ADJ-00023641

Complainant

Respondent

Anonymised Parties

Caretaker

Property Manager

Representatives

Sarah Kearney BL instructed by Cristina Stamatescu Cristina Stamatescu Solicitors

Self

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030256-001

14/08/2019

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

CA-00030256-002

14/08/2019

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

CA-00030256-003

14/08/2019

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

CA-00030256-004

14/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 27 of the Paternity Leave and Benefit Act, 2016

CA-00030256-005

14/08/2019

The complainant worked as a night-time live-in caretaker at a property that provides emergency accommodation for homeless people. He commenced work on 02 November 2018 and ceased work on 04 April 2019. Five complaints were received by the Workplace Relations Commission on 14 August 2019.   The complainant claims he did not receive his statutory entitlements to pay, hours of work / breaks, leave, terms and conditions of employment information and paternity leave.

CA-00030256-001 - Complaint that the complainant received no payment for his work.

CA-00030256-002 - Complaint that the complainant did not receive his minimum rest periods and/or leave periods.

CA-00030256-003 – Complaint that the complainant was required to work more than the maximum permitted number of hours.

CA-00030256-004 – Complaint that the complainant did not receive a statement in writing of his terms and conditions of employment.

CA-00030256-005 – Complaint that the complainant did not receive paternity leave.

The above complaints were heard together with complaints made by the complainant’s wife as her complaints arise from the same factual matters. (ADJ00023526)

The complainant, when residing in Romania with his wife, was put in contact with the respondent through a friend. His wife spoke with the respondent once by phone and subsequently received an e-mail from him dated 23 October 2018.

The respondent’s e-mail stated that the role available for the complainant and his wife was as follows: “For now, this role would provide accommodation only – therefore no rent for you to pay and all electricity etc paid for and the apartment has been renovated just one month ago.

Both of you will need to get Garda (police) clearance as we have single females and children here and therefore all workers must be cleared. I will arrange this if we proceed.

The work involved is straightforward:

Each night some doors must be locked & re-opened in the morning.

Be aware of fire regulations and the importance of this issue

Keep records of any incidents – such as problems with tenants etc

Help tenants if (for example) they have forgotten keys to their unit

Post is delivered to each unit if required

All common areas must be kept clear for safety reasons and must also be cleaned if & when required

Allow access if required by maintenance workers etc

I will contact you later in the week but if you are confident you will be here next week I will do my best to hold this position for you – the Dublin City Council (who rent the houses from the owner) insist on someone being here 24/7 and therefore I need reliable people who work well with others and can avoid conflict.

If you have any questions, let me know.

Also, if you send me on your flight details I will look into if I can arrange for you to be brought out here.”

The complainant and his wife accepted this offer and commenced working on 02 November 2018.   After they commenced working the complainant was allocated additional duties by the respondent. The additional duties included checking in guests and as building works were being carried out granting access to tradesmen, at times without any or any adequate notice. The duties required the complainant to remain at the property throughout the night and be present throughout his shift at the CCTV monitoring room. The complainant’s shift was scheduled from 11.30pm to 9.00am Monday to Sunday.

As the complainant was not receiving payment for his work as a night-time caretaker he sought additional work elsewhere. He succeeded in obtaining work commencing on 19 November 2018. His hours of work in the new post varied but usually commenced at either 3.00pm or 4.30pm and continued to 11.00pm or 11.30 pm Monday to Friday.

A breakdown in communications between the parties occurred on an unspecified date in January 2019.   The complainant’s wife found this incident very upsetting and they understood that the respondent was threatening to put them out of the accommodation. The complainant sent a message to the respondent asking him not to shout at them again. Despite the upset and distress caused by this incident the complainant and his wife continued with their duties.

The complainant’s wife gave birth to their daughter on 04 February 2019 and returned to work the following day.

