ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029566
Parties:
| Complainant | Respondent |
Anonymised Parties | An Au Pair | A family |
Representatives | Karl Gill, Dublin South Citizens Information Service | Self. |
Complaint(s):
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-00040203-002 | 01/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040203-003 | 01/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040203-004 | 01/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040203-005 | 01/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040203-006 | 01/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040203-007 | 01/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040203-008 | 01/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00040203-009 | 01/10/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00040203-011 | 01/10/2020 |
Date of Adjudication Hearing: 04/11/2021
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 79 of the Employment Equality Acts, 1998 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant was employed by the Respondent family as an au pair. Employment commenced on 16th July 2020 and ended on 13th September 2020. This complaint was received by the Workplace Relations Commission on 1st October 2020. |
Summary of Complainant’s Case:
1. The complainant is an 18-year-old Spanish national who moved to Ireland in summer 2020. 2. The Complainant started work with the respondent on the 16th July 2020 and finished employment with them on the 13th September 2020. 3. The respondent is a married couple with no registered company or business name. This complaint was lodged with the respondent's name as one of the individuals from the employer and listed that same name, Mr B, as the relevant contact person. 4. Our client was employed as an Au Pair by the respondent. Her duties were to look after their only child. Her place of work was the home of Mr Mrs B.
5. A two-page document entitled 'Au Pair Invitation Letter' was issued to the Complainant.
Eleven complaints were submitted to the Workplace Relations Commission. Two of these complaints have been dealt with by an Inspector of the Workplace Relations Commission. Eight complaints are taken under the Payment of Wages Act, 1991 for adjudication. One complaint is made under the Employment Equality Act 1998 as amended.
This submission will only deal with the complaints referred for adjudication under the Payment of Wages Act and the complaint made under the Employment Equality Act. The complaints referred to the Inspectors section are not outlined in this submission. We will deal with each complaint in turn.
Background.
The complainant had registered her interest to work in Ireland as an Au Pair by joining a Facebook group established for this purpose. As a result of this she was contacted by Mrs B via Facebook messenger and asked if she would like to come to work for her in Ireland. The Complainant agreed, and arrangements were made. Initial flight plans in May 2020 had to be cancelled due to COVID-19 but new flights were booked for July 2020. The contract was drawn up prior to the complainant's arrival in Ireland hence the fact that it is dated May and not July. PaymentofWagesComplaints.
In relation to the contract the following is stated: "The host family provide board and lodging for the Au Pair and places at her disposal a separate suitable bedroom with separate bathroom. The Au Pair is welcome and encouraged to join family meal times, family activities and events. In addition, the host family provide Au Pair pocket money amounting to 175€/ week. The Au Pair will provide childcare to the child every Monday through to Friday, the start times are 8.30 AM to 4.30 PM. The Au Pair will have two free days per week, every Saturday and Sunday.'' No arrangements were made for deductions from pay for the purposes of board and lodgings. It does not specify any such arrangement in the contract and no payslips were provided. Following the WRC Inspector's investigation the respondent retrospectively created a payslip for each week on the instruction of the Inspector. It is clear from the wording of the contract or "Invitation Letter" that the respondent was of the opinion that hiring an Au Pair was not a standard employment arrangement and was one where it was legitimate to provide "pocket money" instead of regular contracted payment. We submit that ignorance of the law is no defence. The Complainant was 18 at the time of employment her rate of pay at minimum wage was €8.08 per hour. Ultimately there was an under payment each week. The Complainant was not comfortable in communicating with the Respondent to seek a statement regarding hourly rate for the purposes of minimum wage complaints.
The following complaints were made under section 6 of the Payment of Wages Act 1991: CA – 00040203 – 002; 00040203 – 003; 00040203 – 004; 00040203 – 005; 00040203 – 006; 00040203 – 007; 00040203 – 008; 00040203 – 9. The amount claimed in each complaint is €168.40. A total of €1,347.20.
Employment Equality Act, 1998 - Complaint Number: CA-00040203-011.
This is a complaint of Discrimination on the grounds of Gender and sexual harassment and victimisation.
In August 2020 Mrs B left Ireland with her only child for a holiday. The Complainant could not perform her duties regarding childcare as a result. As an alternative she carried out housework and other duties during this time.
The complainant used this time to become better acquainted with Dublin and to make friends. The Complainant was dismissed from her employment and evicted from her accommodation on 13th September 2020.
Mr B, on occasion, texted the complainant regarding her weekly pay. However, when Mrs B left Ireland Mr B began texting our client far more frequently, in a more conversational and chatty manner. On one occasion, while our client was out with friends Mr B asked our client to do a video call. This had not happened before. Our client did not initially see anything untoward in this behaviour but in hindsight she now feels that this was an attempt from Mr B to flirt or groom her.
