ADJ-00025536

Complainant

Respondent

Anonymised Parties

A Childminder

Parents

Representatives

Leáh Smith Leáh Smith

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-00032450-001

24/11/2019

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

CA-00032450-002

24/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00032450-003

24/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00032450-004

24/11/2019

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

CA-00032450-005

24/11/2019

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

CA-00032450-006

24/11/2019

The Complainant was employed as Childminder for the Respondent’s children from 24 July 2018 until her employment ended on 4th June 2019. She was paid €11.00 per hour and worked 38 hours per week over 3.5 days per week. The Respondent is one of a couple with children, his partner is referred to as Ms X below. In a preliminary way, I am satisfied a Contract of Employment existed between the parties such that a wage defined by the 1991 Act was payable to the Employee by the Employer in connection with the employment. The relationship was subject to the Code of Practice for Protecting Persons Employed in Other People’s Homes (2017).

The Complainant submits that she worked from 7.00am to 6.00pm (11 hours), Mondays, Tuesdays and Thursdays and 9.00am to 2.00pm (5 hours) on Wednesdays and that during her workday she consistently had to mind one or both of the children at all times and therefore did not receive any of her break entitlements under section 12 of the 1997 Act. In direct evidence the Complainant stated that she never got a break and that the younger child did not take naps as stated by the Respondent.

The Respondent submits that the Complainant’s terms and conditions of employment were well above the norm for childminding. Regarding actual breaks the Respondent cited the Code of Practice on Compensatory Rest Periods and Stasaitis v Noonan Services Group Ltd [2014] IEHC 199. The Respondent submits that it was not feasible for him to employ a second nanny whose sole responsibility was to relieve the Complainant of her supervisory duties. However, the Respondent fully expected the Complainant to take breaks from her daily activities and interacting with the children during the day. One of the instructions given to the Complainant was to have the TV on for one hour a day which the Respondent contends gave her down time. The Complainant had access to the home Wi-Fi and full use of the kitchen facilities. The Complainant’s duties excluded household chores like laundry and cleaning, nor did she have to cook the children’s dinners. The Respondent regularly reminded the Complainant that she needn’t feel she should occupy the children all day long, that she should let them play together so she could have a cup of tea or do whatever she wanted, which the Respondent submits the Complainant agreed was her approach. In direct evidence, the Respondent pointed out that the eldest child was in school from 8.10am to 1.00pm and that the younger child took naps.

Section 12 of the 1997 Act states:

Rests and intervals at work.

12.— (1) An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(3) The Minister may by regulations provide, as respects a specified class or classes of employee, that the minimum duration of the break to be allowed to such an employee under subsection (2) shall be more than 30 minutes (but not more than 1 hour).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).

The Code of Practice on Compensatory Rest Periods states:

Appropriate Protection

1.       If for reasons that can be objectively justified, it is not possible for an employer to ensure that an employee has available to himself or herself the equivalent rest period or break set out in section 6(2) of the 1997 Act, the employer must make such arrangements as respects the employee’s conditions of employment as will compensate the employee. While neither “arrangements as respects the employee’s conditions of employment as will compensate the employee” nor “appropriate protection” are defined in, respectively, the Act and the Directive the Act specifies that these concepts do not include:

i) the granting of monetary compensation to the employee, or

ii) the provision of any other material benefit to the employee, other than the provision of such a benefit as will improve the physical conditions under which the employee works or the amenities or services available to the employee while he or she is at work.

A common-sense approach should be adopted by employers and employees in such situations which takes account of the circumstances existing in the employment and has regard to the safety, health and wellbeing of employees. It would be desirable that employers and employees and/or their representatives agree appropriate protection measures as respects an employee’s conditions of employment. While it is not feasible to define such appropriate protection/conditions of employment measures, the concept might include measures which provide for, in addition to normal health and safety requirements:

i) enhanced environmental conditions to accommodate regular long periods of attendance at work,

ii) refreshment facilities, recreational and reading material

ii) appropriate facilities/amenities such as television, radio and music

iv) alleviating monotonous work or isolation

v) transport to and from work where appropriate.

