In two recent determinations about the same case, the Labour Court awarded a Brazilian au pair a total sum of €5,457.00, to be paid by the Irish couple that she worked for in Dublin. The award confirms that au pairs do have rights as employees in Ireland, and that the families that hire them have responsibilities as employers. This case follows a recent line of similar cases reinforcing the entitlement to these rights and responsibilities.
The importance of these cases will be highlighted this week again with the publication of "Pathway to a Quality Support and Assurance System for Childminding in Ireland" which is a Report of the Working Group on Reforms and Supports for the Childminding Sector (the Report). It is recommended in the Report that au pairs should currently remain outside the State's proposed childcare support programmes but that the Department of Children and Youth Affairs should give consideration to training and information support for family employers.
Ms Dayana Jonson Goncalves Generoso was studying in Ireland and held a Stamp 2 immigration visa (allowing her to attend a course and to work in casual employment up to 20 hours part-time per week during the term of her course and up to 40 hours per week outside of term time). She was employed as an au pair by Bernadine and Thomas McCormack between 29 February 2016 and 13 July 2016, working an average of 54 hours per week and being paid €150.00 per week plus board and lodgings.
After Mr and Ms McCormack returned from holidays in July 2016, Ms Generoso gave them 2 days' notice that she was going to leave their employment. Mr McCormack insisted that Ms Generoso had to give 4 weeks' notice and requested payment in lieu of this notice. Mr McCormack demanded a sum from Ms Generoso and in the end accepted the sum of €510.00 in lieu of notice (the total sum in her possession). Mr McCormack later told the Labour Court that he verbally informed Ms Generoso that she would have to give 4 weeks' notice of her termination of employment when she started, but admitted that she was not given an employment contract nor did she give her authorisation for deductions to her pay.
Ms Generoso brought several complaints to the Workplace Relations Commission regarding her employment conditions: under section 24 of the National Minimum Wage Act 2000, section 6 of the Payment of Wages Act 1991, section 27 of the Organisation of Working Time Act 1997 and section 7 of the of Terms of Employment (Information) Act 1994. These were determined on in two Adjudication Officer's (AO) Decisions (ADJ-00004099 and ADJ-00004900) dated 7 November 2017 awarding Ms Generoso sums for the failure of her employers to provide her with breaks, legal working hours, holiday pay and terms and conditions of employment, and also for not paying the minimum wage and for unlawfully deducting money from Ms Generoso in lieu of notice.
Labour Court Appeal Decision
Mr and Ms McCormack appealed the AO's awards of €510.00 awarded under the Payment of Wages Act 1991 and €1,444.00 awarded under the National Minimum Wage Act 2000 to the Labour Court.
The Labour Court looked at the nature of employment between Mr and Ms McCormack and Ms Generoso. In two separate determinations it held that Ms Generoso entered into a valid contract of employment with Mr and Ms McCormack as allowed under her Stamp 2 visa, and importantly that this contract could not be rendered illegal by the number of hours she was required to work.
The Labour Court held that Mr and Ms McCormack contravened the Payment of Wages Act 1991 by deducting the sum of €510.00, as they were not given consent by Ms Generoso to do so. The Labour Court upheld the AO's award of €510.00.
The Labour Court also held that Ms Generoso was not paid in accordance with the National Minimum Wage Act 2000, and after making calculations allowing for board and lodgings, substituted the AO's award and awarded Ms Generoso €4,947.05.
In our article focusing on a similar case published on 12 April 2016 entitled "Rights of Au Pairs as Employees?" we outlined that that particular judgment (by an AO) made it clear that au pairs had rights as employees under Irish law. We also outlined in detail our advice for families as to what particular legislation might apply to them when hiring au pairs, and pitfalls for them to watch out for.
By way of update to that article, these determinations by the Labour Court make it even clearer that au pairs have rights as employees in Ireland and families hiring them have corresponding responsibilities as employers. These responsibilities include providing proper written terms and conditions of employment, paying the employee the national minimum wage (which has increased to €9.55 per hour since 1 January 2018), ensuring the employee does not work more hours than allowed to, and ensuring that the employee has proper breaks, working conditions and proper holiday allowances. The case further highlighted that no pay should be deducted without consent from the employee.
In implementing recommendations of the Report this year, it would be useful to provide family employers with information and training clearly pointing out their rights and responsibilities as employers.