Complainant

Respondent

Anonymised Parties

A Student

A Homeowner

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-00013339-001

28/08/2017

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

CA-00013339-002

28/08/2017

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

CA-00013339-003

28/08/2017

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

CA-00013339-004

28/08/2017

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

CA-00013339-005

28/08/2017

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

CA-00013339-006

28/08/2017

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

CA-00013339-007

28/08/2017

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

CA-00013339-008

28/08/2017

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

CA-00013339-011

28/08/2017

A Complaint Form was lodged with the WRC on 28th August 29017. A first hearing which took place on 8th November 2018 was adjourned as the interpreter was known to the parties. A second hearing took place on 14th December 2018.

The Complainant is a young woman from an African state who moved to Ireland in 2015. The Respondent is her aunt.

The Respondent submits that the Complainant initially came from her native country to Ireland in or around July 2015, for a three-week holiday with her aunt and her cousin in Galway. At the end of her holiday the Complainant expressed a wish to remain in Ireland with her aunt and she began attending school in Galway. However, due to inter-personal difficulties between family members, the Complainant and her aunt became homeless. The Respondent invited both individuals to Dublin to stay with her, her husband and four children in their three-bedroom house. The Respondent was not able to provide long-term accommodation for both individuals, but she agreed to provide for the Complainant and for the Complainant to live with her.

The Respondent submits that she enrolled the Complainant in a school in Dublin; purchased her a phone and a tablet; bought her a school uniform and gave her €20.00 per week for her lunch.

The Respondent submits that the Complainant travelled to and from school by bus each day, which took approximately one hour each-way. The Complainant would leave the house at 07.30 and would arrive home at approximately 17.30 each evening.

The Respondent submits that the Complainant attended several family outings in 2016 and 2017. The Respondent arranged for the Complainant to get her hair done once a month at a cost of €35.00 per month.

At the time the Complainant was undocumented in Ireland. To legitimise the situation, in September 2016, the Respondent organised a Stamp 2A Visa, which cost €300.00, for the Complainant.

At that point the Respondent arranged for some part-time work for the Complainant with a family friend, Mr B. This work was normally carried out on a Saturday and consisted of cleaning duties in Mr B's home. The Complainant was paid €10.00 per hour by Mr B.

In early 2017, the Respondent began to grow worried about the Complainant and her on-going difficulties with her academic studies. It was recommended that the Complainant should change schools. In addition to concerns over the Complainant's academics the Respondent was increasingly concerned by the Complainant's behaviour.   On 5th March 2017, the Complainant left the Respondent's home and she has not returned since.

The Respondent maintains that at all times she looked after and cared for the Complainant as if she was her own daughter. The Respondent contends that she encouraged the Complainant to pursue academics, so she would have a better future. Any interpersonal difficulties that arose between the parties are private and personal to the individuals concerned.

This matter, according to the Respondent, is not an employment law dispute.

In direct evidence at the hearing, the Respondent stated that the Complainant woke up early on weekdays and headed to school at around 07.00 as she wanted to go to the breakfast club. The other children would not usually get up until around 07.30 as their school was only two minutes from the house and it started at 08.50. It was the Respondent who prepared the children's lunches and did any cleaning that was needed. As the children came home from crèche and school at 14.30 they normally ate their dinner together at around 16.30. The Complainant was home later and normally ate dinner on her own.

The Respondent stated that she took the Complainant into her home as a daughter. She took her to have been happy with her situation. The Respondent stated that she did not employ her niece and was not aware of her getting up at 04.00.   Her expectations of the Complainant was that she would make her bed, clean her room and help with the cooking. If she helped with bathing the children, it was done of her own free will.

A witness for the Respondent, a cousin of the Complainant, gave evidence at the hearing. The witness stated that she visited the Complainant regularly while she was living with the Respondent and did not see her doing housework, except for doing some cooking sometimes. The Complainant never mentioned anything to the witness of anything bad taking place in the house. The witness never thought the Complainant was unhappy. The witness did not get an impression that the Complainant was working hard with daily chores nor did the Complainant ever say to her that she was working hard. In response to this evidence the Complainant stated that she was scared to say anything to the witness in case it got back to the Respondent.

The Respondent submits that the Complainant was not a worker (domestic or otherwise) and that there is no evidence to suggest any employment relationship between the parties.

The Complainant submits that she was employed as a domestic worker by the Respondent from 7th December 2015 until 5th March 2017.

The Complainant is a citizen of an African state, who moved to Galway, in 2015. In or around 6th December 2015, the Complainant moved to Dublin to live with her aunt, the Respondent. The Respondent was living with her husband and four children. The Complainant shared a room with one of the Respondent's daughters.

The Complainant submits that the day after she moved into the Respondent's house, she was told that she would have to help with housework and taking care of the children. The complainant had no problem with this as she was happy to help with household chores and minding the children.

At the time, the Complainant did not realise the extent of the work she would be required to do and that essentially, she would become the family’s live in domestic worker.