A meeting took place on 12 March 2019 between the complainant, his wife and the respondent.   The meeting was also attended by the owner of the property. At the meeting the complainant and his wife raised their grievances. During his employment the complainant’s wife had raised the fact that no remuneration and / or written contract or payslips were provided to the complainant. There was no satisfactory outcome to the meeting.   Later that day the complainant and his wife sent an e-mail to the respondent to advise him that they did not want to do this work anymore.

On 14 March 2019 the respondent e-mailed the complainant his account of the meeting of 12 March. He noted that the complainant had not received Garda vetting clearance. The complainant refuted this assertion.

By way of Notice to Quit dated 28 March 2019 the respondent requested the complainant to leave the property. The complainant’s employment ceased on 04 April 2019 when the complainant vacated the property. He and his family then became homeless for a period.

The complainant was not paid for his work, did not receive his statutory entitlements to rest periods, annual leave or paternity leave.

The respondent represented himself at the hearing. He was invited to provide a copy of his submission and he did so by e-mail of 18 October 2019. The complainant’s solicitor was provided with a copy of the respondent’s submission.

The respondent’s submission states that the complainant was not an employee and has no entitlements under the Payment of Wages Act, 1991, the Terms of Employment (Information) Act 1994, the Organisation of Working Time Act 1997, the Maternity Protection Act or the Parental Leave Act.

The respondent submitted that it was never his intention to enter into an employer/employee relationship. The complainant’s wife spoke with the respondent on one occasion. The complainant’s wife asked if the respondent would give her and her husband the opportunity to come to Ireland to find work.   Having free accommodation and utilities would suit them as they both intended to seek work. This also suited the respondent as it meant that he would have some time off over the holiday period. The respondent submitted that It is not credible that on the strength of one phone call and one e-mail that he was offering two paid jobs.

The premises have been leased for 15 years and it was the practice to have a live-in caretaker i.e. a caretaker who sleeps there at night. At no stage was the caretaker required to be awake all night looking at CCTV.   The complainant was not required to monitor the CCTV throughout the night.

Garda vetting is mandatory. An application was submitted but the complainant and his wife did not follow up within the 30-day time limit. The application was re-submitted but again the complainant and his wife failed to follow up to complete the vetting process. The relationship between the complainant and the respondent broke down due to the refusal to complete the vetting process. It was the respondent’s duty to protect the residents and Garda vetting was a critical element.

The relationship between the complainant and the respondent broke down in mid / late February 2019. The complainant and his wife were offered a house, rent free, for three months but they refused this offer. The respondent asked the complainant and his wife to leave the property on several occasions, but they refused. A notice to quit was issued on 28 March 2019 and the complainant and his wife left on 04 April 2019.

The respondent submits that it was never his intention to enter into any employee/employer relationship and that he did not have the authority to employ anyone. He further submits that neither the complainant or her husband completed the mandatory vetting process.

CA-00030256-001 – Complaint under Section 6 of the Payment of Wages Act, 1991

The complainant sought redress in respect of Section 5 of the Payment of Wages Act, 1991 on the basis that no remuneration was received by him for the period of his employment. I have jurisdiction to investigate a complaint under the Payment of Wages Act, 1991 for a period of six months from the date of referral of the complaint.   The complaint was referred to the Workplace Relations Commission on 14 August 2019. Therefore, the cognisable period is 15 February 2019 to 14 August 2019.

In circumstances where the respondent denies that the complainant was an employee I must decide if an employment relationship existed.

The Payment of Wages Act, 1991, Section 1 (1) defines a contract of employment as

“(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;”

How it is established if an employment relationship exists has evolved and various tests have been used by the courts. In Minister for Agriculture and Food v Barry & Others [2009] 1 IR 215 the High Court made it clear that all the tests may assist in identifying the nature of the working relationship, but no single test is definitive. The Supreme Court affirmed this approach in a later appeal in Barry & Others v Minister for Agriculture and Food [2015] IESC 63 Charleton J “It is correct to note, however, as was noted by Edwards J, that there is no universal test whereby it may be said that if a particular indication is met or not met that a person is employed or not.”

