Complainant

Respondent

Anonymised Parties

A Childminder

An Employer

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00014708-001

29/09/2017

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

CA-00014708-002

29/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014708-003

29/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014708-004

29/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00014708-005

29/09/2017

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

CA-00014708-006

29/09/2017

The Complainant is from France and has worked as a childminder in many jurisdictions in her adult career. The Respondent and her partner have three children and live in Dublin. The parties entered into an arrangement whereby the Complainant would live in the Respondent’s home for the purpose of minding children for an agreed number of hours each week. In return the Complainant was given bed and board. The parties did not intend for a full salary to be payable.

The Complainant gave evidence on her own behalf. She only remained with the Respondent for 11 weeks and believes that she worked well in excess of those hours she had agreed to work. The relationship was not a particularly happy one from the Complainant’s perspective and she now claims that she should be entitled to be paid for all the hours she worked though this had not been the original intention.

The Respondent wife believed that the arrangement was a relaxed one which would not entitle the complainant to look for a wage. The Respondent believed that the value of the accommodation provided was equal to the value of the hours of work agreed to. They had intended that the Complainant would be free to come and go as her work demanded and that she would only have to make herself available as needs arose. The only arrangement regarding money was that the Respondent would pay the Complainant for evening babysitting if these hours were in excess of the weekly quota. The Respondent was trying to get back into the workplace at this time, so her own schedule was uncertain. The Respondent conceded that she had not fully appraised herself of the status of a domestic worker in advance of entering into the arrangement.

I have carefully considered the evidence adduced by both sides in this matter. The parties entered into a casual arrangement in and around December 2016 at which time the Respondent and her partner offered to the Complainant a spare room in their family home in Dublin in exchange for some hours of work minding their three small children. It is quite clear that both parties intended that the Complainant would be available to do up to 18 hours of childminding in exchange for the bed and board offered. The Complainant was moving up from Kilkenny and was pursuing a career in acting. It must be noted that this was a private arrangement and the Complainant was not placed by a third party that would assist her and support her- such as is the arrangement with many young au-pair candidates.

It is also quite clear that there was never any agreement that the Complainant would receive a wage for these hours of work as the Respondent and her partner had placed quite a high monetary value on the accommodation being provided by them in their family home – evidence adduced tended to suggest that a room rental would be in the region of €100.00 to €150.00 per week .

Nothing was committed to paper and the Complainant says that those terms that had been agreed to were not upheld and that there were significantly more demands placed on the Complainant than the 18 hours she agreed to. For example, the Complainant says that the respondent insisted that the arrangement would include two evenings of babysitting each month which had never been her understanding. The Complainant gave evidence that she was always being asked to stay a little longer or arrive a little earlier or otherwise make herself available in ways that were not counted as the basic 18 hours agreed.

An issue of some contention was the arrival of two cats with the Complainant. The Respondent accepts that she knew in advance that the Complainant was only prepared to enter into the arrangement if her two beloved cats could be housed too. The Respondent did not fully appraise herself of the situation, and I accept that the addition of two large Tom Cats to the household was bound to take some getting used to. To be fair to the Respondent, I accept that the Respondent made a reasonable accommodation for the cats who were allowed in and out of the Complainant’s ground floor room though they were not generally given access to the house.

Without doubt, the death on the road of one of the cats was very upsetting for the Complainant and her relationship with the Respondent never really improved after that event.

The Respondent evidence was that as a stay at home mother, she only required minimum assistance form the Complainant. In her calculations of the hours worked for the duration of the relationship, she gave evidence that many of the weeks the Complainant worked much less than the 18 hours agreed to. Her calculations show a number of weeks where the hours worked were in excess of 18 but only by an hour or two. The Complainant on the other hand presented weekly calculations showing a number of weeks where she worked well in excess of the 18 hours agreed to.

It has proved difficult to reconcile these two differing calculations methods. No agreed contemporaneous records were kept.

The Complainant made the case that the oral Contract entered into by the parties had been breached by the Respondent who pressurised the Complainant into doing more hours and parts of hours than had been agreed to. The Complainant claimed that as a result of this behaviour that she should now retrospectively be paid for every hour she worked although that was never part of the original “bartered” arrangement. The Complainant calculated she was owed €1,677.00.

The Respondent made the case that as far as possible she accommodated the Complainant’s need to be available for acting work and that the nature of that work can be disruptive with the Complainant having to make last minute arrangements with the Respondent to make herself available for auditions etc. The Respondent said she was reasonably flexible in this regard. The Respondent also had another childminder coming in on Fridays and a cleaning lady came in twice a week.

The Complainant moved into the Respondent’s house in and around January of 2017. It is noted that the minimum wage at that time was €9.25 per hour and that the relationship was subject to the Code of Practise for Protecting Persons Employed in Oher People’s Homes (2017) (although neither party seemed to have been aware of that fact). In the circumstances the Complainant was entitled to be paid the minimum wage though this was subject to deductions for the full board and lodgings provided.

I have perused the two sets of dates and hours provided to me by either side and I am satisfied that over the 11 weeks that the Complainant worked with the Respondent she worked the hours as presented by the Respondent which ranged anywhere from 20 hours down to 10 hours in any given week. In total the Complainant worked a total of 160 hours during the 11 weeks. The Respondent was entitled to deduct board and lodgings in the amount of €55.00 per week. This figure is low in circumstances where the allowances have not been revised since the National Minimum Wage Act of 2000.

I note that no money at all was paid for the duration of the relationship so that there is a shortfall due and owing to the Complainant. Full pay of €1,4580.00 is subject to a lawful bed and board deduction of €605.00 which means the Complainant is to be remunerated in the amount of €875.00 which equates to the sum of €79.50 for every week worked.

The relationship broke down at the end of the tenth week with the Complainant departing the workplace at the end of the eleventh week. It is not necessary for me to determine the rights and wrongs of the unfortunate breakdown in the relationship which was hard for both parties and presumably on the children who had formed a bond with their childminder.

The Complainant brought complaints under a number of different pieces of legislation. There is a claim for a shortfall in wages made under the Payment of Wages Act, 1991 which I have just dealt with.

The Complainant brought a number of complaints under the Organisation of Working Time Act 1997 regarding breaks and rest periods and annual leave. None of these claims were proven and I will make not make any decisions under this legislation. Pursuant to the legislation I find these claims to be not well founded.

The Complainant brought a complaint under the Unfair Dismissals Act 1977 though in evidence it became clear that she had not worked for 52 weeks with the Respondent and did not otherwise qualify for relief under this act.

The Complainant brought a Complaint under the Terms of Employment (Information) Act 1994 and I accept that the Complainant should have been provided with a minimum Statement of the terms of her employment in the usual way within two months of the employment having commenced. That said, the parties both knew that in these particular circumstances there was a period of adjustment required before they could formalise the arrangement. The issue of the cats, for example, could have brought this arrangement to a close within the first few weeks as there was tension over their presence.

Under the Payment of Wages Act, 1991 I find the claim to be well founded and I direct that the employer pay to the employee an amount of €875.00.

I find the complaints brought under the Organisation of Working Time Act 1997 to be not well founded and make no direction under this Act.

The complaint under the Unfair Dismissals Act 1977 cannot be maintained as the Complainant has not worked for 52 weeks with the Respondent and did not otherwise qualify for relief under this Act.

The Complainant brought a Complaint under the Terms of Employment (Information) Act 1994 and I accept that the Complainant should be compensated in the amount of €50.00.