WORKPLACE RELATIONS COMMISSION CASE CONCERNING THE EMPLOYMENT RIGHTS OF AU PAIRS: McCORMACK v GENEROSO
The case in question concerns an appeal by the employers, Ms Bernardine & Thomas McCormack against the Decision of an Adjudication Officer in the Labour Court.
Facts of the Case:
The AU pair in this case, a Brazilian national, came to Ireland on a Stamp 2 visa for the purpose of learning English. This Stamp 2 allowed her to work a maximum of 20 hours a week during term time, and 40 hours outside of term time. She was hired as an AU pair by the employers, Mr and Ms McCormack in February 2016. Ms Generoso was paid €150 a week and was provided with bed and lodgings. Ms Generoso’s effective hourly rate was €2.78 per hour.
During her time as an AU pair Ms Generoso worked 54 hours a week. She was required to work from 7am-5pm, as well as four hours of babysitting for her employers.
In July 2016, Ms Generoso gave Mr and Ms McCormack two days notice that she would be resigning. She stated that this was due to her poor working conditions.
Mr McCormack then asked Ms Generoso for four weeks pay, which was €540. In Court while giving evidence, Mr McCormack stated that this was because at the start of Ms Generoso’s employment she was told that four weeks’ notice was required.
Ms Generoso then gave Mr McCormack €510, which was all the money she had. She then borrowed €30 from a friend to make up the difference.
Following her resignation, Ms Generoso took legal proceedings against her employers under the Terms of Employment (Information) Act, 1994, where it was held that the Respondent was in breach of the Act by not providing the Complainant with a written contract of employment. That decision was not appealed.
Labour Court Proceedings:
Ms Generoso brought a claim under the 1991 Act to the Workplace Relations Commission on in September 2016 in which she alleged that the €510.00 acquired by Mr McCormack was unlawfully deducted from her wages.
The Court found that Ms Generoso was never given a written contract of employment. Under the Minimum Notice and Terms of Employment Act, 1973 at Section 6 an employee is obliged to give an employer one week’s notice when terminating employment if they have service of 13 weeks or more. This Act, the Court found, does not provide the employer with a remedy for when this is not complied with, nor does it allow for the taking of an unlawful payment by the employee to the employer.
In considering that the €510 given to the employer was unlawful, the Court referred to Section 5 of the 1991 Act which states that a payment can only be lawful, in respect of an omission on the part of he employee, if it is provided by the contract of employment or law. The Court found that payment in respect of Ms Generoso’s omission was not required by law or by contract.
In summary the Court found that the payment of €510 was not consented to by the Complainant, and found that the Respondents breached the 1991 Act when they demanded this unlawful payment, with the Court ordering the Respondents to repay the €510.00 in discharge of Ms Generoso’s claim.
The respondents appealed the above decision on mostly technical grounds, with one of the most interesting grounds of appeal being that the Complainant had no entitlement to make the complaint to the Labour Court under the 1991 Act because she was working under an illegal contract. It was submitted that the contract was illegal because Ms Generoso worked an average of 54 hours a week, which was in excess of her permitted hours under Stamp 2, with legal representation for the Respondents relying on Amjad Hussein v The Labour Court IEHC 364 where it was held that the Labour Court could not lawfully entertain an application for leave in respect of an employment contract which was substantially illegal.
This ground of appeal was wholly rejected by the Labour Court. It was found that Ms Generoso entered into a valid contract of employment, and that this contract could not be rendered illegal by the amount of hours her employers required her to work. The Court also distinguished this case from the case of Hussein, where the employee in that case Mr Younis had continued to work following the expiry of his work permit which was a criminal offence.
The Court then determined that Ms Generoso was owed arrears of wages in the amount of €4,947.05 in discharge of her claim.