Key Learnings
In Ireland internships, work placements or work experience is not regulated except for those under certain schemes. The Workplace Relations Commission may deem an individual an Employee by virtue of the type of work they are carrying out. Employers must ensure there is sufficient educational benefit and alignment to an educational course to mitigate the risk of this, ensuring that the appropriate agreement is in place which specifically outlines the individual is not considered an Employee.
In this case the Complainant worked a number of weeks without pay and other core entitlements, such as annual leave, and was refused compensation by her Employer. Through evidence the Respondent Company was found to have established an employment relationship and therefore the protections under the Payment of Wages Act, 1991 for the payment of wages applied.
Where there is a clear employment relationship it is essential that Employers are fully compliant with legislative requirements and ensure payment of at least the minimum wage for the correct amount of hours worked is made, in order to avoid the risk of such a claim being made against them.
Background
The Complainant in this matter worked for the Respondent Company for a period of 6 weeks.
The Complainant submitted complaints alleging non-payment of wages, failure to pay the minimum wage, and failure to pay outstanding holidays on the 13th of May 2022.
A hearing was held on the 14th of February 2023. The Complainant attended and gave evidence under oath. The Respondent did not attend the hearing. Having reviewed the correspondence on file and the previous engagement between the parties, they were on notice.
Summary of Complainant’s Case
The Complainant was told about the Respondent Company by a friend and was told they needed someone to work in the office. She arranged to come in and meet a Director of the Respondent. She was interviewed and given a computer competency test to do. She was successful and was told to start the next day. She agreed to a rate of €12 an hour with the Respondent.
She was employed for 3 days a week because she still had to attend college. Generally, she started at 8.30 am and finished at 6 pm or 7 pm with a 30-minute break. She confirmed that she was allowed to take this break and not work through it.
The Respondent Company hired and placed agency nurses and other healthcare workers. The Complainant’s duties involved the onboarding of agency staff. She checked applicant’s CV’s, did social media searches, reviewed immigration papers, and generally liaised with applicants who spoke Portuguese.
The Complainant was not given clear information about her expected pay date. She was under the impression that various onboarding and revenue measures were required before she could get paid. She expected that matters would be delayed until the December pay date but when it became clear she would not get paid then she suspected that she would not be paid for her work with the Respondent and left the Respondent’s service on the 20th of December 2021.
The Complainant continued to chase the Respondent for her outstanding wages. She met the Director in January and was offered €500 if she signed a compromise agreement. She refused as she wanted her full wages.
The Complainant provided emails from the Respondent where, after being contacted by Citizen’s Information, they asserted the Complainant was an intern or on unpaid work experience. The Complainant referred to text message exchanges which demonstrate that this is not the case and that she was hired to do a job and that the Respondent was promising to pay her up until 29th of December 2021.
The Complainant is clear that she had applied to the Respondent to get a job and agreed on a rate of pay and hours. The Respondent had only ever required her to do normal working tasks, she was not there for work experience.
The Complainant worked a total of 154 hours for the 6 weeks that she was employed by the Respondent. For this, she is owed €1848.
Summary of Respondent’s Case
The Respondent did not attend the hearing.
Findings and Conclusions
The Complainant provided detailed evidence of the hours she worked, the breaks taken, and the duties she carried out during the working day.
This oral evidence together with the text messages provided demonstrated that a contract of employment existed between the parties and that the agreed rate of pay was €12 per hour and that the Complainant would work three days a week for the Respondent. She worked 5 full weeks, averaging approximately 27 hours per week, and one day on the 6th week after which she resigned.
The Complainant’s working hours came to 154 over the 6-week period. However, the Complainant’s own evidence is that she received a 30-minute unbroken break every day she worked. This brings the total working hours to 146.
The failure to pay the Complainant her outstanding wages constituted a prohibited deduction as per Section 5 of the Payment of Wages Act.
The Adjudicator calculated the total wages owed to the Complainant as €1752.
The Complainant was entitled to receive any outstanding annual leave on the cessation of her employment as provided for under section 23 of the Organisation of Working Time Act 1997.
The Adjudicator calculated the Complainant’s average weekly pay based on the 5 full weeks she worked as approximately €327 per week. It was also calculated that her accrued annual leave at the time of her resignation would have only come to approximately 11 and half hours of pay or €138.
Having regard to all of the circumstances, in particular the uncontroverted evidence of the Complainant that the Respondent, through misrepresentations, got her to work a number of weeks without providing pay and other core entitlements, such as annual leave, and has since refused to compensate her, the Adjudicator has the view that it is just and equitable to award compensation of 4 weeks’ pay or €1308 for this breach.
Decision
The Adjudicator found that the complaint well founded and directed the Respondent to pay the Complainant compensation in the amount of €1752 for unpaid wages and €1308 compensation for non-receipt of outstanding annual leave on the cessation of her employment in December 2021.