Complainant

Respondent

Anonymised Parties

An au pair

An individual

Act

Complaint/Dispute 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-00023030-004

05/11/2018

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

CA-00023030-005

05/11/2018

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

CA-00023030-006

05/11/2018

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

CA-00023030-007

05/11/2018

The Complainant was employed as an Au Pair 29/08/2017 until 08/05/2018. As per the complaint form the Complainant alleges she worked 41 hours per week and was paid €100 plus her full board and lodgings.

The complaint was received by the Workplace Relations Commission on 05/11/2018, the complaint is in four parts, these are as follows:

CA – 00023030 – 004 – complaint referred under s.27 of the Organisation of Working Time Act, 1997 – “I did not receive my paid holiday / annual leave entitlement.

CA – 00023030 – 005 – complaint referred under s.6 of the Payment of Wages Act, 1991 – was not paid her notice period of one week.

CA – 00023030 – 006 – complaint referred under s.7 of the Terms of Employment (Information) Act, 1994 - No written contract was issued to the Complainant.

CA – 00023030 – 007 – complaint referred under s.27 of the Organisation of Working Time Act, 1997. The Complainant worked on 30/10/2017 which was a Public Holiday, she did not receive her statutory pay.

At the hearing the representative of the Complainant verbally raised the possibility of including a complaint under the National Minimum Wage Act 2000 (CA-0024200 – 001). I informed the representative that this was not possible at this point because the Respondent was not on notice that such a complaint would be included.

Background.

1.       The Complainant commenced employment in the capacity of Au Pair on 29th August 2017.

2.       The employment terminated on 7th May 2018.

3.       The Complainant first found out about the vacancy on a website (name withheld)

4.       The Complainant was interviewed for the position by the Respondent at the Respondent’s home. During said interview the Respondent outlined the list of duties the Complainantwould be expected to undertake.

5.       The Complainant was informed by the Respondent that the position was full-time and that she would receive €100 per week as wages as a live-in Au-Pair.

6.       The Complainant was not aware of her rights under Irish employment legislation at the time.

7.       The Complainant who was a young Spanish national of 18 years old when she arrived in Ireland on 13th July 2017 to seek employment and study English.

8.       On average the Complainant worked 41 hours per week when no additional babysitting was required.

9.       The Complainant submits that on Wednesdays she was required to work until 8.00pm as the Respondent attended Spanish classes and the father of the children was not home from work at that time.

10.   The Complainant alleges that she was required to work on five Saturdays for five hours on each occasion.

11.   The Complainant alleges that on one occasion she was required to mind the children overnight.

12.   The Complainant alleges that she never received any holiday entitlement.

13.   The Complainant took holidays from Saturday 23rd December 2017 until Sunday 7th January 2018, both dates inclusive. And again, from Saturday 27th March 2018 to Sunday 8th April 2018, both dates inclusive.

Complaints.

Terms of Employment (Information) Act, 1994.

The Complainant was not provided with a contract of employment in line with section 7 of the Act.

The Complainant seeks redress in the amount of 4 weeks’ pay €1,366.20

Organisation of Working Time Act, 1997.

The Complainant was not provided with her full entitlement in respect of annual leave in the entire duration of her employment pursuant to section 27 of the Act.

It is also alleged that the Complainant was not consulted about when the annual leave was to be taken. She was merely informed that the family were going on holiday and that she would have to take her annual leave at the same time. As this is a breach of section 20 the Complainant requests another two weeks pay in the amount of €683.10 to be awarded by the Adjudicator under Section 27 of the Act.

It has been calculated that there has been an underpayment of holiday entitlement in the total amount of €1,020.22 accrued but not paid to the Complainant on cessation of employment as provided for under section 23 of the Act.

Payment of Wages Act 1991.

The Complainant was not provided with wage slips throughout her period of employment.

The Complainant did not receive her statutory notice of one week at the end of her employment.