The kind of messages sent by Mr B to our client while Mrs B was in the country are seen by the first message sent on the 4th August 2020 which reads: "Hey N, Mrs B tells me today you were too tired to take (the baby) out, which, as I mentioned this morning isn't great because that is the one thing you need to make sure you have: energy. What puzzles me is that this evening somehow you found the energy to go out. Would you be able to explain to me the contradiction?" It is notable that the first message sent to the Complainant by Mr B came three weeks after the complainant started her employment with the respondent. The text messages that came while Mrs B was on holidays concern request to eat meals with the Complainant, supposed concern for the Complainant’s welfare, asking her where she is and when she will be back to the house and a request for a video call.
On the 22nd August 2020 at 8.53pm Mr B texted the Complainant while she was out with a friend to say: "Hey, feel free to come earlier today. I have the feeling you’re coming home late just to avoid being around the house".
On the 23rd August 2020 at 12.03pm Mr B texted the Complainant to say: "Morning, I am now going to the supermarket. Want me to bring anything for lunch?" TheComplainantresponded, "I'm OK, thanks!"
An hour later Mr B texted "Hey, what are you up to?" The Complainantdidn’t respond. This was the first time this kind of message was sent from Mr B. The next message from the Complainant was at 11pm that evening , the Complainant was informing Mr B that she would not be staying in the house that night.
Mr B followed up with the Complainant the following day, 24th August 2020, at 1.25pm: "Hi, How's everything? All good?" he then stated '‘. Just wanted to make sure you were ok".
At 9.15pm that night Mr B texted: "Hey, , all good? Where about are you?" The Complainantexplained where she was and that she would be back at the house soon. Mr B then sent four messages: These were as follows: 6. All good. Just that you left a long time ago.. so think it is good to keep checking .. you are still new to Ireland."7. "How long until you get home?"8. "Don'tknowwhere Castletown is..."9. Do you mind doing a video call just to make sure I am talking to …..
The Complainant felt that the constant messaging was strange and was made feel uncomfortable by the request to do a video call. She felt that this was unnecessary surveillance during her time off from work. She had responded that she was safe and that she would be back to the house soon. In hindsight our client now feels that the request for a video call was something more than just invasive superintendence from an employer and that Mr B had ulterior motives. The following morning, he texted: "Goodmorning!How are you feeling today? Will you have lunch?"
On the evening of August 25th, 2020, the complainant arrived back at the respondent's address. Mr B asked our client to join him in the living room of the house. He then asked for her phone so he could, as he said, "see pictures of your friends". He said he "needed to know that he could trust" the Complainant.
He then commented that the Complainant was the "prettiest of them all" and that he thought she was "really interesting" and "beautiful".
Mr B then asked the Complainant if she had any "naughty pictures" of herself on her phone. The Complainant said "No" and made it clear that she was becoming uncomfortable.
Mr B then stated that his wife, was "going crazy" on holidays as he was alone in the house with the Complainant.
The Complainant asserts that Mr B then placed his hands at her armpits and used his fingers in a tickling fashion, applying pressure to her armpits and sides. The Complainant did not laugh and claims that she was visibly uncomfortable. She said "No" and "Stop" on a number of occasions but Mr B continued attempting to tickle her after she made it clear that she did not consent to this activity.
The Complainant asserts that Mr B then moved directly next to her on the couch where she was sitting and began rubbing both her upper legs up and down. Mr B then repeated that he found the complainant "very interesting". This made the Complainant very uncomfortable. She again said "No" and "Stop". Only when she got up off the couch did the touching end.
The actions of Mr B on the night of the 25th August 2020 constitute sexual harassment as per the Employment Equality Act.
We are taking the actions of the Complainant in refusing consent, refusing Mr B’s sexual advances and complaining about same on the night of the 25th August 2020 to constitute a complaint of discrimination and opposing discrimination by lawful means for the purposes of the Employment Equality Act.
That night the Complainant could not sleep. Mr B had not given her a key to her room. She remained in fear that night.
The Complainant was confused to how this situation arose. She states that the nature of her relationship with Mr B was purely professional and that she had no physical or emotional interest in him whatsoever. At no moment would there have been any reasonable suggestion that her relationship with Mr B gave rise to any other possible romantic connotations. The Complainant submits that she never flirted with Mr B or expressed any kind of intimate, romantic, emotional or physical interest in him.
It was submitted that Mr B's physical and verbal conduct of a sexual nature was entirely unwanted and inappropriate. This matter was reported to the Gardai on the 15th September 2020.
Mrs B returned home from holidays on the 26th August 2020.
