Bernardine McCormack and Thomas McCormack (Represented by Richard Grogan & Associates) v Dayana Jonson Goncalves Generoso (Represented by Mr Michael Halpenny BL Instructed by MRCI)

 
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Labour Court (Ireland)

FULL RECOMMENDATION

MWA/17/8

DETERMINATION NO.MWD181

ADJ-00004900 CA-00006994-001

PARTIES:
Bernardine McCormack and Thomas McCormack (Represented by Richard Grogan & Associates)
and
Dayana Jonson Goncalves Generoso (Represented by Mr Michael Halpenny BL Instructed by MRCI)
SUBJECT:
1

1. Appeal of Adjudication Officer's Decision Numbers: ADJ-00004899 and ADJ-00004900.

BACKGROUND:
2

2. This is an appeal by the Employer against a Decision of the Adjudication Officer. The Adjudication Officer issued her Decision on 7 November 2017. The Employer appealed the Decision to the Labour Court and the appeal was heard on 12 January 2018. The following is the Determination of the Court:

DETERMINATION:
3

This is an appeal by Ms Bernardine & Thomas McCormack against the Decision of an Adjudication Officer ADJ-00004899, CA-00006862-001, ADJ00004900, CA-00006994-001, in a claim by Ms Dayana Jonson Goncalves Generoso under the National Minimum Wage Act 2000 (the 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”.

4

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.

5

The Adjudication Officer found that the claim was well founded and she awarded the Complainant the sum of €1,444 under the Act.

Background
6

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 Act by not providing the Complainant with a written contract of employment. That decision was not appealed.

7

The Complainant referred a claim under the Act to the Workplace Relations Commission on 7 th September 2016 in which she alleged that she was underpaid by reference to the national minimum wage established by the Act. The claim relates to the full duration of the Complainant's employment.

8

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.

Summary of the Respondent's Case
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In support of the Respondent's appeal under the 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 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) Section 23 not complied with

    Mr Grogan submitted that the Complainant had not complied with Section 23 of the Act and therefore asserted that the Court had no jurisdiction to hear the case. He accepted that the Complainant sent a letter dated 29th July 2016 to the Respondent requesting a written statement of her average hourly rate for all pay reference periods between the dates 29th February 2015 and 13th July 2016, which request she...

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