In Stasaitis v Noonan Services Group Ltd [2014] IEHC 199, the issue of compensatory rest periods was considered by the High Court. The case concerned a security guard who is required to remain in a security hut for the duration of his eight hour shifts without any scheduled rest breaks. He was allowed to take as many breaks as he wanted during periods of inactivity and it was accepted that there were such periods during his shift. He was provided with kitchen facilities and an area in the hut to take such breaks. The court held that the requirement to provide compensatory rest periods had been complied with. Kearns P referred to the fact that kitchen facilities were provided and an area where breaks could be taken as the security man wanted during periods of inactivity. The Court did not accept the argument that employee had not received compensatory breaks as his employer had not specified fix breaks during his shift commenting that brakes of a fixed duration could have the effect of reducing the employees’ periods of actual rest period. Taking all of the above into consideration, I am satisfied that the Complainant had time when she was not supervising the children when she could have taken her breaks; for instance, when they were watching television. In many ways it was up to the Complainant to create the circumstances where she could take her breaks undisturbed by the children.

The complaint is not well founded.

The Complainant submits that she never received a written statement of her terms and conditions of employment, which she submits had a considerable impact on her understanding of her rights upon the termination of her employment.

The Respondent submits that the Complainant was given spreadsheets which although silent on some details was equivalent to and served the purpose of a statement of terms and conditions of employment. The Respondent stated that any omissions were of no consequence and did not cause a detriment to the Complainant.

The Employment (Miscellaneous Provisions) Act, 2018, requires an employer to provide the following core terms to an employee in a written statement within five days from his/her start date:

1. Full names of the employer and employee;
2. Address of the employer;
3. Where the contract is temporary, the duration of the contract or if it is for a fixed term, the date on which the contract expires;
4. The rate or method of calculation of the employee's remuneration and pay reference period; and
5. The number of hours per day and per week which the employer reasonably expects the employee to work.

This requirement is in addition to the obligation to provide an employee with a written statement of terms of employment within two months of his/her start date as per the 1994 Act.  Sec 3 (1) of the 1994 Act sates: “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” I note that Sec 7 (2) (d) of the Act states, “compensation of such an amount (if any) as is just and equitable having regard to all the circumstances but not exceeding 4 weeks remuneration”. The Respondent provided two spreadsheets at the hearing, which he submits, were given to the Complainant at the outset of her employment. Between the two spreadsheet the following terms were covered; duties; hours of work; rate and method of pay; annual leave (including Public Holidays). Having compared the terms covered in the spreadsheets and the requirements of the 1994 Act I am satisfied that although these documents cover several elements of those required, they do not equate to a proper statement as required by the Act.

The complaint is well founded. I order the Respondent to pay the Complainant compensation of €418.00.

The Complainant submits that she was dismissed without the utilisation of fair procedures. The Complainant submits that throughout her employment she was subjected to several unacceptable and inappropriate situations. The Complainant referenced a number of occasions when she was treated in an aggressive manner by the Respondent’s partner, Ms X which made her feel unsafe in her workplace. One such incident took place the afternoon the couple had returned from a foreign holiday. Later the same week the Complainant submits that Ms X verbally abused the Complainant. The Complainant submits that the bullying continued on and off following the above incident, with the final incident before the Complainant’s dismissal occurring over a two-week period up to 4th June 2019. These problems originated from when the Complainant reported to the Respondent that she had found the house cleaner’s key in the front door lock. On returning the key to the cleaner the Complainant was met with a very rude and abrupt response. Later, because of her unease at the cleaner’s response to her, the Complainant checked with Ms X if everything was okay.   In reply, the Complainant submits that Ms X said she could understand why the cleaner would act as she did as the Complainant had “ratted her out”. The Complainant was shocked and appalled that her employer could imply such a thing and left her workplace in tears that evening. On returning to work on 27th May 2019, the Complainant submits that Ms X began to shout at her in relation to the key incident. Despite trying to explain her rational for reporting the incident there was no change in Ms X’s aggressive manner. The following day, the Complainant attended work as normal. When the Respondent and his partner arrived home from work that evening, they informed the Complainant that she was being “let go” as and from September as Ms X was leaving her own job. That evening the Complainant received a text message from the Respondent telling the Complainant that she was going to be made redundant from the end of September. The Respondent also asked the Complainant to meet with him on Thursday 30th May 2019 in relation to the matter. The Respondent assured the Complainant that Ms X would not be present at the meeting. The Complainant submits that she was then shocked when the Respondent and Ms X both attended the meeting. The Complainant submits that during this meeting Ms X amplified her threatening tone and outlined that if the Complainant left during the discussion that she would not pay her. However, the Complainant submits that for her own safety she left the house, Ms X slamming the door after her. The Complainant submits that the following day she received a call from the Respondent, in which she maintains he said he could understand how she, the Complainant, would feel intimidated by Ms X’s behaviour. The Complainant agreed to meet with the couple again. The Complainant returned to work as scheduled on 4th June 2019. That evening the Respondent and Ms X returned early from work. The Complainant was informed that her contract was being terminated with one month’s notice. Later that evening, the Complainant received an email confirming the situation. The Complainant submits that at no stage was she granted permission to exercise her rights of natural justice, nor was she afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures (S.I. No. 146 of 2000). In direct evidence the Complainant stated that she did stop talking to Ms X because of the way arguments had gone before. In conclusion, the Complainant submits that she was not afforded her rights under natural justice and fair procedures which are commonly known as two of the most important implied terms and conditions of employment.

