Complainant

Respondent

Anonymised Parties

A Childminder

Childminding facility

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00012145-001

27/06/2017

Complaint    seeking adjudication by the Workplace Relations Commission under section 7    of the Terms of Employment (Information) Act, 1994

CA-00012145-002

27/06/2017

Complaint    seeking adjudication by the Workplace Relations Commission under section 13    of the Industrial Relations Act, 1969

CA-00012145-003

27/06/2017

Complaint seeking adjudication by the Workplace relations   Commission under Section 11 of the Minimum Notice & Terms of Employment   Act, 1973

CA-00012145-005

27/06/2017

The Complainant is the lawful spouse of the Respondent.   The place of work is a family home. At all material times both the   Complainant and the Respondent resided at the family home. The Complainant was employed by the   Respondent from 1^st September 2010 as a child minder in pre-school   service.   He was paid €1700 net a month and worked 45 hours a week. He did not work for   the Respondent after around 23^rd December 2016. He was paid €1700 on   19^th January 2017.   On 19^th January 2017, the Complainant signed an agreement at the   Family Law Court whereby the Complainant agreed, inter alia:

1. To   vacate the family home on or before 5pm on 23^rd January 2017.
2. Not   to attend the family home thereafter.

The Complainant claims that:

•   he was unfairly dismissed and seeks   compensation;
•   he was not notified of a change to his terms   of employment;
•   he did not receive his minimum notice.

The Respondent is a sole trader. The name of the   Respondent on the WRC Complaint Form is the married name of the Respondent.   However, she has since reverted to her maiden name. It was agreed that the   form be amended accordingly.

The Complainant   has not included specific complaint in respect of the above Act in his   complaint form. However, he has addressed the matter in the statement   relating to the Unfair Dismissal claim where he specifically referred to the   Minimum Notice and Terms of Employment Act, 1973. Both Parties agreed that the   claim can be introduced.

In   considering the introduction of a new claim I am guided by the High Court   judgment in the case of County Louth Vocational Educational Committee v The Equality Tribunal   and Pearse Brannigan [2009] IEHC 370 . In that case McGovern   J. held that while it was permissible to amend a claim set out in form EE.1   this was only permissible where ‘the general nature of the complaint (in this case discrimination on   grounds of sexual orientation) remains the same.’ I note that   McGovern, J. also stated in this decision that this can only be done so long   as the general nature of the complaint remains the same. He went on to say   that   "what is in issue here is the furnishing of further and better   particulars" and "the respondent....must be given a reasonable opportunity to deal   with these complaints and the fair procedures adopted by the Equality Officer   must be fair and reasonable and in compliance with the principles of natural   and constitutional justice.".

In the   present case, this new claim which the Complainant sought to introduce at the   hearing had been referred to in advance of the hearing in the Complaint Form.   I am thus satisfied that the Respondent was on notice of the claim. In   addition, and for the avoidance of doubt, I am also satisfied that the Respondent   had addressed the claim in their written submission.

I am   satisfied given all of the circumstances of the present case, that the   introduction of a new claim does not fundamentally alter the nature of the   claim before the hearing. Therefore, I am satisfied that I do have   jurisdiction to permit the introduction of a new claim seeking entitlements   under the Minimum Notice and Terms of Employment Act, 1973.

The Respondent   submits that the Section 2(1)(c) of the Act does not apply to “a person who is employed by his spouse   (…) is a member of his employer’s household and whose place of employment is   a private dwelling house or a farm in or on which both the employee and the employer   reside.”

The family home   adjoins and incorporates a business run by the Respondent, which is a   Montessori, crèche and childminding service.   The Complainant is the lawful spouse of the Respondent and was employed   by his spouse within the family home which is private dwelling house in which   both the employee and the employer resided. The Complainant worked   exclusively in the childcare/pre-school part of the business, which is   entered via the front door and is located on the bottom floor of the family home   e.g. kitchen, living room. A baby safety gate restricts the access to the top   floor.

