MWD181

FULL RECOMMENDATION

MWA/17/8

DETERMINATIONNO.MWD181

ADJ-00004900 CA-00006994-001

SECTION 27 (1), NATIONAL MINIMUM WAGE ACT, 2000 AND 2015

PARTIES :

BERNARDINE MC CORMACK AND THOMAS MC CORMACK
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)

- AND -

DAYANA JONSON GONCALVES GENEROSO
(REPRESENTED BY MR MICHAEL HALPENNY BL INSTRUCTED BY MRCI)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms Treacy

SUBJECT:
1. Appeal of Adjudication Officer's Decision Numbers: ADJ- 00004899 and ADJ-00004900.

BACKGROUND:

2. This is an appeal by the Employer against a Decision of the Adjudication Officer. The Adjudication Officer issued her Decision on 7 November 2017. The Employer appealed the Decision to the Labour Court and the appeal was heard on 12 January 2018. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Ms Bernardine & Thomas McCormack against the Decision of an Adjudication Officer ADJ-00004899, CA-00006862-001, ADJ00004900, CA-00006994-001, in a claim by Ms Dayana Jonson Goncalves Generoso under the National Minimum Wage Act 2000 (the Act). In this Determination Ms Bernardine & Thomas McCormack are referred to as “the Respondent” and Ms Dayana Jonson Goncalves Generoso is referred to as “the Complainant”.

Mr Richard Grogan, Solicitor, Richard Grogan & Associates, Solicitors, on behalf of the Respondent, confirmed for the Court that Ms Bernardine & Thomas McCormack were jointly and severally liable to the Complainant as her employer.

The Adjudication Officer found that the claim was well founded and she awarded the Complainant the sum of €1,444 under the Act.

Background
The Complainant commenced employment with the Respondent as an au pair on 29^thFebruary 2016. She resigned on 13^thJuly 2016. She was paid €150.00 per week and was provided with board and lodgings. In separate proceedings brought by the Complainant against the Respondent under the Terms of Employment (Information) Act, 1994, the Adjudication Officer held that the Respondent was in breach of the Act by not providing the Complainant with a written contract of employment. That decision was not appealed.

The Complainant referred a claim under the Act to the Workplace Relations Commission on 7^thSeptember 2016 in which she alleged that she was underpaid by reference to the national minimum wage established by the Act. The claim relates to the full duration of the Complainant’s employment.

The Complainant is Brazilian and was in the State having been granted a study visa by the relevant authorities, referred to as a Stamp 2 visa. The Complainant was enrolled in an eligible full-time course to study English. As a non-EEA qualifying student on a Stamp 2 visa she was permitted to work up to a maximum period of 20 hours per week in term time and up to 40 hours per week outside of term time, without being required to hold an employment permit.

Summary of the Respondent’s Case

In support of the Respondent’s appeal under the Act, Mr Grogan submitted a number of preliminary points. He told the Court that he was focussing his appeal on a number of technical aspects as outlined below and was not defending the substantive complaint under the Act. The preliminary points raised were as follows: -

(i)No valid complaint made

Mr Grogan submitted that the Respondent had not received a copy of the Complainant’s complaint form from the Director General of the Workplace Relations Commission (WRC) in the format submitted by the Complainant to the WRC, therefore the matter was not properly before the WRC (and the Court on appeal) and no valid complaint had been received.

(ii)Section 23 not complied with

Mr Grogan submitted that the Complainant had not complied with Section 23 of the Act and therefore asserted that the Court had no jurisdiction to hear the case. He accepted that the Complainant sent a letter dated 29th July 2016 to the Respondent requesting a written statement of her average hourly rate for all pay reference periods between the dates 29th February 2015 and 13th July 2016, which request she said was pursuant to Section 23 of the Act. Mr Grogan submitted that the request was not a valid request under the Act as the pay reference period cannot exceed one month.

(iii)Complainant had no entitlement to make a complaint under the Act

Mr Grogan submitted that the Complainant was working under an illegal contract therefore she had no right to make a complaint under the Act and the Court should not recognise that contract. He contended that as the Complainant worked an average of 54 hours per week which was in excess of her permitted hours under the Stamp 2 visa, she was therefore working under an illegal contract. In support of his contention, Mr Grogan relied uponAmjad Hussein v The Labour Court[2012] IEHC 364, where Hogan J held that the Labour Court could not lawfully entertain an application for leave in respect of an employment contract which was substantially illegal.

Summary of the Complainant’s Case

Mr Michael Halpenny, B.L., instructed by the Migrants Rights Centre Ireland, on behalf of the Complainant, claimed that the Complainant was not paid the minimum wage for the duration of her employment with the Respondent.

He said that the Respondent was provided with a copy of the Complainant’s complaint form in the format prescribed by the WRC and the information contained therein was identical to the e-complaint and did not bear any material difference.

Mr Halpenny submitted that the Complainant’s letter dated 29^thJuly 2016 sent to the Respondent was in compliance with the requirements of Section 23 of the Act. However, the Respondent failed to respond to the request.

