Complainant

Respondent

Anonymised Parties

A Worker

An Employer

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00016938-001

19/01/2018

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

CA-00016938-005

19/01/2018

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

CA-00016938-006

19/01/2018

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

CA-00016938-007

19/01/2018

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

CA-00016938-008

19/01/2018

The Complainant was employed as an Au Pair from the 10th April 2017 until the 20th July 2017. The Complainant was paid €135 per week. There were some weeks when the Complainant was required to work additional hours, for which a €150 weekly payment was made.

The Complainant referred complaints to the Workplace Relations Commission on the 19th January 2018 alleging the Respondent had breached Section 24 of the National Minimum Wage Act, 2000, in that she was not paid the National Minimum Wage of €9.25; Section 6 of the Payment of Wages Act, 1991, in that she was paid less than the amount owing to her; Section 7 of the Terms of Employment (Information) Act 1994, in that she did not receive a written employment contract; and Section 27 of the Organisation of Working Time Act 1997, in that during those weeks when she worked longer hours, she did not receive the rest breaks she was entitled to under the Act.

Terms of Employment (Information) Act, 1994 – CA-00016938-006

The Complainant stated that she worked a 22.5 hours’ week from Monday to Friday as an Au Pair taking care of two children in the family home.   She was provided with accommodation.   The Complainant stated that she had not been provided with a written statement of her terms and conditions of employment during her employment.

National Minimum Wage Act, 2000 – CA CA-00016938-001

The Complainant provided copies of correspondence sent to the Respondent in November and December 2017 including, on the 13th December 2017, a request for a written statement of her average hourly rate of pay for the period of her employment, pursuant to Section 23 of The National Minimum Wage Act, 2000.

She contends that she was paid €135 for a 22.5 hours’ week when she was entitled to be paid €149.37 and that during the two-week period 10th April 2017 to 21st April 2017 and from the 3rd July to 20th July 2017, she was paid €150 a week when she was entitled to €426.86.

The Complainant provided a schedule of her working hours, with the 22.5 hours’ weekly calculation based on working hours of 7.30am to 9.00am and 15.00hrs to 18.00hrs, a total of 4.5 hours daily, Monday to Friday. On those weeks when she contends she worked 52.5 hours, the working hours were 7.30am to 18.00hrs (10.5 hours X 5 days).

Organisation of Working Time Act, 1997 - CA-00016938-007, CA-00016938-008

The Complainant stated that during the weeks she allegedly worked 52.5 hours, she was required to work more than the maximum number of hours permitted in a week and she did not get the breaks she was entitled to during each working day.

Terms of Employment (Information) Act, 1994 – CA-00016938-006

The Respondent stated that the fact that an Au Pair who works part-time hours in a childminding capacity is entitled to a contract of employment was unchartered waters for her and she accepts that did not provide one.

National Minimum Wage Act, 2000 – CA CA-00016938-001

The Respondent stated the Complainant was paid €135 a week plus accommodation. She worked 5 days a week in her home. She stated that her agreement with the Complainant was for a 20-hour working week, consisting of a 4-hour working day, from 8.00am to 9.00am and from 15.00hrs to 18.00hrs, for a payment of €135.

She provided a schedule of hours worked in the weeks (when the children were on holidays), that the Complainant alleges she worked longer hours.   These show weekly working hours of 22.75, 25.5, 35, 23.5 and 29, for which payments of €150 per week were made.   The Respondent also stated that she paid holiday pay, such as week commencing 5th June 2017 when the family were away and the Complainant was on holidays and was paid.

Organisation of Working Time Act, 1997 - CA-00016938-007, CA-00016938-008

The Respondent stated that she is not in breach of the Organisation of Working Time Act as the Complainant was not required to work hours above the maximum permitted by law.

She also stated that based on the schedule of working hours, the Complainant had opportunity to take breaks. Also, at no time during the period of her employment did she raise a grievance in relation to her not getting the breaks she believed she was entitled to.

The Complainant worked as an Au Pair for the respondent, taking care of two school going children during certain hours of the day.   The Complainant had accommodation in the home and did not work weekends.

I find that the Complainant was an Employee as defined by Section 1 (1) of the Terms of Employment (Information) Act 1994.   Section 3 of the Act provides that an Employer shall provide an Employee with a written statement of terms and conditions of employment within two months of the commencement of the employment. The evidence was that this did not happen and therefore the Respondent is in breach of the Act.

I find that the Complainant is an employee for the purposes of the National Minimum Wage Act, and was entitled to be paid the National Minimum Wage of €9.25 per hour for the period she worked with the respondent, less €54.13 for weekly board and lodging provided by the Respondent to the Complainant.

A difference of opinion exists as regard the standard working hours; the Complainant alleges her working day started at 7.30am and the Respondent stated that the starting time was 8.00am. Based on the oral testimony and evidence provided by both parties I have decided to accept the Respondent’s contention that 8.00am was the starting time so that the standard working week was 20 hours and not 22.5 hours.  

The Complainant brought two complaints under the Organisation of Working Time Act 1997 regarding working hours and rest breaks. I find these claims to be not well founded.

There was also a claim (CA-00016938-005) for a shortfall in wages under the Payment of Wages Act and this will be dealt with under my finding and decision relating to the National Minimum Wage Act, 2000 complaint (CA-00016938-001). 

The Complainant brought a complaint under the Terms of Employment (Information) Act 1994 which is well founded and my decision is that the Respondent should pay the Complainant compensation of €150.

The Complainant brought complaints under the National Minimum Wage Act 2000 and the Payment of Wages Act 1991 and I find them to be well founded. I direct that the Respondent pay to the Complainant an amount of €600.

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.