There must be a mutual obligation between employer and employee where there is an obligation on the employer to give the employee work and an obligation on the employee to carry out the work for the employer.   In this case the respondent required that the complainant carry out duties as a night-time live-in caretaker and he carried out his assigned duties.

The caretaker duties were specified by the respondent in his email of 23 October 2018. When the complainant took up his role he was given a list of duties and contact numbers that would be useful in carrying out his duties. The respondent gave instructions about the duties to be performed. The degree of control operated by the respondent and requirement for the complainant to personally provide the service as caretaker are both relevant in establishing if an employment relationship existed. Both these issues were held to be relevant factors for consideration in Henry Denny & Sons (Ireland) v Minister for Social Welfare [1998] 1 IR 34. The complainant had to perform the duties as instructed by the respondent.

The complainant’s submission relied on the principles set out in Re Sunday Tribune [1984] IR 505 where to determine the existence of an employment relationship Carroll J stated:” The court must look at the realities of the situation in order to determine whether the relationship of employer and employee in fact exists regardless of how the parties describe themselves.” The complainant’s submission further relied on decisions in Young and Woods Ltd v West [1980] IRLR 201 and Readymix Concrete v Minister for Pensions [1968] 1 All E.R. 433 to establish that an employer/employee relationship existed between the complainant and the respondent.

Based on the submissions of the parties and the evidence at the hearing I am satisfied that the complainant was required to carry out duties as a caretaker, that those duties were specified in writing in the e-mail of 23 October 2018 and in the list of duties given to him when he took up the post and by the instructions given by the respondent.

I note that in a document dated 07 November 2018 the respondent stated the following: “I further confirm that the above named (complainant) is acting as night time care-taker and in return received no remuneration but does receive rent free accommodation.”

I also note that the Notice to Quit, dated 28 March 2019, states: “Given no Garda vetting that was mandatory and no desire to do the job they applied for, then cannot stay as they have not fulfilled the legal criteria.”

The respondent stated at the hearing and in his written submission “having free accommodation and utilities was perfect for them (the complainants’) and it also suited (the respondent) as he would have some time off over the holiday period.”

These documents support a finding that the complainant was an employee.

Having heard the evidence of both parties and considered the documents and submissions I am satisfied that an employment relationship existed between the complainant and the respondent. This is a complaint pursuant to the Payment of Wages Act. The complaint was referred to the Workplace Relations Commission on 14 August 2019.   The six-month cognisable period is therefore 15 February 2019 to 14 August 2019. I find the respondent did not pay the complainant wages for the work performed by him during the cognisable period 15 February 2019 to 04 April 2019. I find that the complaint is well founded.

The complainant is entitled to receive the wages properly payable to him for the work carried out by him between 15 February 2019 and 04 April 2019. The complainant submitted calculations based on 9.5 working hours per day Monday to Sunday. In his submission the complainant claims he was to be present in the CCTV room throughout his shift. The respondent disputes that the complainant was required to do so.  While there may have been times during the night when the complainant was not engaged in undertaking tasks associated with his employment, his physical presence at his place of employment and his availability for work meant that such periods must be regarded as part of his working time.

The complaint worked 9.5 hours per night, seven nights per week for the seven weeks of the cognisable period from 15 February 2019 to 04 April 2019. The relevant National Minimum Wage was €9.80 per hour. The complainant is due €4561.90 less €162.05 (€23.15 x 7) for accommodation as provided for in the Minimum Wage (Low Pay Commission) Act, 2015 (S.I. 402/2018)

CA-00030256-002 – Complaint under Section 27 of the Organisation of Working Time Act, 1997 that the complainant did not receive his minimum rest periods and/or leave entitlements.