The Respondent   presented substantial evidence including photographs and correspondence from   the County Council confirming that permission for change of use to Montessori   was sought and granted only in relation to a part of the family home   (extension).

The Respondent   further submits that the opening hours for the preschool and childcare are   8am to 6pm. However, the door of the house remains locked at all times.   Unlike in Montessori, in preschool and childcare, which are located in the   private dwelling house she does not keep a visitor log.

Therefore, the Respondent   submits that the Complainant is an exempted category under the Act.

Moreover, the   Respondent denies that the Complainant was dismissed by the Respondent.   The Respondent submits that on the 19^th January 2017 the   Complainant, with the benefit of independent legal advice entered into Terms   of Consent at the Family Law Court whereby he agreed to vacate and stay away   from the family home, which was ultimately his place of employment.   Consequently, he resigned his position.

Furthermore, as   of 31^st December 2017, each person working directly with children   attending the pre-school service must hold at least a major award in Early   Childhood Care and Education at Level 5 on the national Qualifications   Framework or a qualification deemed by the Minister to be equivalent. The   Complainant’s Contract of Employment states clearly that ‘You will be required to successfully complete the following   training:

•   …….
•   FETAC Full Award Level 5 in Childcare prior   to September 2016…’

The Respondent   submits that the Complainant was reminded of this requirement on numerous   occasions but he has chosen not to complete the training. It was beyond the   Respondent’s control and it was clearly communicated to the Complainant that   he would not be permitted to work with children at the current time i.e.   until the training is completed. The Complainant subsequently requested his   P45.

The Counsel for the Complainant submits that the childcare   and preschool operate between 8am and 6pm. Therefore between 8am and 6pm the   family home becomes a public building, which is locked only for security of   the children. Unlike a farm where no   public can enter, the building is open to public during the official hours   and therefore it is not a private dwelling within the meaning of the Act.

The Complainant submits that he finished work before   Christmas 2016 and there was no indication that he would not be returning in   January 2017. His recollection was that at the Family Law Court hearing his   solicitor informed him that he was let go.   The Complainant submits that he was not aware of the requirement to complete   the FETAC training. He has started the course. The Counsel for the   Complainant argues that other responsibilities could have been assigned to   the Complainant such as finance affairs, shopping, customer service until   successful completion of the training.

The Complainant confirms that he agreed to vacate and stay   away from the family home.

Section 2(1)(c)   of the Unfair Dismissal Act, 1977 provides that the Act shall not apply to “…a person who is employed by his spouse,…   is a member of his employer's household and whose place of employment is a   private dwelling house or a farm in or on which both the employee and the employer   reside”.

I note that the   Act specifically refers to a farm and a private dwelling house.   I note that the preschool service is located in the private part of the house   i.e. kitchen, living room. An application for change of use was made and   granted by the County Council specifically in respect of the extension and   Montessori. I note also that the Complainant worked exclusively in the   child-minding/ pre-school part of the business.

I note the   Complainant’s assertion that the private dwelling house is no longer one once   it becomes a place of employment opened to clients.   However, I am satisfied that the Complainant was employed by his spouse, was a   member of his employer's household and his place of employment was a private   dwelling house in which both the Complainant and the Respondent resided.

I am satisfied that the Act envisages circumstance whereby a private dwelling house   becomes a place of employment.

I am therefore   satisfied that the Complainant is an exempted category under Section 2(1)(c)   of the Unfair Dismissal Act, 1977.

Having given careful consideration to the evidence adduced   and the submissions made by the Parties having regard to the findings and   conclusions arrived I find the   Act does not apply to the Complainant. I find that I have no   jurisdiction in the matter and accordingly I dismiss the claim.  

The Complainant submits that in or about the month of   December 2016 the Respondent purported to restrict the Complainant’s   employment on the basis of qualification requirement of which the Complainant   was not aware. The Complainant submits that in seven years of employment   prior to December 2016 the Complainant was always deemed fully qualified for   the role that was assigned to him by the Respondent.