In response to the point raised by Mr Grogan that the Complainant was working under an illegal contract, Mr Halpenny argued that unlike Mr Younis inHusseinthe Complainant did not require a work permit. He said that the Complainant’s contract of employment was legal at its inception as she had a valid visa to work in the State. He stated that when the Complainant took up her employment with the Respondent she had at that stage fully completed her study course and was therefore permitted to work on a full-time basis. He said that she was furnished with a schedule of hours to work from 7.00am to 5.00pm. In addition, she was required to work four hours babysitting each week. As she did not receive breaks her total hours worked were 54 hours per week. (The Court notes that the issue of breaks was the subject of a successful separate claim taken under the Organisation of Working Time Act, 1997 which was not appealed.)

Findings of the Court

(i)No valid complaint made

It appears to the Court that the two documents provided to the Court, the WRC completed form and the WRC e-complaint form, are not materially different and in any event Mr Grogan has not argued that he was not at all times in full possession of the details of the Complainant’s complaints under the Act, both at first instance and on appeal. Furthermore, the forms are not statutory forms and Mr Grogan has not argued that his clients were in any way prejudiced by his assertions in relation to the documentations. Therefore, the Court is satisfied that the matter is properly before it.

- (ii)Section 23 not complied with
The Law Applicable

- Section 10 of the Act:
  “An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month.”
- Section 23(1) of the Act:
  “Subject to subsection (2), an employee may request from his or her employer a written statement of the employee’s average hourly rate of pay for any pay reference period (other than the employee’s current pay reference period) falling within the 12 month period immediately preceding the request.”

Section 24 of the Act provides, in effect, that before submitting a claim to an Adjudication Officer under the Act a Complainant must have received a statement of his or her average hourly wage, in respect to a reference period, under Section 23 of the Act, or having requested such a statement, it was not provided within the time limited for its provision. The Act states that a dispute cannot be referred to or dealt with by an Adjudication Officer (or the Labour Court on appeal) unless the employee has complied with the provision.

The Court is satisfied that in the context of the Complainant seeking a written statement of her average hourly rate of pay in all pay reference periods, this request can be encompassed by the intention of the Act in Section 23 where it refers to “any pay reference period”. As Lord Steyn famously pointed out in inR (Daly) v Secretary of State for the Home Department[2001] 2 AC 532, [2001] 3 All ER 433,“in law context is everything”.

(iii)Complainant had no entitlement to make a complaint under the Act

Visas are issued pursuant to the Immigration Act 2004. The Court notes that Mr Grogan submitted no statutory authority for contending that the contravention of a term of a visa is illegal as opposed to a contravention of an administrative decision of policy underpinning the scheme under which the visa is issued.

The Court is quite satisfied that the Complainant entered into a valid contract of employment with the Respondent as provided for under her Stamp 2 visa. The Court is further satisfied that that contract cannot be rendered illegal by the number of hours she was required to work by the Respondent.

Mr Grogan submitted that the contract of employment was unenforceable and placed reliance on the High Court Decision inHussein. The Court is of the view that there was a clear difference between the Complainant’s circumstances and those that applied to Mr. Younis inHussein(which was set aside by the Supreme Court on appeal). In that case Mr Younis worked as a chef for Mr Hussein under a work permit, at the material time of the claims made by Mr Younis, his work permit had expired and he continued to work. Therefore, the fact that he was working without a work permit was a criminal offence. In the instant case, there is no suggestion that the contract of employment was for an unlawful purpose. The Court finds that the circumstances inHusseincase and those in the instant case are clearly distinguishable.

The substantive claim under the Act

In his evidence to the Court, Mr. Thomas McCormack, said that he recruited the Complainant as an au pair through an agency, AuPair Ireland.ie. He said that he did not realise that in doing so he was entering an employment relationship with the Complainant and had he known he would have complied with his employment law obligations. He accepted that the Complainant was not paid a rate of pay in accordance with the national minimum wage.

Conclusions of the Court

Based on the submissions of the parties at the hearing and from documentary evidence submitted the Court has established the position to be as follows:

The Complainant commenced employment with the Respondent on 29^thFebruary 2016 and resigned on 13^thJuly 2016, a period of 19 weeks and 3 days. During that time, it is not disputed that she was paid €150.00 per week and was provided with full board and lodgings.

The Court has examined the records provided which demonstrate that the Complainant worked 54 hours per week. Section 15 of the Organisation of Working Time Act, 1997 provides that an employer shall not permit an employee to work for more than 48 hours per week, therefore, the Court is confined by that provision in awarding arrears under the Act. (The Court notes that in a separate claim under the 1997 Act, the Respondent was found in breach of Section 15 of that Act and the Complainant was awarded compensation for the breach).

At the time of the claim, the minimum wage was €9.15 per hour and the deduction for board and lodgings was €54.13 per week in accordance with the Act. The Complainant was paid €150 for 54 hours per week therefore her effective hourly rate was €2.78 per hour leaving a shortfall of €6.37 x 48 = €305.76 per week x 19.66 weeks = €6,011.24. The value of board and lodgings, €54.13 x 19.66 weeks = €1,064.19. Therefore, the shortfall in pay was €4,947.05. The Court notes there was no claim for expenses incurred in processing this claim.

Determination.

The Court is satisfied that the complaint herein is well founded. Pursuant to Section 29(1) of the Act the following decision of the Court is substituted for the decision of the Adjudication Officer.

The Court determines that the Respondent should pay the Complainant arrears of wages in the amount of €4,947.05 in discharge of her claim.

Therefore, the Respondent’s appeal is disallowed, and the Decision of the Adjudication Officer is varied.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
23 January 2018______________________
MNDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.