One week later (the week of the 1st September) Mrs B and Mr B got into an argument. Mrs B confided in the Complainant. Mrs B was clearly in fear and called the police. She informed the complainant that she had called the police on at least one other occasion. At this point the Complainant confided in Mrs B and informed her and complained about the night of the 25th August 2020 as explained above.
Mrs B said that she believed the complainant
Mr B went to Portugal on the 4th September 2020 and returned to Dublin on the 12th September 2020.
On the evening of the 13th September 2020 the Complainant was requested by the couple to speak with them. Mr B informed the Complainant that she was dismissed from employment with immediate effect. Mrs B commented that "I think it is for the best because I need to get over what happened between you two" and "It's better for me not to think about it every day".
The Complainant was then requested to leave the house straight away. She was to move out with all of her belongings as soon as a taxi arrived for her. She did not know Dublin well, she eventually found a hostel to stay in at the last minute. The following day she made arrangements to stay in a friend's house.
The Respondents were not aware that the Complainant had friends that she could stay with when they evicted her. It was submitted that evicting a young woman to wander in a city unknown to her at night time in a pandemic is extremely cruel treatment and is victimisation and further discrimination for the purposes of the Employment Equality Act.
It was submitted that this was an unfair discriminatory dismissal in a summary fashion on the grounds of gender and sexual harassment and no fair procedures were followed. The Complainant was not given an opportunity to put her views forward or to appeal this decision. No written decision regarding dismissal was given to the complainant.
The Law.
The Complainant submits that she was subjected to sexual harassment contrary to Section 14A of the Employment Equality Acts 1998- 2016 as amended.
As such it was submitted that the Respondent is in breach of Section 8, under the category in Section 6(2)(a), of the Act of 1998 as amended.
The complainant further submitted that she was subjected to victimisation contrary to Section 74(2)(a) and s.74(2)(f) of the aforementioned legislation.
As such it was submitted that the Respondent is guilty of an offence as per Section 98 of the Act of 1998 as amended.
Section 14A(7) of the Act of 1998 states:
"(a) In this section- (i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and (ii) references to sexual harassment are to any form of unwanted verbal, nonverbal or physical conduct of a sexual nature, being conduct which in either case has the purpose or effect of violating a person's dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. (b} Without prejudice to the generality of paragraph (a), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material" [Emphasis added]. The Employment Equality Act 1998, (Code of Practice) (Harassment) Order 2012 defines physical conduct of a sexual nature as: "This may include unwanted physical contact such as unnecessary touching, patting or pinching or brushing against another employee's body, assault and coercive sexual intercourse."
It was submitted that the respondent engaged in unwanted conduct of a sexual nature as per the above definition as outlined above at 12.2.15 and 12.2.16 regarding touching, attempted tickling and rubbing the complainant's legs on night of the 25th August 2020.
The Order (2012) defines verbal conduct of a sexual nature as: "This includes unwelcome sexual advances, propositions or pressure for sexual activity, continued suggestions for social activity outside the work place after it has been made clear that such suggestions are unwelcome, unwanted or offensive flirtations, suggestive remarks, innuendos or lewd comments."
It was submitted that the respondent engaged in unwanted verbal conduct of a sexual nature as per the above definition on the night of the 25th August as outlined above by way of comments made regarding our client's appearance, unwelcome sexual advances and suggested or insinuated propositions for sexual activity.
The Complainant states that these actions by Mr B left her feeling unsafe, fearful, intimidated, degraded, humiliated and her dignity violated.
It was submitted that the Complainant, being only 18 years old, new to the country, no qualifications, very little work experience, and no address in Ireland, reliant on her new employer for accommodation and working in precarious employment in domestic childcare fits the definition as particularly vulnerable to sexual harassment.
S. 74(2)(a) – The Complainant confided in Mrs B and informed her and complained of the discriminatory actions of Mr B towards her.
S. 74(2)(f) – The Complainant opposed Mr B’s sexual advances and made it clear that she was not comfortable with his actions.
It was submitted that the dismissal and eviction without notice was as a result of the Complainant complaining of Mr B's behaviour and her refusing his advances. It was further submitted that the adverse treatment was a result of the Complainant taking these protected acts. Had the Complainant not taken these protected acts she would not have lost her job and been subject to eviction.
As it is difficult to see what other inferences may be drawn from the above set of facts, it is the Complainant’s belief that the casual connection between the protected acts and adverse treatment is quite obvious and does not require any further exploration. As such the presumption of victimisation has been raised and the burden of proof should shift to the Respondent.
