ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00048189

Parties:

	Complainant	Respondent
Anonymised Parties	Child Minder	Redacted Holdings Limited

Representatives

Barry Crushell Crushell & Co Solicitors/Cillian McGovern BL

EP Daly Solicitors/ Caroline Doyle BL

Complaint(s):

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00059177-002	02/10/2023
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00059177-003	02/10/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00059177-004	02/10/2023

Date of Adjudication Hearing: 16/09/2024 and 26th April 2024

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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). Parties have been anonymised as this dispute has a connection to pending divorce case before the High Court.

Background:

The Complainant has been employed as a carer for the 2 directors’ children.

The two directors were married and arising from divorce proceedings the payment of wages due to the Complainant changed from being processed through payroll to being processed through a different company account.

This change occurred on or about June 2022.

One director, the husband, alleged that the contract entered into with the Complainant was irregular and allowing for the differences between the company directors; he wished for this arrangement to end. He alleged that the Company should not have been employing the Complainant as a nanny.

The other director, the wife, stated that the contract was lawful. The Complainant was married to an EU national and was legally allowed to work in Ireland based on that relationship. The employment was necessary to support the directors of the company to carry out their roles while the children were cared for. The arrangement was entered into with company based on independent tax advice. The contract was not irregular. The payments continue to the Complainant, and she continues to care for a dependent child. The other director, it is alleged, arising from an animus with his wife, solely related to their divorce and legal proceedings, unilaterally removed the Complainant from the payroll. However, that decision could not be made unless she also agreed to it. The net payment of wages continued to be paid to the Complainant. However, the company were not declaring the required statutory deductions as the other director, the husband, controlled the financial management of the Company and had stopped paying the Complainant through payroll.

Summary of Complainant’s Case:

The Complainant is legally residing and working in Ireland.

Her contract of employment continues with the Company.

The fact that the Company has stopped paying her through payroll has created a number of unintended consequences particularly regarding her social protection rights.

The Complainant was employed as a Nanny and provided childcare services. Her work was controlled and directed by the Company, and she agreed to provide her labour for a salary. That arrangement continued for several years and how she was paid was changed from being through the Company’s payroll to being paid from a Company account.

The Complainant maintains that her employment continues and the change in how she was paid solely arose from acrimonious divorce proceedings. Her work continues and she continues to be an employee of the Company.

The following redacted chronology details her employment as a Nanny for the two directors:

· Commencement of Employment as a Nanny 01 April 2009 in Moscow.

· Family relocated from Moscow to Dublin 2010.

· Complainant retained by Respondent sister company as a Project Manager pending Irish visa in 2010.

· Complainant relocated to Dublin from Moscow 2011.

· Sister company and Respondent(Parent Company) merged 2017.

· Judicial Separation Proceedings initiated September 2021.

· Removed from payroll June 2022 and continued to be paid by Company from another account

· Continued to work as a Nanny.

Summary of Respondent’s Case:

It is argued by one Director, who is also the father of the children that the arrangement was irregular and based on that fact he ended the wage being made to the Complainant and her direct employment by the Company.

It was also argued the Complainant’s right to work in Ireland was a consideration by the father when deciding to stop paying the Complainant through payroll. She is a Russian citizen and may not be working legally in Ireland.

The rationale for removing the Complainant from the payroll, it was argued, related to the fact that the divorce would give rise to external scrutiny, and it was now necessary to make good any deficiencies and irregularities such as the payment of wages to the Director’s nanny that should never have been processed through the Company.

Findings and Conclusions:

The Respondent Company were requested to provide records of payment to the Complainant.

That record was produced at the second day of hearing and showed that the Company continued to pay the Complainant.

The two directors; however, provided two different accounts of why that payment continued. One director perceived that the payment should have stopped, and that the employment had ended on or about the end of June 2022. The reason for terminating the employment arose from the fact that the contract was irregular.

The wife, also a director, stated that the contract ended not because it was an irregular contract, rather it was linked to the couples’ divorce and the Complainant simply was caught in the crossfire between the couple. The Complainant continued to perform her duties and continued to receive her pay from a different Company account that this Director could use.

