Complainant

Respondent

Anonymised Parties

A Childminder and Housekeeper

An Employer in Private Household

Representatives

Act

Complaints Reference No.

Date of Receipt

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

CA-00017825-001

08/03/2018

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

CA-00017825-003

08/03/2018

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

CA-00017825-004

08/03/2018

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

CA-00017825-005

08/03/2018

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

CA-00017825-006

08/03/2018

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

CA-00017825-007

08/03/2018

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

CA-00017825-008

08/03/2018

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

CA-00017825-009

08/03/2018

The complainant was employed by the respondent as a childminder/housekeeper and gardener from the 5th of September 2016 until the 25th of September 2017 when she was dismissed from the employment. She was paid €350.00 nett per week. She is claiming unfair dismissal, minimum notice. annual leave, public holidays, Sunday Pay and that she did not receive a statement in writing in relation to her terms and conditions of employment.  

The complainant said that she carried out a wide range of domestic duties including cleaning, cooking, laundry and ironing and minding 2 children and bringing them to school and she was also required to carry out gardening. She worked 7 hours per day for 5 days per week usually, but she also had to work extra hours during school term and 15 to 20 hours per week during the holidays. She said that she was dismissed without notice on the 25th September 2017.

She said that she was sick for a number of days from the 19th of September 2017 and unable to work. She was asked by the respondent to make up the hours on the Saturday and Sunday. However, she was still unwell and could not work on the Saturday. The respondent then asked the complainant to work 5 hours on Saturday. The complainant was still unwell and she texted the respondent to say she would not be at work. On Sunday the 24 September the respondent texted her to say that she would not need her the following week except Monday.

The respondent informed her on Monday that she would not require her services any longer as she had been replaced and asked her to hand over the keys to her brother. The respondent, in a text message dated the 30th of September 2017, told the complainant that she had hired an au pair and she was no longer required for the job.

The respondent did not attend the hearing.

In a written statement, the respondent stated that the complainant had 2 contracts with her.   The first contract was from September 2016 until June 2017 and a further contract was given to her in September 2017.

She was employed as childminder on a part time basis for 5 to 6 hours per day and paid €250 per week. She was also expected to do au pair work. The respondent noticed after 2 months that she could not fulfil the requirements. The complainant told her that she needed extra income and her hours were increased to 7 per day and her pay to €350 per week. The respondent also paid 2 months to the complainant’s landlord to facilitate her move to a new apartment. The complainant was paid by both cash and credit transfer and any extra hours she worked were fully paid for. The respondent moved to a bigger house in February 2017 and she gave the complainant an option to look for another job if she did not wish to work in the bigger house, but the complainant agreed to continue in the employment. She continued until her contract ended in June 2017.

The respondent said that she had a number of problems with the complainant in the performance of her duties including breaking items, not completing the expected jobs, mixing up clothes, lateness, not doing the hours she was paid for and using the washing machine for her clothes without permission. She brought her friend to the house without permission and allowed him to help with housework and she also brought the children home from school in her friend’s car.

After the completion of the first contract in June 2017, the complainant requested work so that she would have an income during the Summer period. She was offered random work during the Summer period to help her with her income.

The complainant was then offered another contract in September 2017 to do the same job. She said that she was not offered a 9-month contract as she had the previous year as she had not been punctual and there were conflicts with her. When the complainant resumed the job in September she failed to turn up on time and she had a lot of absences. She told the complainant that she could not offer her the job and the agreement came to an end.

The first matter I must consider is whether the complainant has one year’s continuous service with the respondent pursuant to Section 2(1)(a) of the Unfair Dismissals Act 1977. The complainant denied that there were 2 different periods of employment and she said that the documentation she submitted in evidence supports her claim that she was in continuous employment. Having reviewed all the correspondence between the parties, I am satisfied that the complainant was in continuous employment with the respondent from the 5th September 2016 until the 25th September 2017 when she was dismissed. I note that the complainant worked less hours during the Summer but there was no break in the employment. I am satisfied therefore that I have jurisdiction to hear the complaint under the Act.

. Section 6 of the Unfair Dismissals Act 1977 as amended provides inter alia as follows:

“ (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Subsection (4)(b) provides that “the dismissal of an employee will not be unfair if it results wholly or mainly from inter alia the conduct of the employee”. In addition, subsection (7) provides that where appropriate regard may be had “to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.”

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Therefore, the burden of proof rests with the respondent to demonstrate the dismissal was neither substantially nor procedurally unfair. The respondent did not attend the hearing, but she provided a written response to the complaint.   I note that she states that the complainant was dismissed for performance related issues. The complainant said that none of the matters raised by the respondent were brought to her attention. She accepts that the respondent told her she was not to take the children to school in her friend’s car and this never happened again. She understood that she had permission from the respondent to allow her friend to help her with household as well as the garden.

I am satisfied, on the uncontradicted evidence of the complainant, that there were no substantial grounds to justify the dismissal. The dismissal was procedurally unfair given the complete lack of procedures and the way the dismissal was carried out. The allegations about her performance were not put to her and she was not given an opportunity to respond. It is fundamental to any dismissal that fair procedures and natural justice are applied and that the person being dismissed knows the reasons and has an opportunity to respond and to appeal the decision. For all the above reasons, I find that the complainant’s dismissal was unfair within the meaning of the Act.