In Monaghan County Council v Roy Mackarel EDA1213 the Labour Court held a dismissal to constitute adverse treatment for the purposes of victimisation and the complainant was awarded €17,000. Here the Labour Court commented: "It is, in the Court's view, sufficient if the making of the complaint was an operative factor, in the sense of being anything other than of trivial influence, operating on the mind of the decision maker (see by analogy the dictum of Peter Gibson LJ in Wong v /gen Limited and Ors. {2005} IRLR 258 in relation to the degree of connection required between race and an impugned act or omission necessary to make out a claim of discrimination)."
An Office Worker v A Security Company DEC-2010-002 concerned a young female employee who when she started her employment with the respondent was 15 years old but was 19 at the time the complaint was submitted. This case concerned a complaint of sexual harassment for sexual remarks, dirty jokes, unwanted conduct of a sexual nature and inappropriate verbal and non-verbal conduct of a sexual nature. The Equality Authority found in her favour and awarded her €45,000 compensation. Inherdecision Equality Officer stated: "The respondent denied that he ever treated the complainant inappropriately or that he made any comments of an explicit nature to her which could be construed as sexual harassment."The Equality Officer further stated:"/ have also taken into consideration the fact that the complainant was subjected to this treatment at a very young age from the time she commenced the employment when she was only15 years old."
The Industrial Relations Act 1990 (Code of Practice for Protecting Persons Employed in Other People's Homes) (Declaration Order) 2007 defines an 'employee' at Section 2 as "a person who is employed in the home of another person". For the avoidance of any doubt we therefore submit that the complainant was in fact an employee of the Respondent. The Order (2007) at 5.2.2 states: "In the event that the employee lives in the home, the employer shall provide a private secure room with a bed". As the Complainant was not provided with a key to her room we submit that the respondent was in breach of the aforementioned provision. Further, at 5.11the Order (2007) states: "The employer shall take all reasonable steps to ensure that the employee is aware of his or her statutory entitlements as an employee." The respondent did not inform the Complainant regarding her statutory entitlements in any respect. It was further submitted that the respondent was in breach of 5.13 of the Order (2007): "Both the employer and the employee will mutually respect each other and the employer will take all reasonable efforts to ensure that the employee's dignity in the workplace is respected and protected."
Conclusion.As shown above the Complainant was severely underpaid during her employment with the respondent.
As such we ask that the Workplace Relations Commission make an award for each Payment of Wages complaint as outlined.
Further, as has been demonstrated above, the Complainant’s submission is that she was sexually harassed and discriminated against on the grounds of gender by the respondent employer contrary to law and suffered victimisation as a result.
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Summary of Respondent’s Case:
The Claimant is a Spanish national who moved to Ireland in July 2020 to work as an Au Pair for the Respondents. The Respondents are a married couple. Mr. B is a Portuguese national and his wife, Mrs. B is from Spain.
Background The Respondents have been living and working in Ireland for eight years. Their daughter was born on the 11th of November 2018 and they, prior to the arrival of the Complainant into their home in July 2020, had 3 Au Pair's working for them. One of which worked for them for seven months.
The Respondents initially contacted the Complainant through a Facebook group called "Au Pairs in Dublin" in April 2020 and carried out three interviews with her and her parents in Malaga. The Respondents chose her because her English was good even though she had not Au Paired before. She was initially due to arrive in Dublin on the 25th of May and begin work on the 30th of May 2020 however this had to be postponed because of the Covid restrictions on travel. The Respondent viewed this employment as not only a working relationship but a cultural exchange for a short period of time. The Complainant was provided with her own room in the Respondents home which was spacious at 14.2 square meters with its own wardrobe, work desk, single bed, and a very big balcony. The Respondent prepared a written contract of employment which was signed by him and the Complainant. That contract provided for the payment of €175 per week by the Respondent to the Complainant.