CA – 00023030 – 004 - Holiday Pay.

The Respondent states that she was on holiday from work for the school mid-term break and the Complainant informed her that she would like to work for that week, the Respondent agreed to this and stresses that the Complainant received her full weeks wages every week.

At Christmas the Respondent was again on holidays from work and asked the Complainant what she was going to do for the Christmas holidays. “Had she stayed she would have received her full pay”. The Respondent believes she gave the Complainant €50 or €100 and a Christmas gift. The Complainant went home for the Christmas season.

Again, at Easter the Respondent was on 2 weeks holidays from her job and she asked the Complainant what she wanted to do. The Complainant informed the Respondent that she would like to take the time off and go home to Spain to see her family. The Respondent gave the Complainant €50 or €100 and an Easter egg.

CA – 00023030 – 005 - – complaint referred under s.6 of the Payment of Wages Act, 1991 – was not paid her notice period of one week.

The Respondent suggested to the Complainant that maybe she should look for another job as the text the Complainant had sent her led the Respondent to think that she did not want to be an au pair anymore.

The following is taken from a letter sent to the WRC from the Respondent.

The Respondent states that the Complainant was becoming “grumpier”. When the Respondent requested the Complainant to hang up some washing one morning, it takes on average 10 minutes to hang some washing. There were no children to mind that morning, Tuesday, 8th May, as they were due back from Cork at 2pm. The Complainant sent lots of aggressive texts saying, “I not here to do your housework” and “I here to mind children”, but there were no children in the house. The Complainant was due to work 7.30 am to 9.05 am as normal, so I thought she might hang my washing for me on the clothes horse as I was running late and didn’t get a chance. The Complainant refused this small task. The Respondent received angry texts back.   When the Complainant sent this text about changing jobs the Respondent said okay. She said, “I need a week or two to find a new job and I need money”.   So, I then asked the Complainant to leave that day as I was getting scared thinking of having her in my home refusing to do anything and getting aggressive with me. I had visions of the Complainant hiding in her room not doing anything and not minding the children and looking for two weeks salary on top of this. I, in turn, had to sort out minding my children because I was in work. When I got home from work, she was aggressive with me. She said that it was illegal to throw her out without a week or two salary. She said she was all alone and had no family and what was she going to do. I got really upset because first of all she is 19 years old, an adult. Secondly, she has family in Terenure and Donaghmede whom she stays with every weekend.   So, she had family and some where to go. It was just the money she was upset about. I was not going to drive her to the bus or wherever because I was too upset.   She could have ordered a taxi to her aunt in Terenure but instead she took the bus and I suggested she leave some bags with me as she could not take everything. When she came eventually to pick up her things she was not friendly to the children at all and they had done nothing to offend her.   On the day in question, 8th May, she did nothing for me. I happened to have €50 in my bag which I gave to her in case she wanted to get a taxi or whatever, but she didn’t do any work for me at all.

CA – 0023030 – 006 - complaint referred under s.7 of the Terms of Employment (Information) Act, 1994 - No written contract was issued to the Complainant.

I did not give the Complainant a contract because I did not feel it necessary. We had a verbal agreement. We are advised at the XXXXX (name withheld) au pair website to give a contract to protect both parties but the Complainant never asked for one.

“I felt that I trusted this person in my home with my house and children so didn’t feel the need for a contract. That way if the person is unhappy they are not obliged to stay either. And part of my verbal agreement was that if the kids were unwell that she would help me out if necessary. She got her salary every Friday evening and room and board included. I did not give her extra money because I felt that I never asked her to do babysitting during the week and she was free to go every evening and weekend”.

CA – 0023030 – 007. complaint referred under s.27 of the Organisation of Working Time Act, 1997. The Complainant worked on 30/10/2017 which was a Public Holiday, she did not receive her statutory pay.

It is stated by the Respondent that the Complainant never worked on a Public Holiday and received her full salary every week.

