ADJ-00013955

Complainant

Respondent

Anonymised Parties

An au pair

An employer

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018676-001

20/04/2018

The Complainant was employed by the Respondent from 26/09/2017 to 26/01/2018, she was employed as a child minder / domestic worker.

The Complainant alleges that she was dismissed from employment when her employer received correspondence from the Workplace Relations Commission informing her that the Complainant had made a complaint that she was not paying her the National Minimum Wage.

The Respondent did not attend the hearing of the complaint and was not represented at the hearing. The Respondent was sent correspondence in relation to the date, time and venue for the hearing on 28th June 2018, this correspondence was sent to the legal representative of the Respondent who had previously notified the Workplace Relations Commission that she was no longer on record for the Respondent.

I have had to reach a conclusion in this complaint on the uncontested evidence of the Complainant.

The Complainant was employed from 26th September 2017 until 26th January 2018, a period of 4 months.

The Unfair Dismissals Act, 1977 reads as follows:

Section 2- (1) This Act shall not apply in relation to any of the following persons:

(a)    An employee (other than a person referred to in section 4 of this Act) who is dismissed, who at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him and whose dismissal and his dismissal does not result wholly or mainly from the matters referred to in section 6 (2) (f) of this Act.

Section 36 of the National Minimum Wage Act covers – Prohibition of victimisation of employee by employer.

36 (1) An employer shall not cause or sufferany action prejudicial to an employee for the employee having –

a)      Exercised or having proposed to exercise a right under this Act,

b)      In good faith opposed or proposed to oppose by lawful means an act which is unlawful under this Act, or

c)       Become, or in the future will or might become, entitled in accordance with this Act to remuneration at an hourly rate of pay that on average is not less than the national minimum rate of pay, or a particular percentage of that rate of pay.

(2) Dismissal of an employee in contravention of subsection (1) shall be deemed to be unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts, 1977 to 1993 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act 1977, except that it is not necessary for the employee to have at least one year’s continuous service with the employer and that Act shall apply as if the Worker Protection (Regular Part-Time Employees) Act 1991, were repealed in relation to the number of hours an employee is normally expected to work for the purposes of that Act) and those Acts, with the necessary modifications, shall apply accordingly.

When both pieces of legislation are read together the complaint may be heard under the Unfair Dismissals Act, 1977.

I have no alternative but to accept the Complainant’s version of events that led to her dismissal. I therefore find that the complaint is well found and that the Complainant was unfairly dismissed.

In relation to mitigation of her loss of earnings I note the Complainant has not secured employment since her dismissal, she claims that she has registered with one or two agencies but has yet to secure employment. The Complainant’s efforts to secure other employment are not exactly impressive.

I award the Complainant compensation of 20 weeks remuneration i.e. €200 x 20 = €4,000.

This amount should be paid to the Complainant within 42 days from the date of this decision. 

As outlined above.

Unfair Dismissal