Complainant

Respondent

Parties

Angela Mysliu

A L Investments Ltd

Representatives

None

None

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00039537-001

02/09/2020

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

CA-00039537-002

02/09/2020

The complainant worked as a receptionist at a nail salon. She claims that she was not paid the wages due to her. The respondent denies the claim.

The complainant outlined that the employer offered the role with the stipulation that she had to do two weeks of unpaid training. The complainant was then to receive €50 per day. She started around the 15th July 2020 and her employment was terminated by the employer at the end of August 2020. Her working hours were 10am to 7pm, although she left early on a couple of days. The complainant said that she always worked two or three days every week. She stated that she was not provided with a contract of employment.

The complainant outlined that she worked for the respondent as a receptionist, answering phones. Money was taken from her pay for treatments, and she once had to pay for a treatment.

The complainant said that she was never aware that this was an internship. She received nine or ten payments of €50, meaning that she was paid a total of €450 by the respondent. She said that she was very committed to the role and worked her hours.

The complainant outlined that a company director harassed her by phoning her after work. This person also sent text messages. The complainant was in charge of opening up the salon every day she worked there, and also locked up the premises. She also ensured that it was clean.  She outlined that she initially worked three days per week and towards the end it was two days per week. She arrived at about 9.30am and finished at around 7pm. She said that once she left one hour early and a second time, she left five minutes early.

The respondent outlined that the complainant was interviewed for the role on the 6th July 2020 and started the following week. The complainant was not hired as a receptionist but as a beauty therapist. The respondent had to assess the complainant’s skills and so, the complainant was offered the role of intern. The respondent did not register the complainant as an employee as she was an intern and did not have the skills to be a therapist. The respondent offered the complainant training and gave her €50 per day. The complainant was never an employee but an intern.

The respondent outlined that the complainant received payments of €50 for every day she worked, but also received expensive treatments. The respondent could have paid her less. The €50 a day was a payment from the director, who had not been paid during her own internship. The payment was to cover food and transport. The complainant worked Thursday, Friday or Saturday, sometimes working two or three days in the week.

The respondent outlined that the complainant left the role and was not dismissed. It outlined that the complainant was telling clients about her private affairs, so she was advised to consider her position.

The respondent outlined that it had received State support during the pandemic but not in respect of the complainant as she was not an employee. The respondent stated that the complainant attended for about six weekends and came whenever she wanted. The complainant did not see clients.

The respondent outlined that the complainant received treatments every time she attended. The complainant, for example, paid €20 when the treatment would cost €80. The respondent did not accept that any harassment took place. The respondent stated that the complainant would not clean the premises. While the complainant had keys towards the end of this time, she never opened the premises. The complainant often left early.

The respondent was not sure if €450 was the full amount paid to the complainant. It confirmed the company name.

The witness who was an employee said that she had taught the complainant two or three days per week, but the complainant was not good. The employer had wanted to do its best and during July, she worked with the complainant two or three days a week.

The witness who was a customer said that the complainant had done her nails on a couple of occasions but did a bad job. The complainant had spoken about her personal life and made the witness feel uncomfortable. She had met the complainant on two days in July 2020, a Thursday and then a Friday.

It is clear from the complaint form that the matter raised by the complainant is that she was not paid in full for her time at the respondent. In reply, the respondent states that the complainant was an intern and not entitled to pay, but that she received daily payments and expensive treatments. As this is a matter relating to pay and the parties were able to address all the issues arising from this matter, I have examined this case per the National Minimum Wage Act and the Payment of Wages Act. I make decisions pursuant to both Acts.

The complainant spent about six or seven weeks at the respondent. She sourced the role via a jobs website and the advertised role was ‘beauty therapist’. The complainant attended the respondent premises two or three days per week and was listed on the roster. The parties agreed that the complainant had keys to the premises but disagreed whether she opened the salon. The respondent characterises the complainant as a beauty therapist intern, while the complainant describes that she was the receptionist.

While the parties differed in how they described the complainant’s role, I note that both the National Minimum Wage Act and the Payment of Wages Act cover both employees and apprentices. The National Minimum Wage Act covers contracts personally to perform any work or service, i.e. broader than employee status. The Payment of Wages Act covers contracts to perform any work or service in respect of third parties.

Having considered the evidence of the parties, I find that the complainant was an employee in her time with the respondent. She obtained the role via a jobs website and was interviewed. The parties messaged when she had to be at the premises, and she was on the roster. The complainant was supplied with keys and at the very least, closed the premises on the 13th August (per the messages). The complainant messaged to say she would be leaving early, and the respondent also criticised her for leaving work early. These are all the hallmarks of what is expected of an employee, in particular the mutuality of obligation that forms part of the employment relationship.

I find that the complainant attended work for 10 days. She was paid €50 for every day she attended. I note that there were also beauty treatments, but such treatments do not fall within the definition of ‘wages’ and cannot be taken into account. I find that the applicable hourly rate in this case was €10.10 per hour as this was the minimum. I accept that the complainant generally worked from 10am to 7pm, although left at 3.30pm or so on the 8th August (per the message). In the absence of definitive working time records, I find that the working day was nine hours, less the early finish on the 8th August. Taking account of the shorter Saturday on the 8th August, the complainant worked 86 hours.

The complainant’s total entitlement to pay was €868.60 and she was paid €450. The complainant is, therefore, due the difference between these amounts, i.e. €418.60. This is an award pursuant to the Payment of Wages Act.

The complainant did not request from the respondent a statement of her hourly rate of pay for any pay reference period and I, therefore, cannot make a decision pursuant to the National Minimum Wage Act.

CA-00039537-001

For the reasons set out above, I do not have jurisdiction to hear this complaint pursuant to the National Minimum Wage Act as the complainant did not request from the employer a statement of her hourly rate of pay for a pay reference period before making this claim.

CA-00039537-002

I decide that there was a contravention of the Payment of Wages Act, and the respondent shall pay to the complainant redress of €418.60.

Pay / National Minimum Wage Act / Payment of Wages Act