The Employee was married to an EU citizen when she moved to the EU and resided in the EU and married for many years to an EU citizen. She is now divorced.

I note DIRECTIVE 2004/58/EC OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States:

(15)

Family members should be legally safeguarded in the event of the death of the Union citizen, divorce, annulment of marriage or termination of a registered partnership. With due regard for family life and human dignity, and in certain conditions to guard against abuse, measures should therefore be taken to ensure that in such circumstances family members already residing within the territory of the host Member State retain their right of residence exclusively on a personal basis.

The Complainant is residing lawfully in Ireland.

The test to determine employment status has recently been determined by the Supreme Court in The Revenue Commissioners v Karshan (Midlands) Ltd t/a Domino’s Pizza [2023] IESC 24. The Court detailed a methodology to apply when analysing the factual matrix of a particular claim to determine if the contract was one of or for service. The following are questions that should be referenced:

(i) Does the contract involve the exchange of wage or other remuneration

for work?

The contract did involve the exchange of wage and latterly a payment made through a Company account.

(ii) If so, is the agreement one pursuant to which the worker is agreeing to

provide their own services, and not those of a third party, to the

employer?

The Complainant agreed to mind the Directors children.

(iii) If so, does the employer exercise sufficient control over the putative

employee to render the agreement one that is capable of being an

employment agreement?

The other Director the mother of the children countermanded that decision and payment continued but not through payroll.

It was also argued by the father that the employment status of the Complainant is unlawful. No evidence was presented to support that contention.

A company may provide a wide range of services to its employees as part of the overall employment offering. That can range from basic catering services to a full-on site restaurant service or a gym or a creche. The employer may subcontract these services or directly employ staff to provide these services to work colleagues. The Complainant is this case is providing childcare services and was directly employed by the Company to provide that service and her activities were controlled to a very high level by the Company.

(iv) If these three requirements are met the decision maker must then

determine whether the terms of the contract between employer and

worker interpreted in the light of the admissible factual matrix and

having regard to the working arrangements between the parties as

disclosed by the evidence, are consistent with a contract of employment,

or with some other form of contract having regard, in particular, to

whether the arrangements point to the putative employee working for

themselves or for the putative employer.

In answering the first 3 questions I have determined that the terms of the contract when interpreted in the light of the factual matrix and the working arrangements between the parties based on evidence is a contract of service and not for service.

I have given very careful consideration to the evidence of both directors. It cannot be ignored that a contentious and acrimonious divorce case was in train when the decision by one director to end the employment of the Complainant occurred. The rationale for that decision it was argued related to the fact that the divorce would give rise to external scrutiny, and it was now necessary to make good deficiencies and irregularities such as the payment of wages to the Director’s nanny.

However, no evidence was provided to show that in fact it was irregular or unlawful for the Company to provide childcare services and in fact many companies provide childcare services, while more likely to be in the form of an onsite creche, it still is a service provided to mind employees children. It is the case that this arrangement was tailored to meet the needs of two directors; however, that does not make it unlawful. It may be viewed as exceptional or a service that few employees enjoy; however, exceptional does not make the arrangement unlawful or mean the contract cannot be an employment contract.

It was also argued the Complainant’s right to work in Ireland was a consideration by the father when deciding to stop paying the Complainant through payroll. It was alleged as she is a Russian citizen, the Complainant may not be working legally. The Complainant has in fact resided in Ireland for many years and was married to an EU National. While now divorced she has obtained rights of residency personal to her and no evidence has been adduced to show that she is prevented from working. In fact, the evidence presented shows that she was allowed to work and continues to work for the Company.

(v) Finally, it should be determined whether there is anything in the

particular legislative regime under consideration that requires the court

to adjust or supplement any of the foregoing

I have considered relevant legislative regimes regarding employment status and the right to work in Ireland. On the facts the Complainant has obtained legal rights to work as an employee.

The Company has continued to pay the Complainant through a different account primarily arising from the disagreement between two directors whose marriage is pending a divorce court ruling. In these circumstances the change in payment through a normal payroll account to a separate company account does not negate the employment nexus between the Complainant and the Respondent employer.