The Respondent submits that that the Complainant was good at engaging with the children, however difficulties arose when she was given feedback or instructions. The Respondent believes that she had an issue accepting Ms X’s authority. The Respondent cited several incidents during the Complainant’s employment which support his contention that the Complainant could not take instruction.   Regarding the incident when the Respondent’s arrived home from a 3-night break, the Respondent submits that there had been a miscommunication about what time they, the couple, would be returning home and he believes the Complainant was annoyed about this; she was in a bad mood and snapped at Ms X. Following this the couple and the Complainant had a meeting to discuss issue, which the Respondent believed had been beneficial. Regarding the events that culminated in the Complainant’s dismissal, the Respondent submits that, in many ways these stemmed from the incident in which the house cleaner left her key in the door which was reported by the Complainant to the Respondent. This event triggered a number of discussions in which the Respondent alleges the Complainant was rude and abrupt in her demeanour. Ms X had a heated discussion with the Complainant on Thursday 23rd May, which culminated in the Respondent coming to the view that the Complainant’s honesty and integrity were questionable and that from that time on the Complainant was hostile towards Ms X. On Monday 27th May 2019, the Respondent submits that another heated exchange took place between Ms X and the Compliant. The Respondent strongly denies the accusation made by the Complainant of bullying, abuse or aggression.   Following the meeting with the Complainant the Respondent couple decided that Ms X would give up her job in September to focus on family matters. The following evening, Tuesday 28th May 2019, the couple met with the Complainant and told her that they were going to make her redundant. The Complainant got very emotional and left the house. The Respondent denies that what transpired at this meeting could in any way be construed as bullying, as alleged by the Complainant. Another meeting between the parties took place on Thursday 30th May 2019, at which the Respondent submits the Complainant blanked Ms X. Some communication did take place between the Respondent and the Complainant following this meeting. However, the Respondent had come to the view that the relationship with the Complainant had broken down to such an extent that it was irreparable, and the best option would be to dismiss the Complainant, with one month’s notice payment. On the evening of 4th June 2019, the Respondent informed the Complainant of his decision to dismiss her; this seemed to be accepted by the Complainant.   The Complainant requested written notice of her dismissal which was subsequently sent to her. The following day, the Complainant did not attend work telling the Respondent she was sick. The Respondent decided that this signalled the Complainant’s intention of not ever returning to work. The Respondent paid the Complainant her final week’s pay although she did not attend work. In direct evidence at the hearing Ms X stated that it was the Complainant’s refusal to interact with her that lead to the dismissal. The Respondent stated that he had attempted to de-escalate the difficulties many times.