The complainant submitted that during his employment no provision was made for breaks, public holidays or leave. The respondent stated in his submission that the complainant was not an employee and had no entitlements under the Organisation of Working Time Act.   The respondent did not produce records of time worked, breaks or leave. As set out above I am satisfied that the complainant was an employee working as a caretaker. I am satisfied that the respondent did not make arrangements for breaks, rest periods, annual leave or public holidays for the complainant in breach of Section 11 (Daily Rest Period), Section 12 (Rest and Intervals at work), Section 13 (Weekly Rest Periods), Section 19 (Entitlement to annual leave), Section 21 (Entitlement in respect of public holidays). The complainant did not receive compensation for working on Sunday in breach of Section 14 of the Act.

The respondent did not dispute the claim that no payment was made to the complainant for annual leave or public holidays.

The entitlement to annual leave is provided in Section 19 of the Act as follows:

19.— (1) Subject to the First Schedule (which contains transitional provisions in

           respect of the leave years 1996 to 1998), an employee shall be entitled to paid

           annual leave (in this Act referred to as “annual leave”) equal to—

         (a) 4 working weeks in a leave year in which he or she works at least 1,365 hours

         (unless it is a leave year in which he or she changes employment),

         (b) one-third of a working week for each month in the leave year in which he or

           she works at least 117 hours, or

         (c) 8 per cent. of the hours he or she works in a leave year (but subject to a

           maximum of 4 working weeks):

         Provided that if more than one of the preceding paragraphs is applicable in the case

         concerned and the period of annual leave of the employee, determined in accordance

         with each of those paragraphs, is not identical, the annual leave to which the

         employee shall be entitled shall be equal to whichever of those periods is the greater.

The statutory annual leave year runs from 01 April to 31 March. The time limit to bring a claim in respect of annual leave was considered by Lavan J in Royal Liver Assurance Limited v Macken [2002] 4 IR 428. The claim may be brought within six months of the last day of the leave year or during the leave year. This claim was received by the Workplace Relations Commission on 14 August 2019 therefore it is in respect of the full period of employment 02 November 2018 to 04 April 2019. In the same judgement Lavan J held that claims in respect of public holidays must be brought within six months of the date of the public holiday.

I find that the complainant is entitled to payment for annual leave calculated at 8% of the hours worked from 02 November 2018 to 04 April 2019 inclusive. The minimum wage rate applicable from 02 November 2018 to 31 December 2018 was €9.55 per hour and from 01 January 2019 to 04 April 2019 was €9.80 per hour. The payment due for annual leave at 8% of hours worked is therefore €1120. 88.

There was one public holiday in the cognisable period that was Sunday 17 March 2019 for which the complainant did not receive compensation. The complainant is entitled to payment of one day in respect of the public holiday. He normally worked 9.5 hours on a Sunday so the payment due is €93.10.

I find that the complaint is well founded and that the respondent was in breach of Sections 11,12,13,14,19,21 and 23 of the Organisation of Working Time Act, 1991.   In considering the appropriate compensation for these breaches I note the finding of the Labour Court in O’Malley v LiachaviciusDWT074 (14 March 2007) in relation to the computation of compensation for failure to provide annual leave in accordance with the Act. The Court relied on an earlier decision in Cementation Skanska (Formerly Kavaerner Cementation) v Carroll WTC0338 (28 October 2003) quoting:

“The obligation to provide annual leave is imposed for health and safety reasons and the right to leave has been characterised as a fundamental social right in European law (see comments of Advocate General Tizzano in R v Secretary of State for Trade and Industry, ex parte Broadcasting, Entertainment Cinematography and Theatre Union [2001] I.R.L.R. 599 which were quoted with approval by Lavan J in the Royal Liver case). In Von Colson and Kamann v Land Nordrhein – Westfalen [1984] E.C.R. 1891 the ECJ has made it clear that where such a right is infringed the judicial redress provided should not only compensate for economic loss sustained but must provide a real deterrent against future infractions.

In the Court’s view similar considerations apply in computing compensation for contraventions of ss.12 and 15 of the Act.”

