FULL RECOMMENDATION
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : IVORY HOTEL - AND - RITA GEDMINAITE DIVISION : Chairman: Mr Duffy Employer Member: Mr Keogh Worker Member: Mr. Somers |
1. Appeal against Rights Commissioners Decision MW 7376/01/GF.
BACKGROUND:
2. The worker was employed by the Ivory Hotel in Waterford for a period of six months from June, 2001, to December, 2001. The worker claims she was told she would be employed as a receptionist earning £4.75 per hour, but when she arrived at the hotel she was employed as a waitress. Her salary as a waitress was £150 per week with an average week of 45 hours equating to £3.60 per hour. The worker claims that when she asked about the Minimum Wage Act that she was met with the threat of having her visa and work permit taken from her and deported. The worker claims that her request for a written contract and a statement outlining her salary was refused.
- The worker referred a claim under the National Minimum Wage Act, 2000, (the Act) to a Rights Commissioner for investigation. His Decision issued on the 9th of October, 2000, as follows: -
“In the absence of the complainant I agree to the respondents request to have the matter struck out.”
The worker appealed the Decision to the Labour Court on the 17th April, 2002. The Court heard the appeal under Section 27(1) of the National Minimum Wage Act, 2000, on the 31st July, 2002, in Waterford..
DETERMINATION:
The claimant failed to attend the hearing of this complaint before the Rights Commissioner for reasons which were explained to the Court. The Rights Commissioner proceeded with the hearing and agreed to the respondent's request to have the matter struck out. The claimant appealed to the Court and the complaint was heard de-novo.
In the course of the hearing the complainant raised a number of complaints in relation to her employment which, if made out, could involve infringements of legislation other than the National Minimum Wage Act 2000. These other complaints cannot be dealt with in the present proceedings.
Based on the submissions of the parties at the hearing and from documentary evidence submitted following the hearing the Court has established the position to be as follows:
- The claimant commenced employment with the respondent on 2nd June 2001. She was initially paid £136 (€172.68) per week and was provided with full board and lodgings. Whilst the contract of employment furnished to the claimant refers to the contract hours as being 39, an examination of her pay statements indicates that the standard hours were in fact 40 per week. This arrangement continued until 30th June 2001 when the claimant ceased to avail of board and lodgings. On week commencing 6th August her pay was increased to £150 (€190.46) per week.
At all material times the claimant was an experienced adult worker within the meaning of the Act.
- The Employer contended that the claimant was provided with full board and lodgings up to week commencing 6th August 2001. The claimant told the Court that she ceased to use that facility after 30th June 2001. Having considered all of the evidence, the Court believes that the claimant's recollection is most likely to be correct. Accordingly the Court finds as a fact that the claimant was not provided with full board and lodgings after 30th June 2001.
In respect of the period up to 30th June 2001, €54.13 per week should be added to the claimants weekly pay in respect of board and lodgings. This would mean that in that period the claimant's weekly wage, for the purpose of the Act was €226.81 or €5.67 per hour. At that time the minimum wage was €5.59 (£4.40) per hour. Since the amount paid to the claimant (taking account of board and lodgings)exceeded this amount, her claim in respect of the period up to 30th June 2000 must fail.
The claimant was paid at the rate of €172.69 (£136.00) for a 40 hour week between 30th June and 6th August. Her hourly rate was €4.32 (£3.40). The national minimum wage was then €5.97 (4.70) per hour. There is therefore a shortfall of €1.65 (£1.30) in respect of each hour worked by the claimant in this period.
Between 6th August and the date on which her employment terminated the claimant was paid €190.46 (£150) per week for a standard 40 hour week. Her hourly rate was therefore €4.76 (£3.75). The shortfall over this period was €1.21 (95p) per hour worked.
In addition the court is satisfied that the claimant incurred expenses of €150 in processing this claim and that those expenses are reasonable.
Determination.
The Court is satisfied that the complaint herein is well founded and that the decision of the Rights Commissioner should be set aside. Pursuant to Section 29(1) of the Act the following decision of the Court is substituted for the decision of the Rights Commissioner:
- That the claimant be awarded arrears of wages in the amount of €1047.05
- That the claimant be awarded €150 in respect of expenses incurred in processing this claim.
The respondent should therefore pay the claimant a total of €1197.05 in discharge of her claim.
Signed on behalf of the Labour Court
Kevin Duffy
09th September, 2002______________________
CH/MB.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Caroline Hayes, Court Secretary.