The Respondent paid the Complainant the sum of €175 per week and she was also provided with board that he estimates at a cost of between €150 and €250 per month. The complainant arrived at the Respondents home on the 16th of July 2020 and did not work on that day or on the following day when she was becoming acquainted with her new surroundings and the child's routine. The Respondents parents in law were in the house and took care of their daughter during that day. The Respondents paid the Complainant €35 for the 17th of July 2020 In total the Complainant worked 32 days between 20th July and 11th September. The Respondents wife took one week's holidays from the 19th to the 26th of August when she travelled to Spain with her baby daughter to see her family. During that week the Complainant took a week's holidays, and the Respondent will say that he barely saw her at home and that she would wake up late, leave the house during the afternoon and not return until the following day. The Respondents wife asked him to check in on the Complainant, because the Complainant's mother kept asking her to keep an eye on her daughter. The Complainant's mother had highlighted that she was worried about all the tinder friends the Complainant kept meeting. The Respondent had concerns in relation to the Complainant’s commitment and ability to carry out her duties. She was unable to put their daughter to sleep after lunch time. Their child, as a one-year-old baby, required sleep of around 15 hours a day. Due to the fact the Complainant was unable to perform this duty, the second named respondent, the child's mother, had to put her to sleep every day during her lunchtime leaving her with only 10 minutes for lunch. Due to Covid-19 pandemic, the Respondents were working from home and this gave the Complainant effectively 1.5 to 3 hours a day to do whatever she wanted, provided she would stay within walking distance of their house. During the course of her stay the following were some of the issues the Respondents had with regard to the Complainants behaviour and performance: · She had not been truthful about having previous experience minding babies or children. · The Respondent will say that the Complainant told him and his wife at some point when she was with them, that she did not want to ever have kids of her own and that she had no real experience with kids. · She was unable to put their daughter to sleep after lunch. · She had an inability to cook for their daughter. · She would sleep while their daughter was asleep in the afternoon, instead of performing her other duties such as ironing their daughters' clothes or cooking for her. · She was often distracted, not paying attention to their daughter, with the second named Respondent constantly having to remind her that she needed to play with their daughter for the normal development of their baby. · At some point she lost one of their daughter's shoes because of how distracted she was in the street. Sometimes she would say that she could not go to the children's playground with their daughter because she was too tired, but then in the afternoon she would go out to the city centre with her friends. · She was constantly making their daughter watch Netflix, and they would need to repeatedly remind her that she needed to play with their daughter. · TheRespondentandhiswifeweresurprisedathowtheComplainantwas dating several men from tinder and meeting them close to their house. · Showering in bathrooms that they did not allow her to use. · Constantly asking for cash in advance.
The Respondents say that they always did their best to maintain good relations with the Complainant and speak to her in a polite manner, doing their best to give her the opportunity to do a fair job. The Respondents maintain that the Complainant did not work 42.5 hours work per week as set out in her WRC Complaint form and that she in fact only worked at most 30 hours per week. The Complainant has made eight separate claims under Section 6 of the Payment of Wages Act 1991 in respect of wages that she says are due to her in the sum of €254.25 for each of the 8 weeks commencing the week ending the 24th of July 2020. The Complaint states in her claim form that she was paid €175 per week for 42.5 hours per week. The Respondent acknowledges that he and his wife employed the Complainant as an Au Pair from the 20th of July 2020 to the 11th of September 2020. Section 6 of the Payment of Wages Act provides as follows: 6.-(1) An employee may present a complaint to a rights commissioner that his employer has contravened section 5 in relation to him and, if he does so, the commissioner shall give the parties an opportunity to be heard by him and to present to him any evidence relevant to the complaint, shall give a decision in writing in relation to it and shall communicate the decision to the parties. Section 5 contains the prohibition on an employer making deductions from an employee pay otherwise than as agreed with the employee or in accordance with subsection (2) of Section 5 5.-(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c)in the case of a deduction, the employee has given his prior consent in writing to it. The Complainant has confirmed in her claim form that she was paid her full entitlement to her contractual pay as per the agreement reached with the Respondent in the sum of €175 per week for each week of her employment. The Complainant has not brought a Complaint under Section 27 of the Minimum Wage Act 2000 and there is therefore no claim pursuant to that legislation before the Adjudication Officer. Complaint submitted under the Employment Equality Act, 1998 – CA- 00040203 – 011. The Complainant claims that she was discriminated against by her employer by reason of her gender, and that the Respondent treated her unlawfully by discriminating against her and victimising her and dismissed her because she opposed discrimination. The Complainant has also selected complaint of discrimination by way of sexual harassment. The Complainant has sought redress under Section 77 of the Employment Equality Act 1998. The Complainant has set out in her detailed Statement in her WRC Claim form a factual narrative that the Respondent denies and rejects in its entirety in relation to certain alleged events that she says occurred on the evening of the 25th of August 2020 in the Respondents home. The burden of proof rests on the Complainant to establish that she has a prima facia case discrimination under the Employment Equality Acts. The Respondent submits that the Complainant has not established that this is the case. In order to establish a prima facia case, the Complainant must show: - I. That she is covered by the relevant discriminatory ground. II. That the treatment that she complains of actually occurred III. That the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant legislation. The Respondent respectfully submits that the Complainant was not treated less favourably than her colleague, any comparison of her circumstances with those of her colleague will show that the circumstances were entirely different and that any different treatment whether that relates to an offer of mediation of pay or any other matter was not in any way related to gender or any other of the nine grounds. It is the Respondents respectful submission that the Complainants claim in this regard has no merit and should fail. and that therefore her claim in this regard should fail.