The Respondent submit that the Child Care Act 1991 (Early   Years Services) Regulations of 2016 Part III Section 9 paragraph 4 stipulate   : “A registered provider shall ensure   that, without prejudice to the generality of paragraph (2) and subject to   paragraph (5) and (6), each employee working directly with children attending   the service holds at least a major award in Early Childhood Care and   Education at level 5 on the National Qualifications Framework or a qualification   deemed by the Minister to be equivalent.  Paragraph (4) shall apply-  (a) on or after 31 December 2016 in respect of pre-school services registered   on or before 30June 2016…”

The Respondent submits that the Complainant’s Contract of Employment states clearly that ‘You will be required to successfully   complete the following training:

•   …….
•   FETAC Full Award Level 5 in Childcare prior   to September 2016…’

Therefore,   there was no change to the Complainant’s Terms of Employment.  The Respondent repeatedly reminded the Complainant of the requirement.   However, the Complainant has not completed the mandatory training.

From the evidence adduced I find that the Complainant   received his Handbook and Contract of Employment which clearly outline the   requirement in respect of the necessary training. Moreover, the Complainant   signed that he has read, understood and fully accepts the Terms of this   Employment Contract.

I declare the complaint under S. 7 of the Terms of Employment   (Information) Act, 1994 not well-founded.

The Complainant submits that the Respondent   failed to give notice in accordance with the Act. The Complainant had seven years’   service and was entitled to a four weeks’ minimum notice period.

The Respondent submits that the   Complainant was not dismissed. The Complainant is deemed to have resigned his   position on the 19^th January 2017 by signing the agreement whereby   he voluntarily undertook to vacate and stay away from the family home, which   is also his place of employment. Therefore, there is no obligation on the   Respondent to address the minimum notice matter. The agreement reached at the   Family Law Court clearly provided for a payment of the sum of €1,700   ‘representing one month’s wages now due to the Complainant. The Complainant   was paid the sum of €1,700 net representing four weeks’ wages which was in   lieu of his notice. Copies of postal orders amounting to €1,700 were   presented at the hearing.

The Respondent further submits   that the claim is entirely brought with the sole and express provision of   incurring further legal expenses to the Respondent.

I   am satisfied that there was no explicit verbal or written termination of the   Complainant’s employment by the Respondent.

In   their correspondence, the Respondent stated that the Complainant has not   completed the required training and therefore cannot continue to work in the   business ‘at the current time’ i.e.   on or after 31^st December 2016.   The Complainant had one module of the training to complete. Prior to   December 2016 the Respondent repeatedly asked the Complainant to complete the   final module. It is understandable that the Respondent would not jeopardize   the business by breaching the regulations. The Respondent informed the   hearing that, in ordinary circumstances, the Complainant would have been   assigned other duties which would not require any contact with children until   the completion of the course. However, extremely difficult family matters   arose and led to the Family Law Court proceedings. Consequently, the   Complainant signed the agreement to vacate and stay away from the family   home.     I am therefore satisfied that the Complainant was not dismissed by the   Respondent.

In any event, I   note that the Complainant in his correspondence with the Respondent and   subsequently by signing the Terms of Consent voluntarily agreed to vacate and   stay away from the family home, which happens to be also his place of work.

I note the different opinions of the Parties on respect of   the aforementioned payment of €1,700.  I note that the Complainant’s last working day was 23^rdh   December 2016.

I am satisfied that the Complainant has resigned his   position by signing the agreement whereby he agrees ‘to vacate the family home on or before 5.00pm on Monday the 23^rd   of January 2017’ and ‘not to attend   at the family home thereafter’.   I find that the Complainant has no entitlement to the minimum notice.

I   find that, as the Complainant resigned his own position, the claim underMinimum Notice and Terms of Employment   Act, 1973 fails.

Exemptions, spouse, private dwelling house