Complainant

Respondent

Anonymised Parties

An Au Pair

An Employer

Representatives

Karina Jelisejeva Migrants Rights Centre Ireland

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-00024200-001

17/12/2018

The Complainant is a non-national Au Pair who worked for the employer from 29th August 2017 to 8th May 2018. She was 18 years of age. She previously made complaints against the Respondent and a Decision was made in ADJ-00017870.

The Complainant complains of a breach of S23 of the National Minimum Wage Act 2000. There was a delay lodging this complaint by the Complainant due to the requirement to request the Respondent to provide a written statement of the Complainant’s average hourly rate of pay. The request was made on 2nd November 2018. No response was received from the Respondent. This letter was stuck in the post office and was only returned to the Complainant’s representative after 4 weeks. The Complainant seeks an extension of time to pursue her complaint.

The Complainant says she worked 41 hours per week and received 100 euro per week. She received board and lodgings at a rate of 54.13 euro per week up to 31 December 2017. The rates from 1 January 2018 are 22.65 per week for lodgings and 0.85 euro per hour for board. Her hours were from 7am to 9.30 am (dropping children to school for 9 and return), 12.45 to 5.30pm (travel and pick up from school at 1.45 pm) 5 days per week. On Wednesdays she worked 10.75 hours as the Respondent attended classes. She also carried out housework on Thursday or Friday in addition.

She carried out additional babysitting for 5 hours on 5 Saturdays, from 7.30 am to 5.30 pm for 1 week mid-term, 1 overnight from 7pm to 1pm following day. On 9th April she minded a child from 7am to 10.30pm and on 10th April from 7am to 8pm. She did not receive any additional pay for this work.

She was not aware of her rights under employment law. She is a young non-national who came to Ireland to learn English. She turned 19 years on 6th December 2017.

She seeks 5,931.32 euro arrears of wages based on unpaid minimum wage due.

The Respondent has already discharged payment in relation to the decision made in CA-00023030. This was paid on the understanding this included all issues. This would have been challenged if the Respondent had known there would be more claims.

The complaint is out of time as it has been submitted over 6 months after the end of the employment on 8th May 2018.

There was no cooking for the children at lunchtime. The Complainant worked 5 hours a day 5 days a week 25 hours per week. 7.30am to 9 am, 1.45pm to 5 pm. Once or twice if the children were sick, the Complainant did work additional hours. She does not accept there was extra babysitting till 8pm. Once or twice the Complainant was asked to watch the children while the Respondent’s husband was on the way home. The Respondent accepts the Complainant worked until 10.30pm on 9th April but not on 10th April.

The Complainant’s claim is made pursuant to S24 of the National Minimum Wage Act 2000. She is an employee within the meaning of the Act.

The Complainant is a non-national with a poor grasp of English when she came to work as an Au Pair. She was unaware of her legal rights, and only became aware of these as her understanding of the English language improved. This complaint should have been made within 6 months of the termination of her employment on 8th May 2018. The Complainant’s first set of complaints were made within the statutory 6 month period.

The established test for deciding if an extension of time should be granted for reasonable cause is set out in the Labour Court determination DWT0338 Cementation Skanska v Carroll.

“It is the Courts view that in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard but it must be applied to the facts and circumstances known to the Claimant at the material time. The Claimant’s failure to present the claim with the six-month time-limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a sight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the Respondent

The delay in lodging the complaint was short, and was due to the obligation to request a written statement of average hourly pay prior to making the complaint under the Act. In the circumstances, I find the Complainant has shown reasonable cause in order to allow an extension of time for her complaint.

The Complainant did not receive any response to her request for a written statement of average hourly pay.

The onus is on an employer to keep records of an employee’s hours of work pursuant to S25 of the Organisation of Working Time Act 1997 and s22 (3) of the National Minimum Wage Act 2000. In Nolan Transport v Antanas DWT 17/2011 [ 2011 ELR 311] the Labour Court said that a “rebuttable presumption of non-compliance arose.” No records of hours have been produced by the Respondent to evidence the hours worked.

I find the complaint is well founded and direct payment of 5,931.32 euro arrears of wages by the Respondent to the Complainant.

I find the complaint is well founded and direct payment of 5,931.32 euro arrears of wages by the Respondent to the Complainant.

Onus on employer to produce records, evidence of hours, au pair