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Findings and Conclusions:
Payment of Wages Act, 1991. The following complaints were made under section 6 of the Payment of Wages Act 1991: CA – 00040203 – 002; 00040203 – 003; 00040203 – 004; 00040203 – 005; 00040203 – 006; 00040203 – 007; 00040203 – 008; 00040203 – 009. The complaint relates to the wages paid to the Complainant being less than the National Minimum Wage. I note that the Complainant had the benefit of legal advice from Citizens Information from late September 2020, approximately two weeks after her employment with the Respondent ended.
This complaint should have been submitted under the National Minimum Wage Act, 2000 and her legal representative should be aware of this fact. In late September 2020 there was sufficient time for the legal representative to request the statement regarding hourly rates as required by the National Minimum Act, 2000. Point 3.7 of the Complainant’s submission reads as follows: “Our client was not comfortable in communicating with the Respondent to seek a statement regarding hourly rate for the purposes of minimum wage complaints”.
The Complainant was paid the contracted rate she agreed to prior to the commencement of employment.
The complaints as submitted under s. 6 of the Payment of Wages Act, 1991 are not well founded.
CA – 00040203 – 011 – complaint submitted under s.77 of the Employment Equality Act, 1998.
In evidence the Complainant stated that everything in relation to her work was fine initially and it was only when Mrs. B went on holiday to Spain with the baby that things changed. The Complainant used this week as holidays and stated that she saw very little of Mr. B during this period, when she did see Mr. B it was normally around lunch time. On 25th August 2020 the Complainant was chatting to Mr. B and he insisted that she join him in the sitting room, when she did he asked her what she had been doing. Mr. B then asked the Complainant had she any pictures of her friends from Spain, she showed pictures to him and he told her that she (the Complainant) was the prettiest of them all. He asked her did she have more pictures and then, it is contended by the Complainant, he asked her did she have any naughty pictures.
The Complainant stated that by this stage she was becoming quite uncomfortable and made an attempt to get up from the couch and leave the room. Mr. B was insisting that she stay and talk to him. When the Complainant made a phone call she contends that Mr. B started tickling her and touched her legs and he asked her if she thought he was attractive. The Complainant states that she did not know what to do. Mr. B then blamed his behavior on his wife, it was she who had left them alone in the house. The Complainant then states that she went to bed feeling scared and called her mother on the telephone. The following day, 26th August 2021, the complainant left the house. Mr.B called her and asked would she be returning to the house before his wife arrived home.
When the wife, Mrs. B arrived home on the evening of 26th August 2021, the Complainant said nothing to her in relation to the evening before.
On 3rd September 2021 Mrs. B called into the Complainant’s bedroom and informed the Complainant that Mr. B had grabbed her phone. The Complainant then informed Mrs. B what had happened on the night of 25th August and in the opinion of the Complainant, Mrs. B believed her. Mrs. B informed the Complainant that she had called the Gardai.
On 4th September Mr. B went to Portugal on his own. The Complainant was of the opinion that Mrs. B had also consulted with a solicitor.
The Complainant’s sister visited the Complainant while Mr. B was in Portugal. The night before Mr. B came back to Ireland Mrs. B advised the Complainant not to be in the house when he arrived home. On the evening of the 13th September 2020 the Complainant was requested by the couple to speak with them. Mr. B informed the Complainant that she was dismissed from employment with immediate effect. Mrs. B commented that "I think it is for the best because I need to get over what happened between you two" and "It's better for me not to think about it every day".
The Complainant was then requested to leave the house straight away. She was to move out with all of her belongings as soon as a taxi arrived for her. She did not know Dublin well, she eventually found a hostel to stay in at the last minute. The following day she made arrangements to stay in a friend's house.
The representative of the Complainant states that the Respondents were not aware that the Complainant had friends that she could stay with when they evicted her. It was submitted that evicting a young woman to wander in a city unknown to her at night time in a pandemic is extremely cruel treatment and is victimisation and further discrimination for the purposes of the Employment Equality Act.
In his evidence Mr. B stated that the family had used a Facebook site to find an Au Pair. They initially had concerns that the Complainant was very young and had no previous Au Pair experience. During the recruitment process Mrs. B had talked to the Complainant’s mother who they found very convincing, they had also spoken to the Complainant’s older sister. The Facebook site they had used recommended the wages to be paid (referred to on this site as pocket money) and they found a contract template that they adapted to suit their needs. They readily accept that they were amateurs when it came to employment matters.
When the Complainant arrived at the Respondent’s home she engaged in conversation with Mrs.B’s parents who were visiting at that time. The initial opinion formed was that they had hired quite a complex individual, she had informed the parents about a court case involving a former boyfriend and had also made a reference to suffering from depression.
Between 17th July and 25th July there were a number of issues raised with the Complainant in relation to her performance. She appeared to have a lack of interest in the job, she would not take the baby to the park in the evenings, she lost an item of the baby’s clothing. Mr. B spoke to the complainant about her performance and the need to improve.