Having regard to all the circumstances I believe it is just and equitable to award the complainant compensation as follows:

Breach of Section 14 Sunday premium – I find that the complainant should receive a premium of time plus one third for working on Sunday. The complainant worked 7 Sundays in the cognisable period each of 9.5 hours. The complainant is due €217.23 in respect of outstanding Sunday premium payments.

Breach of Section 19 Annual Leave – As set out above the complainant is due payment for annual leave in the amount of €1120.88.

Breach of Section 21 Public Holiday – As set out above the complainant is due payment for the public holiday on 17 March 2019 in the amount of €93.10.

Breaches of Sections 11,12,13 and 23 – I award compensation of €2500.00.

CA-00030256-003 – Complaint under Section 27 of the Organisation of Working Time Act, 1997 that the complainant was required to work more than the maximum permitted number of hours.   The complainant submitted in his claim that he was required to work 9.5 hours per night seven nights per week. In his submission the complainant claims he was to be present in the CCTV room throughout his shift. The respondent disputes that the complainant was required to do so.     While there may have been times during the night when the complainant was not engaged in undertaking tasks associated with his employment, his physical presence at his place of employment and his availability for work meant that such periods must be regarded as part of his working time. Based on the evidence and submissions I am satisfied that the complainant was required to work and be available for hours in excess of the maximum permitted.   This was a breach of Section 15 of the Act. I award the complainant compensation for this breach of €1000.00

CA – 00030256-004 – Complaint under Section 7 of the Terms of Employment (Information) Act, 1994.

The complainant received an e-mail on 23 October 2018 with a list of duties and he received a list of other duties when he took up his post. He submitted that he did not receive a statement in writing of terms and conditions that complied with the requirements of the Terms of Employment (Information) Act. The respondent submitted that the complainant had no entitlement under the said act. As set out above I am satisfied that the complainant was an employee.   Therefore, he should have been provided with a statement as provided for in the Act. The claim is well founded. I note the decision of the Labour Court in the case of Megan Hayes Kelly and Beechfield Private Homecare, DWT1919 where the Court awarded the maximum of four weeks’ pay in redress in circumstances where there were errors and omissions in the statement.   Failure to issue a statement as required by the legislation must be more serious than the issue of a defective statement so I award the maximum of four week’s pay.

CA-00030256-005 - Complaint under Section 27 of the Paternity Leave and Benefit Act, 2016

The complainant submitted that he was not provided with paternity leave following the birth of his daughter on 4th February 2019. The Paternity Leave and Benefit Act 2016 provides at Section 7:

“(1) Subject to this section and sections 9, 13(2) and 14(2), entitlement to paternity leave shall be subject to an employee who is a relevant parent in relation to a child having notified in writing and in accordance with subsection (2) or (5) his or her employer (or caused his or her employer to be so notified) of his or her intention to take paternity leave”

The complainant in evidence confirmed that he did not give notice in writing to the respondent that he intended to avail himself of paternity leave. The complainant did not comply with Section 7 of the Act.

I find that the complaint is not well founded.

CA-00030256-001- Complaint under Section 6 of the Payment of Wages Act, 1991

I find that the complaint is well founded. I direct the respondent to pay to the complainant €4399.85.

CA-00030256-002- Complaint under Section 27 of the Organisation of Working Time Act, 1997

I find the complaint is well founded. I award the complainant compensation of €3931.21 inclusive of €217.23 Sunday premium, €1120.88 annual leave payment, and €93.10 public holiday payment.

CA-00030256-003- Complaint under Section 27 of the Organisation of Working Time Act, 1997

I find the complaint is well founded. I award the complainant compensation of €1000.00.

CA-00030256-004- Complaint under Section 7 of the Terms of Employment (Information) Act, 1994

I find the complaint is well founded. I award the complainant compensation of €2606.80 equivalent to four weeks’ pay.

CA-00030256-005- Complainant under Section 27 of the Paternity Leave and Benefit Act, 2016

I find the complainant is not well founded.

Employer / employee relationship

Unpaid wages

Working time