I find that the complainant was unfairly dismissed. The complainant obtained employment in 3 weeks and 1 day following her dismissal at a higher rate of pay. I award the complainant €1,120 nett compensation for the financial loss she suffered.

This complaint is under the Organisation of Working Time Act in respect of compensation for Sunday work.

The complainant submitted that she worked for the respondent for 12 Sundays but she was not paid any extra pay for Sunday work in accordance with the Organisation of Working Time Act.

The respondent did not attend the hearing. In her written statement she said that she had paid the complainant for all the hours she worked.

The first matter I must consider is whether the complaint about Sunday work was referred to the WRC within the six-month statutory timeframe as set out in section 41(6) of the Workplace Relations Act, 2015 which states:

“subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.“

This period is extendable to 12 months provided the complainant can establish reasonable cause for the failure to refer within the 6 months period.

I note that the complainant’s employment terminated on the 25th of September 2017 and her complaint was referred to the WRC on the 8th March 2018.   Therefore, the Sundays which are within this 6 months’ time period are between the 9th September 2017 and the 8th March 2018. There are 3 Sundays within this time frame and the complainant has provided no evidence that she worked on any of these Sundays. I find therefore, that the complaint about the contravention of S.14 (1) of the Organisation of Working Time Act in relation to payment for Sunday work was referred to the WRC outside the statutory time limit. I have no jurisdiction in this matter.

I find that the complaint was referred outside the statutory 6 months period for referring a complaint and therefore I have no jurisdiction in the matter.

This is a complaint under the Organisation of Working Time Act 1997, concerning paid annual leave

The complainant said that she did not receive any paid annual leave during the period of employment.

The respondent did not attend the hearing. In a written statement she said that during the first 9 month contract the complainant was provided with paid annual leave of 4 weeks, 2 weeks at Christmas and 2 weeks at Easter.

Section 19 of the Organisation of Working Time Act 1997 provides that an employee is entitled to paid annual leave and Section 25(1) of that Act requires an employer to keep records. Section 25(4) provides that where an employer fails to keep records the onus of proof is on the employer to show that the Act has been complied with. As the employer did not attend the hearing or provide any records to establish that she paid annual leave to the complainant, I have to accept the uncontested evidence that the complainant did not get paid annual leave.   I find that this complaint is well founded. Based on the evidence of the complainant, I calculate that she worked 937 hours between 1st January 2017 and the 25th of September 2017 and 8% of these hours amount to 74.96 hours. The complainant did not get any pay slips but it would appear she was paid €10 an hour nett. Therefore, I award the complainant €749.60 in respect of her annual leave entitlements.

I award the complainant €749.60 nett compensation in respect of the loss of her annual leave entitlements.

This is a claim for Public Holidays.

The complainant submitted that she was not paid for Public Holidays during her employment with the respondent.

The respondent did not attend the hearing. In a written statement she said that she had paid the complainant for all the hours she worked.

This complaint was not referred within 6 months of the Public Holiday which fell on the 7th of August 2017. For this reason, I have no jurisdiction in the matter.

I have no jurisdiction in the matter.

This complaint is under the Terms of Employment (Information) Act 1994 concerning a statement under Section 3(1).

The complainant said that she did not receive a statement setting out her terms and conditions of employment.

The respondent did not attend the hearing and she did not address this issue in her response to the complaint.

The Act provides the following

3.—(1) “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.”

 (2) A statement shall be given to an employee under subsection (1) notwithstanding that the employee’s employment ends before the end of the period within which the statement is required to be given.

(3) The particulars specified in paragraphs (g), (h), (i), (j), (k) and (l) of the said subsection (1), may be given to the employee in the form of a reference to provisions of statutes or instruments made under statute or of any other laws or of any administrative provisions or collective agreements, governing those particulars which the employee has reasonable opportunities of reading during the course of the employee’s employment or which are reasonably accessible to the employee in some other way.

(4) A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer.

(5) A copy of the said statement shall be retained by the employer during the period of the employee's employment and for a period of 1 year thereafter.

I have examined all the documentation submitted in evidence by the complainant. I am satisfied the respondent failed to provide the complainant with a signed written statement regarding the terms of her employment. I find therefore that this complaint is well founded.

I find that the complaint is well founded. I award her compensation in the amount of €700 nett.

This is a claim under the Minimum Notice and Terms of Employment Act 1973.

The complainant said that she was dismissed without notice on the 25th September 2017.

The respondent did not attend the hearing.

I have found above that the complainant was unfairly dismissed and I am satisfied that she did not get her notice entitlement.

Section 4 of the Minimum Notice and Terms of Employment Act 1973 provides that,

“(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,”

I find that the complainant is entitled to one week’s notice.

I find that the complainant was dismissed without notice. I award the complainant redress in the amount of €350 nett which is one week’s pay in respect of her statutory notice.

Unfair Dismissal Act, 1977, Organisation of Working Time Act 1997, Sunday pay, annual leave public holidays, Terms of Employment (Information) Act 1994, failure to provide a written statement of terms and conditions, minimum notice.