Bernardine McCormack and Thomas McCormack (Represented by Richard Grogan & Associates) v Dayana Jonson Goncalves Generoso (Represented by Mr Michael Halpenny BL Instructed by Mrci)
| Jurisdiction | Ireland |
| Judgment Date | 23 January 2018 |
| Judgment citation (vLex) | [2018] 1 JIEC 2303 |
| Date | 23 January 2018 |
| Court | Employment Appeal Tribunal (Ireland) |
| Docket Number | ADJ-00004900 CA-00006994-005,DETERMINATION NO.PWD181,FULL RECOMMENDATION |
Labour Court (Ireland)
FULL RECOMMENDATION
PW/17/57
DETERMINATION NO.PWD181
ADJ-00004900 CA-00006994-005
Chairman: Ms Jenkinson
Employer Member: Mr Marie
Worker Member: Ms Treacy
SECTION 7(1), PAYMENT OF WAGES ACT, 1991
1. Appeal of Adjudication Officer's Decision Numbers: ADJ-00004899 and ADJ-00004900.
2. This is an appeal of an Adjudication Officer's Decisions made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 12 January 2018 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Determination of the Court:
This is an appeal by Ms Bernardine & Thomas McCormack against the Decision of an Adjudication Officer ADJ-00004899, CA-00006862-003, ADJ00004900, CA-00006994-005, in a claim by Ms Dayana Jonson Goncalves Generoso under the Payment of Wages Act 1991 (the 1991 Act). In this Determination Ms Bernardine & Thomas McCormack are referred to as “the Respondent” and Ms Dayana Jonson Goncalves Generoso is referred to as “the Complainant”.
Mr Richard Grogan, Solicitor, Richard Grogan & Associates, Solicitors, on behalf of the Respondent, confirmed for the Court that Ms Bernardine & Thomas McCormack were jointly and severally liable to the Complainant as her employer.
The Adjudication Officer found that the claim was well founded and she awarded the Complainant the sum of €510.00 under the 1991 Act.
The Complainant commenced employment with the Respondent as an au pair on 29 th February 2016. She resigned on 13 th July 2016. She was paid €150.00 per week and was provided with board and lodgings. In separate proceedings brought by the Complainant against the Respondent under the Terms of Employment (Information) Act, 1994, the Adjudication Officer held that the Respondent was in breach of the 1994 Act by not providing the Complainant with a written contract of employment. That decision was not appealed.
The Complainant referred a claim under the 1991 Act to the Workplace Relations Commission on 7 th September 2016 in which she alleged that €510.00 was unlawfully deducted from her wages.
The Complainant is Brazilian and was in the State having been granted a study visa by the relevant authorities, referred to as a Stamp 2 visa. The Complainant was enrolled in an eligible full-time course to study English. As a non-EEA qualifying student on a Stamp 2 visa she was permitted to work up to a maximum period of 20 hours per week in term time and up to 40 hours per week outside of term time, without being required to hold an employment permit.
In support of the Respondent's appeal under the 1991 Act, Mr Grogan submitted a number of preliminary points. He told the Court that he was focussing his appeal on a number of technical aspects as outlined below and was not defending the substantive complaint under the 1991 Act. The preliminary points raised were as follows:-
• (i) No valid complaint made Mr Grogan submitted that the Respondent had not received a copy of the Complainant's complaint form from the Director General of the Workplace Relations Commission (WRC) in the format submitted by the Complainant to the WRC, therefore the matter was not properly before the WRC (and the Court on appeal) and no valid complaint had been received.
• (ii) Complainant had no entitlement to make a complaint under the 1991 Act Mr Grogan submitted that the Complainant was working under...
To continue reading
Request your trial