FULL RECOMMENDATION
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : RINK AIR CONDITIONING LIMITED - AND - MR MICHAEL STRANG ANDERSON DIVISION : Chairman: Mr Duffy Employer Member: Mr Pierce Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision MW4640/01/TB.
BACKGROUND:
2. The dispute concerns a claim by an employee who was employed as a sales engineer from the 8th of January, 2001, for payment of the Minimum Wage. He states that he was provided with a company car, but was not informed that he would be paid on a commission only basis until he was given a contract of employment to sign. He refused to sign it and, when local discussions failed to resolve the issue of his remuneration, he requested the assistance of the Department of Enterprise, Trade and Employment.
The dispute was then referred to a Rights Commissioner for investigation. His Decision issued on the 22nd of June, 2001, as follows:
“Decision
On the basis of the employment contract the claimant is clearly an employee and is covered by the terms of the minimum wage legislation.
The contract provided for a 5 day 40 hour week. On that basis the claimant should have been paid 23 weeks of a minimum of £176 per week. He has only received £185.00. I award him £3,863 which is the balance due to him.”
The Company appealed the Decision to the Labour Court on the 27th of June, 2001. The Court heard the appeal on the 12th of October, 2001, in accordance with Section 27(1) of the National Minimum Wage Act, 2000.
COMPANY'S ARGUMENTS:
3. 1. The employee concerned did not submit a written request for his rate of pay.
2. The employee did not submit timesheets to verify the number of hours worked. The Company disputes the claim that he would have worked 40 hours per week.
3. The Rights Commissioner did not take into account four days sick absence or annual leave taken by the employee.
4. The Company disputes the figure of £3,863 (4,905 Euro) awarded by the Rights Commissioner. The employee was paid commission amounting to £360 ( 457.11 Euro), and not £185 (234.90 Euro) as stated in the Decision.
WORKER'S ARGUMENTS:
4. 1. When the employee was interviewed for the position, he was not told that his remuneration would be on a commission only basis.
2. The employee was unhappy with the terms of the contract of employment and refused to sign it. Despite many requests, the Company refused to pay him the minimum wage of £4.40 ( 5.59 Euro) per hour.
3. At the Rights Commissioner’s hearing the Company agreed to restructure the claimant’s remuneration to take account of the Minimum Wage legislation. It did not do this, and the employee left the company on the 20th of July, 2001.
4. The employee was not asked to provide weekly time sheets during his employment with the company, but was requested to do so following the Rights Commissioner’s hearing.
5. The Company should pay all outstanding monies due for the duration of the worker’s employment.
DETERMINATION:
On the basis of the additional information provided by the employer in the course of the appeal, the Court is satisfied that the following adjustments should be made to the calculation on which the Decision of the Rights Commissioner was based:
Amount Paid to the Claimant
The amount actually paid to the claimant in the period 8th January (the date on which his employment commenced) and the 12th June (the date of the Rights Commissioner hearing) was £360 (457.11 Euro).
Absence from Work
The claimant accepted that he was absent from work for four days during the period before the Rights Commissioner hearing. A total deduction of £140.80 (178.78 Euro) should be made in respect of these absences.
Taking account of these adjustments, the amount due to the claimant is as follows:
23 Weeks @ £176 (223.47 Euro) per week = £4,048 (5139.90 Euro)
Less £360 (457.11 Euro) already paid,
Less £140.80 (178.78 Euro) in respect of absence,
Total Due£3,547.20 (4504.01 Euro)
The Decision of the Rights Commissioner is amended to show that the amount due and owing to the claimant is £3,547.20 (4504.01 Euro). An order will be made in the claimant's favour in that amount.
Signed on behalf of the Labour Court
Kevin Duffy
24th October, 2001______________________
D.G./C.C.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Dympna Greene, Court Secretary.