In relation to Mrs. B’s trip to Spain with the baby Mr. B was very busy with work and could not go. It was decided by Mr and Mrs B that the Complainant should travel to Spain with Mrs. B and the baby and initially the Complainant agreed to this. It was the evidence of Mr. B that when the Complainant heard he was not going to Spain that she asked could she remain in Dublin and take the time off as holidays, this was agreed.
During the cross examination of Mr. B he did accept that employees can have disabilities and health problems but also stated that this should have been disclosed at interview. Mr. B also stated that the family had employed au pairs before the Complainant and when asked did they have any experience of being an employer stated that he felt it was more of a cultural exchange than an employment relationship. It was accepted by Mr. B that whilst some shortcomings in the Complainant’s performance had been identified and discussed with the Complainant there were no formal warnings issued. In relation to the request for a video call Mr. B stated that he wanted to ensure that it was the Complainant he was communicating with and not someone else using her telephone. He also stated that the Complainant’s mother was very concerned about her and her use of Tinder that he felt that she was in loco parentis and he was simply concerned about her welfare. In relation to the Complainant meeting men close to the family home Mr. B stated that his wife had witnessed this. The final question put to Mr. B was he a controlling man. He replied No.
In evidence Mrs. B summarised the process of recruiting the Complainant and the delays in her arrival due to the Covid pandemic. When Mr. B collected the Complainant from the airport it is the evidence of Mrs. B that the Complainant was talking about weird things to her husband, it is her evidence that the Complainant informed the husband of her depression and how she had to take pills for depression and also the troubles she had experienced with a former boyfriend. Mrs. B asked the Complainant about the depression and why she had not informed them of this she was informed that the Complainant’s mother had told her to withhold these facts from the Respondent. Mrs. B did not like the attitude of the Complainant – she only wanted to talk about herself.
During the early days of the Complainant’s employment Mrs. B felt that the Complainant was not engaging with her daughter and was critical of the Complainant’s efforts to cook meals for the child. Mrs. B told how she had found the pills in the Complainant’s bedroom when she went to the bedroom to open the windows, something she claims she had to do every day. When Mrs. B questioned the Complainant in relation to the pills she was informed by the Complainant that she had stopped taking them two months previously. It was later stated that the pills are an over the counter medicine in Spain however in Ireland a prescription is required.
Mrs. B was not happy that random boys were coming to the house looking for the Complainant and she felt that Tinder was a dating app and not a friendship app as suggested by the Complainant’s representative.
At one stage Mrs. B said that having the Complainant in her home was more like having another daughter than having a live-in employee in her home.
Mrs. B also stated that it was agreed that the Complainant would accompany her and the baby to Spain but when the Complainant heard that Mr. B was not travelling she asked could she remain in Dublin. Whilst in Spain Mrs. B received several calls from the Complainants mother asking her to check how her daughter was.
Mrs. B commented that if both she and her husband had been going to work rather than working from home the Complainant would not have lasted very long, her performance was not good.
Mrs. B said it was strange that the Complainant would not talk to the Gardai when she had called them to the house.
When Mr. B arrived back from Portugal it is Mrs. B’s evidence that when she spoke to him he denied all wrong doing.
Both Mr and Mrs B then met with the Complainant and informed her that things were not going to work and asked her did she want to return home to Spain, they were willing to get her a ticket home.
During cross examination Mrs. B informed the Complainant’s representative that she had been a criminal lawyer in Spain prior to coming to Ireland. In relation to the Complainant suffering from depression Mrs. B stated this was a concern for her.
In relation to other au pairs working in her home Mrs. B stated that there had been problems with one of them who was going through her personal belongings. Mrs. B also stated that another au pair would flirt with her husband and this appeared to amuse Mrs. B.
In relation to calling the Gardai Mrs. B stated that her husband had stolen her phone and she became angry and that was why she had called the Gardai.
When the Complainant’s sister arrived to visit the Complainant, Mrs. B felt that both the sister and the Complainant were lying to her.
Conclusions.
The Employment Equality Accts 1998-2005 define harassment as unwanted conduct which is related to any of the 9 discriminatory grounds. Sexual Harassment is any form of unwanted verbal, non-verbal or physical conduct of a sexual nature. In both cases it is defined as conduct which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person and it is prohibited under the Acts. Harassment is defined in section 14A (7) of the Acts as any form of unwanted conduct related to any of the discriminatory grounds which has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading humiliating or offensive environment for the person.