Arising from this conclusion I determine that the employment of the Complainant has in fact continued to the date of this hearing and she is an employee of the Company.

There are 3 Complaints before me:

CA-00059177-003: No evidence has been presented to support a claim under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 and therefore I must find that this complaint is not well founded.

CA-00059177-002: The Complainant claims that she did not receive a statement in writing on her terms of employment and in the related complaint:

CA-00059177-004: that she did not receive a statement of her core terms in writing under the Terms of Employment.

On the evidence I have determined that the Complainant is an employee. No contract of employment or statement has been provided where I could conclude that the following provisions have been complied with:

3.—(1) An employer shall, not later than one month (previously 3 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, that is to say—

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days 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, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014)

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week;

In addition, section 6 relates to existing employees. The most recent request for the relevant information is contained in the complaint form received on the 2nd of October 2023. The defence of the Respondent rests on the employment status of the Complainant. The Respondent stated that the employment ended in June 2022 and therefore no liability arises; however, I have determined that she is an employee.

I note that section 6 states:

Existing contracts of employment.

6.—(1) Where, before the commencement of this Act, an employee has entered into a contract of employment with an employer, then, the employer shall, if so requested by the employee, furnish to the employee a statement containing the particulars specified in subsections (1) and (1A) of section 3 and, if so requested by the employee, there shall be added to the statement the particulars specified in section 4.

(2) An employer shall, within 2 months after the employer has been required to do so under subsection (1) furnish to the employee concerned a written statement in accordance with that subsection.

The maximum compensation that can be awarded under section 3 is 4 weeks remuneration:

in relation to a complaint of a contravention under change section 3, 4, 5, 6, 6D, 6E, 6F, or 6G, ] and without prejudice to any order made under paragraph (e)] order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

CA-00059177-002: The Complainant claims that she did not receive a statement in writing on her terms of employment. That most recent request is contained in the complaint form sent to the Commission on the 2nd of October 2023 and forwarded to the Respondent. This complaint is well founded as no information has been received as prescribed at section 3 (1) based on a monthly gross salary of €2166.66 I award €950 in compensation for this breach.

CA-00059177-004: that she did not receive a statement of her core terms in writing under the Terms of Employment. That most recent request is contained in the complaint form lodged with the Commission on the 2nd of October 2023. This complaint is well founded as no information has been received by the employee as prescribed at section 3(1A), and I award €950 in compensation for this breach.

I also require that the Respondent to provide the following information to the Complainant within 1 week of the date of this decision:

(a) the full names of the employer and the employee;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week;

I also require the Respondent to provide the following information to the Complainant within 4 weeks of this decision:

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i)

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

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.

There are 3 Complaints before me.

CA-00059177-002: The Complainant claims that she did not receive a statement in writing on her terms of employment and in the related complaint:

CA-00059177-004: that she did not receive a statement of her core terms in writing under the Terms of Employment (Information) Act 1994.

(a) the full names of the employer and the employee;

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week;

I note that section 6 states:

Existing contracts of employment.

(2) An employer shall, within 2 months after the employer has been required to do so under subsection (1) furnish to the employee concerned a written statement in accordance with that subsection.

The maximum compensation that can be awarded under section 3 is 4 weeks remuneration:

I have determined that the Complainant’s employment continued after June 2022 and in fact did not end albeit how she was paid did. While she was removed from payroll she still was working under a contract of employment, provided childcare services to the Company and in exchange received payment.

CA-00059177-002: The Complainant claims that she did not receive a statement in writing on her terms of employment. That most recent request is contained in the complaint form sent to the Commission on the 2nd of October 2023 and forwarded to the Respondent. This complaint is well founded as no information has been provided as prescribed at section 3 (1) based on a monthly gross salary of €2166.66 I award €950 in compensation for this breach.

I also require that the Respondent to provide the following information to the Complainant within 1 week of the date of this decision:

(a) the full names of the employer and the employee;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working week;

I also require the Respondent to provide the following information to the Complainant within 4 weeks of this decision:

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i)

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

Dated: 11-10-24

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Employment Status-Contract Information