CA – 00023030 – 006 - Terms of Employment (Information) Act, 1994.

Section 3 of this Act states:

3.- 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……

Section 7 (2) (d) of the same Act reads as follows:

A recommendation of a rights commissioner under subsection (1) shall do one or more of the following:

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 4 weeks remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act,1977.

In this instant case it is accepted that no contract or statement of particulars of employment were issued to the employee as prescribed in the Act.

Under Section 7 of this Act I award the Complainant compensation of four weeks’ pay.

CA – 0023030 – 007.

As per the complaint form the Complainant is claiming that she worked on 30/10/2017 and did not receive the statutory payment for same.

Section 27 (4) of the Organisation of Working Time Act, 1997 reads:

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner if it is presented to the commissioner after the expiration of the period of six months beginning on the date of the contravention to which the complaint relates.

This complaint was received by the Workplace Relations Commission on 05/11/2018. This complaint is out of time and therefore is not well found and fails.

CA – 00023030 – 005. - complaint referred under s.6 of the Payment of Wages Act, 1991 – was not paid her notice period of one week.

This complaint relates to the failure of the Respondent to issue the Complainant her statutory notice period. I note it has been referred under section 6 of the Payment of Wages Act, 1991. The correct statute for a complaint of this nature is the Minimum Notice and Terms of Employment.

The Complainant was entitled to one weeks’ notice unless she was dismissed for gross misconduct, this is not the case in this instant case. I therefore award the Complainant one week’s pay.

CA – 00023030 – 004 - Holiday Pay.

The leave year as interpreted by the Organisation of Working Time Act, 1997 means a year beginning on any 1st day of April.

Section 27 (4) reads as follows:

(4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The complaint was submitted to the WRC on 05/11/2018, the relevant 6-month period goes back to 6th May 2018.In relation to annual leave, the relevant leave year is the one commencing on 1st April 2018 and ending on 31st March 2019. The Complainant left her employment on 8th May 2018 therefore we are looking at the period of 1st April 2018 to 8th May 2018, five working weeks.

Holiday entitlement is calculated at the rate of 8% of hours worked.

There appears to be a major disagreement between the parties regarding the duration of the working week. The Respondent has provided a breakdown of the working week as follows:

Monday & Tuesday: 7.00am to 9.30am. I have added 30 minutes onto this to allow for the walk home from the school. 13.15 to 17.30 7 .25 hours x 2 days 14.5 hours.

Wednesday: 10.75 hours

Thursday and Friday: 9.5 hours x 2 = 19 hours.

This adds to a working week of 44.25 hours per week. The Complainant as per the complaint form alleges she worked 41 hours per week. The Respondent appears to be in breach of section 25 of the Organisation of Working Time Act, 1997. For the purpose of holiday entitlement, I am accepting the Complainant’s figure i.e. 41 hours per week.

The period in question is 5 weeks at 41 hours per week = 205 hours x 8% = 16.4 hours at the minimum wage = €9.55 per hour = €156.62.

The Complainant was due the sum of €156.62 at the end of her employment.

Summary.

CA – 00023030 – 004 - Holiday Pay. The Complainant is awarded the sum of €156.62 outstanding holiday pay.

CA – 00023030 – 005. - complaint referred under s.6 of the Payment of Wages Act, 1991 – was not paid her notice period of one week. The Complainant is awarded €391.55 wages for her weeks’ notice.

CA – 00023030 – 006 - Terms of Employment (Information) Act, 1994. The Complainant is awarded four weeks pay as compensation for not receiving a written statement outlining her particulars of employment (breach of section 3). Compensation of €1,566.20 is awarded.

CA – 0023030 – 007. Public holiday entitlement for 30/10/2017 – The complaint is out of time and therefore fails.

The above amounts should be paid to the Complainant within 42 days of the date of this decision.

As outlined above. All payments ordered should be paid to the Complainant within 42 days from the date of this decision.