This unfortunate story indicates that there were faults on both sides. However, as an employer the Respondent has duties and responsibilities towards those who work for him. The Code of Practice for Protecting Persons Employed in Other People's Homes states that domestic workers have the same employment rights and protections as any other employee under Irish law and the employer must inform these employees of their rights. In this instance the Respondent did not fulfil his responsibilities as he should have done. The Respondent agrees that he dismissed the Complainant. Although some discussions had taken place between the parties regarding the Complainant’s behaviour and the Respondent’s concerns about the interactions between them, at no time did the Respondent make it clear that there were issues that if not rectified could lead to the Complainant being dismissed. The claim of Unfair Dismissal here is under the Industrial Relations Act, 1969 as it cannot come under the Unfair Dismissal Act, 1977 due to the short service of the Complainant. However, this does not mean that the guiding legal principles of Natural Justice do not apply. A landmark case is Frizelle v New Ross Credit Union Ltd, [1997] IEHC where Flood J. stated that: “The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee. Put very simply, principles of natural justice must be unequivocally applied.” Furthermore, legal instrument SI 146 of 2000 – Code of Practice on Grievance and Disciplinary procedures (declaration Order) 2000 Industrial Relations Act, 2000 applies. This S.I. essentially codifies the Rules of Natural Justice. In this case, the rules of Natural Justice were not applied in any manner or means. There was no investigation into the matters at hand. The Complainant was dismissed without warning, she was not given an opportunity to defend her position and was not afforded the right of representation. There was no right of appeal.   The sanction of dismissal was disproportionate, and it does not seem any other sanction was considered. On a legal basis and put simply, not having twelve months’ service and being on probation, does not mean that all employment rights based in Natural Justice go “out the window” so to speak. Having reviewed and considered all the evidence both written and oral I came to the view that this was an Unfair Dismissal.

I find that the dispute referred by the complainant pursuant to the Industrial Relations Act is well-founded and the respondent shall pay redress to the Complainant of €2,508.  

The Complainant submits that she was never given a copy of bullying and/or harassment procedures by my employer at any stage during her employment. When she raised a grievance with the Respondent to advise that I was being bullied, her employment was terminated. The Complainant submits that the Respondent’s aggressive behaviour towards her for the last few months of her employment and especially the days leading up to her termination undermined her dignity at work.

The Respondent submits that the Complainant was dismissed for refusing to engage with the Respondent. Despite several attempts to resolve the conflict the Complainant refused to engage with the Respondent. At the hearing the Respondent stated that he did not have a Dignity at Work Policy but had wanted to be fair to the Complainant as far as he could.

The Respondent did not provide a Dignity at Work or Bullying and Harassment Policy for the Complainant.

I find that the dispute referred by the complainant pursuant to the Industrial Relations Act is well-founded and the respondent shall pay redress to the Complainant of €100.00.  

The Complainant submits that it had been agreed with the Respondent that they would agree in advance what holidays she was to take each year, and that she would receive full pay for those weeks (5 weeks). It was also agreed that she would receive full pay for 2 weeks at Christmas, Easter and Bank Holidays. However, in her final payslip she did not receive the correct payment in lieu of her accrued and outstanding annual leave. The Complainant submits that as she did not work a full year for the Respondent before being terminated her pro-rata entitlement was 15.82 days from 16th July 2018 to 4th June 2019. Plus 4 weeks’ pay (2 weeks for Christmas and 2 weeks for Easter). As the Complainant took 11.5 days annual leave during her employment, she was therefore entitled to payment of 4.32 days plus 4 weeks (14 days) which equates to 18.32 days in total.

The Respondent submits that the payment of €980.00 made to the Complainant on 20 June 2019, following her dismissal, covered any outstanding holiday pay.

It should be noted that firstly, as this claim was received by the WRC on 24th November 2019 it is therefore limited to the six-month period from 25 May 2019 to 24th November 2019. Secondly, that the Complainant can only claim her statutory OWT Act entitlement to annual leave, and not any higher entitlement under the contract of employment. Thirdly, the relevant year under the OWT Act commences on 1st April. As the Complainant had only worked 2 months and 3 days of the relevant year and had taken 1.5 days leave (23rd and 24th April) the payment of €980.00 made by the Respondent more than covers any outstanding holiday pay.

The complaint is not well founded.

The Complainant submits that her terms and conditions of employment is silent on any notice provisions which is in breach of the 1973 Act. The Complainant submits that she was verbally dismissed from her employment on 4th June 2019 and advised that she would be entitled to the “normal” one month’s notice of same. Although, due to the actions of her employer, she went out on sick leave and then the Respondent decided to reduce her notice period to one week (which was paid in lieu) which was contrary to the initial notice period provided. The Complainant seeks three weeks’ notice payment.

The Respondent submits that the Complainant was paid in lieu of notice.

Section 4 of the 1973 Act states;

Minimum period of notice.

4.— (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,

The Complainant did receive one week’s pay in lieu of notice and therefore has received her entitlement under the Act.

The complaint is not well founded.

Domestic setting, childminder, policies & procedures, annual leave, rest breaks,