PWD181

FULL RECOMMENDATION

PW/17/57

DETERMINATIONNO.PWD181

ADJ-00004900 CA-00006994-005

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

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 of an Adjudication Officer's Decisions made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 12 January 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. 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-00006862-003, ADJ00004900, CA-00006994-005, in a claim by Ms Dayana Jonson Goncalves Generoso under the Payment of Wages Act 1991 (the 1991Act). 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 €510.00 under the 1991 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 1994 Act by not providing the Complainant with a written contract of employment. That decision was not appealed.

The Complainant referred a claim under the 1991 Act to the Workplace Relations Commission on 7^thSeptember 2016 in which she alleged that €510.00 was unlawfully deducted from her wages.

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 1991 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 1991 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)Complainant had no entitlement to make a complaint under the 1991 Act

Mr Grogan submitted that the Complainant was working under an illegal contract therefore she had no right to make a complaint under the 1991 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 relief 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 Respondent unlawfully deducted the sum of €510.00 from the Complainant.

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.

In response to 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, her 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.

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)Complainant had no entitlement to make a complaint under the 1991 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 1991 Act

In his evidence to the Court, Mr. Thomas Mc Cormack, 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.

Mr. McCormack said that in July 2016 both he, his wife and their children went on holidays. He said that he left €300.00 for the Complainant as two weeks’ wages and an additional €150.00 for groceries. The Complainant remained in the house during this time. He said that on their return from holidays the Complainant gave them two days’ notice that she was leaving their employment. He said that it was his understanding that she was obliged to give four weeks’ notice and therefore informed her that she was required to pay them four weeks’ pay in lieu. He said that taking account of the two days’ notice given he therefore sought the sum of €540.00 from her. As the Complainant was only in a position to give him €510.00 he accepted that amount in discharge of her obligation. The witness said that he was aware that this money was the sum total of money in her possession. He asked the Complainant to sign a form indicating that the monies had been paid in lieu of four weeks’ notice. The witness accepted that he did not seek advice prior to seeking this money from the Complainant. He further accepted that the Complainant was not advised to seek advice (nor did she do so) prior to handing over the monies.

The witness said that at the commencement of her employment the Complainant was verbally informed that she would be required to give four weeks’ notice of her intention to cease working for the Respondents. However, he accepted that she was not provided with a written contract and she did not give her authorisation for a deduction to be made in default of the four weeks’ notice instruction.

With the assistance of an interpreter provided by the Court, the Complainant gave evidence to the Court on her claim regarding the deduction of €510.00. She said that due to the conditions of her work she decided to resign from her employment and informed her employers on 13th July 2016 that she was leaving with effect from 15th July 2016. She said that her employers sought payment in lieu of notice not given. She said that they sought the sum of €540.00 from her wages. As the Complainant only had €480.00 she had to borrow money from her friend who came to collect her from their home. The friend provided an additional €30.00. She said that she was required to sign a form in discharge of her obligation to give notice. She said that she had no money left when she left her employers’ home.

Conclusions of the Court

The Court notes that the Complainant was never furnished with a contract of employment. Section 6 of the Act of the Minimum Notice and Terms of Employment Act, 1973 provided that an employee with thirteen week’s service is obliged to give her employer one week’s notice when terminating her employment. The 1973 Act does not provide for any remedy for an employer where this provision is not complied with by an employee and it does not facilitate an unlawful payment from the Complainant by the employer in default of Section 6 of the 1973 Act.

Section 5 of the 1991 Act applies both to deductions and payments and the conditions in which either a deduction or a payment can be authorised are provided for in subsection (3) of section 5. A deduction or a payment in respect of an omission is only lawful if it is authorised by the employee’s contract of employment or by law. What is in issue in this case is an omission on the part of the Complainant, she omitted to give notice. The Court is satisfied that a payment in respect of that omission was not authorised or required by a contract of employment or by law.

Therefore, the Court is satisfied that the payment of €510.00 was not consented to by the Complainant. She was unaware that she had no obligation to meet the Respondents’ demand for four weeks’ pay in lieu of notice and in all the circumstances, the Court is satisfied that it was a demand for an unlawful payment within the meaning of Section 5 of the 1991 Act. Accordingly, the Court finds that the Respondents contravened the 1991 Act when they demanded an unlawful payment from the Complainant.

Determination.

The Court is satisfied that the complaint herein is well founded. The Court orders the Respondent to pay the Complainant the sum of €510.00 in discharge of her claim.

Therefore, the Respondent’s appeal is disallowed and the Court upholds the Adjudication Officer’s Decision.

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.