The Complainant was subsequently expected to get up at 4 a.m. each morning to undertake her tasks. She was required to sweep, mop and hoover the floors upstairs and downstairs; wash and dry the dishes; tidy the house; dress bath and feed the children; play with and mind the children; put the children to bed and assist in preparing meals for the Respondent and her husband.

On Sundays, she was also expected to work before and after Church/Prayer Meeting. Aside from when she was attending school, the Complainant asserts that she had little to no time to herself. Given the number and age of the Respondent's children, she had to work at nearly all times.

The complainant was required to carry out her duties on a daily basis. Should have cold starting to feel exhausted shortly after moving into the Respondent's home.

This intense level of work continued until January 2016, when the Complainant enrolled in a secondary school in Dublin city centre.

After she started school on the 18th of January 2016, the Complainant was still expected to continue with tasks before and after school. She continued to get up at 4 a.m. and carried out her duties until she left to go to school. Classes would start at 8:40 a.m. each morning and the Complainant would aim to leave at 7 a.m. but on average she would leave the house at 7:30 a.m. She was often delayed however and would subsequently be late for class. It took more than one hour for the Complainant to get to school.

The Complainant joined the Breakfast Club at school, so she would usually managed to eat at the school in the morning. She had nothing to eat before leaving the house. She would also eat lunch at school which was provided for free by the school.

In or around the 1st of February 2016, the Deputy Principal of the Complainant's school and the Complainant's Form Teacher met with the Respondent to discuss issues arising in relation to the Complainant. The Respondent had failed to buy the required uniform and materials for the Complainant. The Complainant was also having trouble staying awake in class and keeping up with her studies.

The school authorities had spoken to the Complainant about the various issues before meeting with the Respondent. The Complainant explained that she was required to do excessive domestic work before and after school, so she was exhausted and, as a result falling asleep in class. She was also denied the time to complete her homework. She further explained that the Respondent would not buy her school uniform or books. In addition, she recalled that she had no money herself and would ask the Respondent for personal items, but these were often refused. The Complainant submits that the only thing the Respondent di provide was a Leap Card, which the Complainant relied upon to travel in and out to school. In the end the school provided the Complainant with the required items and a skirt and jacket as part of her school uniform.

The Complainant submits that after the meeting with the school authorities the Respondent became very angry with her and their relationship deteriorated even more. The Complainant was subsequently forced by the Respondent to tell the school authorities that all was well at home.

The Complainant submits that during school holidays she was required to work all day; the only exception being on Sundays when the family went to Church.

In or around October 2016 the Complainant was moved to another school to get additional supports she required.

The Complainant asserts that she was mistreated by the Respondent.   She says she was subjected to verbal abuse and neglected; the Respondent would often shout at her and threaten that she would be sent back to her home country if she did not do her work properly. Due to the excessive working hours at home and school work the Complainant was always exhausted.

In or around 6th March 2017 the Complainant left the Respondent's house and sought help from the Migrant Rights Centre Ireland.

In direct evidence at the hearing the Complainant stated that she never told anyone about her situation as she thought she might get into trouble if she did. She did not recall doing paid work elsewhere and with the amount of work she had to do at home she did not have time for a social life.

Regarding the work she was forced to do the Complainant stated that she used wake up at 04.00 each morning, shower and then start cleaning the house, both upstairs and downstairs; cleaning carpets, corridors, toilets etc. After this she would help the children shower and make their breakfasts.

The Complainant stated that when she got home from school at around 17.00 it she was immediately started cleaning again and would then have to prepare food for the children. Around 22.00 she would help the children shower and make them porridge before they went to bed. She finally got to bed herself around 23.00.   the Complainant stated that she had a feeling that if she didn't do the work she would be in trouble with the Respondent.

The Complainant stated she was never given any money by the Respondent except the odd €10.00 for lunches and her Leap card.

In cross examination, the Complainant stated that she woke at 04.00, had a five-minute shower, and then started into her work. In the bedrooms she says she cleaned the carpets and mopped the floors. She stated that she would go into the children's bedrooms at around 4.15 and hoover and clean while the kids were asleep.

The Complainant stated she did not use the dishwasher in the house as she was never shown how to use it.

The Complainant stated that when she got home in the evenings she would also make dinner for the children.

The Complainant was stated that she only ever went on one trip from the house.   Several photographs were shown to her which she stated were occasions which all took place after Church.

Regarding the hair stylist the Complainant agreed that she did get her hair done but only after she had completed all her work, sometimes this could be at 23.00.

I have considered this matter carefully.

Section 41 of the Workplace Relations Act, 2015 states that:

41. (1) An employee (in this Act referred to as a “complainant”) or, where the employee so consents, a specified person may present a complaint to the Director General that the employee’s employer has contravened a provision specified in Part 1 or 2 of Schedule 5 in relation to the employee and, where a complaint is so presented, the Director General shall, subject to section 39, refer the complaint for adjudication by an adjudication officer.