The Department of Justice, Equality and Law Reform produced an updated Code of Practice on Sexual Harassment and Harassment in 2012. The code seeks to promote the development and implementation of policies and procedures which establish working environments free of sexual harassment and harassment and in which the dignity of everyone is respected. The provisions of the code are admissible in evidence and if relevant may be taken into ac count in any criminal or other proceedings before a court.
In the instant case all allegations of the Complainant are being denied by the Respondent. It is of note that the submission from the Complainant very much focuses on the events of the night of 25th August 2020 and the Respondent’s submission states “The Complainant has set out in her detailed statement in her WRC Claim form a factual narrative that the Respondent denies and rejects in its entirety in relation to certain alleged events that she say occurred on the evening of the 25th August 2020 in the Respondent’s home”.
There is very little or no information relating to the Respondent’s version of what took place on the evening of 25th August 2020.
Cases of harassment and sexual harassment can range from relatively minor incidents of verbal harassment to very serious incidents of actual or attempted sexual assault. Issues sometimes arise as to whether an assault was in fact a sexual assault. For example, in A Complainant v A ContractCleaning Company(DEC-E-2004 – 068) the claimant alleged that crude and sexually offensive remarks had been made to her by a security guard at a shopping centre where she was employed to provide cleaning services. This behaviour culminated in the security guard striking her on her bottom. The company accepted that a witness had seen the security guard strike the claimant on her bottom but suggested that these actions were not intended as an act of any intimacy and that the claimant appeared amused by the security guard’s actions. The Equality Officer decided, on the balance of probabilities, that the claimant’s evidence was more compelling, particularly as she had reported the matter to the Gardai early the following morning. However, the Equality Officer also pointed out that:
“…. even a single slap on the bottom is sufficient to constitute an act of sexual harassment… I note the respondent’s comment, whilst accepting Mr B struck the complainant on the bottom that his actions were in no way intended as an act of any intimacy. The question of intent on Mr B’s part is not relevant as section 23(3) of the Act clearly leaves the decision as to whether or not the behaviour is unwelcome with the complainant. I am satisfied that she found the behaviour unwelcome and she spoke with her husband about it on her return home (he confirmed this at the hearing), she reported the incident to the Gardai later that night (19 December) and also reported the matter to both her employer and Mr B’s employer the next morning (the first opportunity for her to do so).”
Note: The Mr. B referred to above is not the Respondent in the instant case.
Harassment and Sexual Harassment.
The Acts prohibits harassment of a worker on any of the discriminatory grounds, or sexual harassment at their workplace or otherwise in the course of their employment. Where harassment occurs, it will constitute discrimination by the employer. The employer is rendered liable for harassment or sexual harassment once it occurs and the perpetrator is a person who is:
1) Employed at that place or by the same employer 2) The victim’s employer, or 3) A client, customer or other business contact of the victim’s employer and the circumstances of the harassment are such that the employer ought reasonably to have taken steps to prevent it.
The definition of harassment is very wide. It can include any form of unwanted conduct which is related to any of the discriminatory grounds. Sexual harassment can also arise from any form of unwanted conduct of a sexual nature. The conduct constituting harassment must have the “purpose or effect” of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person. The conduct need not be intended to harass the victim. It is sufficient if it has that effect.
The effects of the conduct must be experienced by the victim in the course of their employment, although the perpetrator need not be at work or acting in the course of employment, when the conduct occurred. So, for example, a posting on social media made by a person from home which was intended to disparage the victim at work was considered harassment.
Only the Complainant and Mr. B know exactly what happened on the night of 25th August 2020. I have carefully considered the submissions from both parties and have carefully gone through the evidence adduced at the hearing of the complaint.
On the balance of probability, I find the evidence submitted by the Complainant to be more compelling. I find that the Complainant suffered harassment and sexual harassment and discrimination at the hand of the Respondent.
I now order the Respondent to pay compensation of €9,100 to the Complainant. This compensation should be paid to the Complainant within 42 days from the date of this decision.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
The following complaints were made under section 6 of the Payment of Wages Act 1991: CA – 00040203 – 002; 00040203 – 003; 00040203 – 004; 00040203 – 005; 00040203 – 006; 00040203 – 007; 00040203 – 008; 00040203 – 009.
All of the above complaints submitted under s.6 of the Payment of Wages Act, 1991 are not well founded.
CA – 00040203 – 011 – complaint submitted under s.77 of the Employment Equality Act, 1998.
On the balance of probability, I find the evidence submitted by the Complainant to be more compelling. I find that the Complainant suffered harassment and sexual harassment and discrimination at the hand of the Respondent.
I now order the Respondent to pay compensation of €9,100 to the Complainant. This compensation should be paid to the Complainant within 42 days from the date of this decision.
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Dated: 7th March, 2022
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Payment of Wages Act, 1991. Employment Equality Act, 1998. |