Respondent is in anyway prejudiced.

In the second instance, the Solicitor for the Complainant asked me to declare the Employment Contract (if one existed) was void by reason of the fact that the Complainant indicated that she was available for work for 40 hours of each week from February of 2016 when, in fact, the terms of the Visa under which the Complainant was allowed to be in Ireland seems to limit such availability to work those 40 hour weeks only during holiday periods as indicated (May through September). Reliance was placed on an apparently extracted document possibly prepared by INIS. In any event it is not clear if this rule had been stipulated and/or made known to the Complainant before she submitted her application which she says she did in her home country and which must, by deduction, have happened on a date well prior to August of 2016.

I was invited to compare this arrangement as being similar to the arrangement that pertained in the well-known Amjad Hussein -v- Mohammad Hussein H ct 31 08 2012 wherein Mr. Justice Hogan rendered the Employment Contract that operated in the absence of a valid work permit where one was absolutely required (with criminal sanctions applicable) was void ab initio. It is noted this Judgement was overturned though on grounds that did not appear to touch this aspect of the Judge’s finding’s and therefore must be seen as having some Obiter value.

Having considered this application, I am not satisfied to declare the Contract of employment between the parties as being Void. The Complainant was entitled to work and the Respondent was entitled to employ. The terms and conditions of how the work was done may have been at variance with what was purportedly stipulated in the terms of the Visa held. The differences in interpretation did not render this working relationship Void ab initio. There is no evidence that the Complainant or indeed the Respondent having had any knowledge that commencing to work a 40 hour week in the month of February as against the month of May, may have led in some way to the student permission being revoked.

With respect to the claim under National Minimum Wage Act 2000, the Solicitor acting for the Respondent again asked me to dismiss this claim where there was no evidence that the Director General had satisfied herself that the employee’s request of an employer under section 23 of the Act has been made.

Again, I was not minded to dismiss the Complainant’s claim as she had complied with the Section 23 request (evidenced and acknowledged) and any administrative failure of the Director General (which was not established) could not operate to disentitle the Complainant from pursuing her claim.

In the matter of the Terms of Employment (Information) Act 1994 I find that the Complainant was not provided with a written Statement containing particulars of the terms of her employment.

In the matter of the Payment of Wages Act, 1991 there is a written and signed document which as evidence suggests that the employer held back €510.00 from the employee when she handed in her Notice. The justification for this is unclear but as the Respondent declined to give evidence on their own behalf I find in favour of the Complainant.

In the matter of the Organisation of Working Time Act 1997, a number of complaints have been raised. The Complainant was not provided with any obvious means for taking breaks during the day. Of course the complainant had facility to make a cup of tea but even when a child is asleep a minder has to be vigilant.

On the face of the schedule provided it does appear that the Complainant was being asked to work longer hours than is allowed under the OWT Act. I do not have specifics of the hours overworked for every week. Again no evidence was given to me by the Respondents in this regard.

I believe the issues of holiday and/or annual pay is adequately covered in the claim for unlawful deductions under the Payment of Wages Act wherein perceived over payments appeared to be getting taken back by the Employer.

In the matter of the National Minimum Wages Act of 2000 there does appear to have been an under payment when the Complainant who was working a 40 hour week was getting paid at a rate of €150.00. I do not however accept that the value of €54.00 per week for board and lodgings is realistic in all the circumstances. I would place a value on bed and three meals at €20.00 per day or €140.00 per week. This left a shortfall of €76.00 per week.

Decision:

In the matter of the Terms of Employment (Information) Act 1994 I award the sum of €200.00.

In the matter of the Payment of Wages Act, 1991 I award €510.00.

In the matter of the Organisation of Working Time Act 1997 I award €100.00 for the failure to provide the Complainant with breaks.

In the matter of the Organisation of Working Time Act 1997 I award €300.00 for the failure to ensure that the Complainant was not working hours over and above the standard hours sanctioned under Statute.

In the matter of the Organisation of Working Time Act 1997 I award €100.00 for the failure to provide the Complainant with holiday pay.

In the matter of the National Minimum Wages Act of 2000, I award the sum of €1,444.00.

Dated:   7 November 2017

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