Section 3 of the2015 Act states:

3. (1) For the purpose of the operation of this Act, and to the extent only that this Act applies, in relation to a relevant enactment or provision thereof—

(a) references in this Act to employer shall be construed as references to employer within the meaning of the relevant enactment or provision concerned, and

(b) references in this Act to employee shall be construed as references to employee within such meaning.

Section 2 of the National Minimum Wage Act, 2000, states:

Interpretation.

2.—(1) In this Act, unless the context otherwise requires—

“contract of employment” means—

( a) a contract of service or apprenticeship, or

( b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for that person or a third person (whether or not the third person is a party to the contract),

whether the contract is express or implied and, if express, whether or not it is in writing;

“employee” means a person of any age who has entered into, or works or has worked under, a contract of employment;

Section 1 of the Payment of Wages Act, 1991, states:

Section 1 of the Act states:

1.— (1) In this Act—

“ contract of employment” means—

( a) a contract of service or of apprenticeship, and

( b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer,

whether the contract is express or implied and if express, whether it is oral or in writing;

“ employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purpose of this definition, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or the Government, as the case may be, and an officer or servant of a local authority for the purposes of the [ Local Government Act 2001 (as amended by the Local Government Reform Act 2014) ], a harbour authority, a health board or F2 [ a member of staff of an education and training board ] shall be deemed to be an employee employed by the authority F2 [ or board ], as the case may be;

“ employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

Section 1 of the Organisation of Working Time Act, 1997, states:

“ employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of F3 [ this Act and the Activities of Doctors in Training Regulations ], a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act, 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the [ Local Government Act 2001 (as amended by the Local Government Reform Act 2014), ] or of a harbour authority, health board or F5 [ a member of staff of an education and training board ] shall be deemed to be an employee employed by the authority, board or committee, as the case may be;

“ employer” means in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment, subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “ contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

Section 3 of the 1997 Act states:

3.— (1) Subject to subsection (4), this Act shall not apply to a member of the Garda Síochána or the Defence Forces.

(2) Subject to subsection (4), Part II shall not apply to—

( a) a person engaged in—

(i) sea fishing,

(ii) other work at sea, or

(iii) the activities of a doctor in training,

( b) a person—

(i) who is employed by a relative and is a member of that relative’s household F7 [ or is employed by the person ’ s civil partner within the meaning of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 ], and

(ii) whose place of employment is a private dwelling house or a farm in or on which he or she and the relative F7 [ or civil partner ] reside, or

Section 1 of the Terms of Employment (Information) Act, 1994, states:

“ employee” means a person who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer; and for the purposes of this Act, a person holding office under, or in the service of, the State (including a member of the Garda Síochána or the Defence Forces) or otherwise as a civil servant, within the meaning of the Civil Service Regulation Act, 1956, shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority for the purposes of the [ Local Government Act 2001 (as amended by the Local Government Reform Act 2014) ], a harbour authority, a health board or F4 [ an education and training board ] shall be deemed to be an employee employed by the authority F4 [ or board ], as the case may be;

“ employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “ contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer;

The question to be answered in this case is whether the Complainant was an employee of the Respondent as per any of the definitions cited above.

Having considered the evidence adduced I find that the there was no employer/employee relationship between the Respondent and the Complainant.

In considering the Complainant’s evidence, I find that there are several elements of her evidence which do not stand up to scrutiny and bring me to question her credibility. For instance, she says she started hoovering rooms at 04.00 each morning; surely this would have woken the household and would not have happened. She says she showered the children at 22.00; given the children’s ages this was extremely late to be showering them. The Complainant stated that she had to shower the children last thing at night and first thing in the morning; even in the most hygienic of households this regime seems excessive.   The Complainant says she did not use the dishwasher as she was never shown how to use it; again, this seems hard to believe, why have a dishwasher if it is never used.

Notwithstanding the above, I have no doubt the Complainant was expected to do household chores, perhaps more than what was fair but significantly less than she made out.

It should be noted that, Article 1 of the International Labour Organization Domestic Workers Convention, 2011, states, inter alia, that:

For the purpose of this Convention:

(c) a person who performs domestic work only occasionally or sporadically and not on an occupational basis is not a domestic worker.

I am also of the view that the relationship between the Complainant and her aunt, the Respondent, was far from ideal, however, I find the Respondent’s evidence more credible.  

I also believe the Complainant’s cousin, when she stated that she never believed, nor did the Complainant tell her, that she was being badly treated.

I find that the Complainant has failed to adduce sufficient evidence to lead me to conclude she was an employee of the Respondent; no contract of employment, either express or implied, ever existed between the Complainant and the Respondent; this to me was a child in a house carrying out her chores, no more.

Having considered all the evidence put before me in this case, I find that the Respondent was not, nor ever was, the employer of the Complainant.   Therefore, the Complainant does not have the locus standi to bring claims under the various Acts listed below against the Respondent and I in turn, have no jurisdiction to hear the matter.