FULL RECOMMENDATION
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : GRACE SIGNS - AND - MARGARET WHELAN DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Carberry Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision MW11144/02/JH
BACKGROUND:
2. It is alleged that there was a tentative agreement between the parties that Margaret Whelan would become a partner in the Company once it was up and running. However, there was no written agreement between the parties to this partnership. The Company was incorporated on the 12th April, 2001 . Mr Grace and his wife were the directors of the Company. Ms Whelan states that she invested £6, 500 towards the purchase of stock and brought work to the Company to the value of £25, 000. She also claims that in the period from April, 2001 to September, 2001 she did not take a salary from the Company, but relied solely on her personal savings
In September, 2001 she requested a weekly salary and a net sum of £200 was agreed between the parties. Ms Whelan claims that she worked in excess of 43 hours per week and alleges that she has not been paid the minimum wage as provided for under the National Minimum Wage Act, 2000.
Management states that the arrangement was one of partnership and not an employer/employee relationship. The standard working week was 39 hours and not 43 hours as stated by the claimant.
The worker referred a claim under the National Minimum Wage Act, 2000 (the Act) to a Rights Commissioner for investigation. Her decision issued on the 3rd March, 2003, as follows:-
"On the basis of the submissions made and for the reasons set out in the foregoing I find Margaret Whelan has a valid complaint. The decision on this complaint is confined to 10 weeks between August and October 2001 and she is to receive the sum €2567.10 (€5..97x 43x10) plus a further €200 in expenses giving a total of €2767.10 in full and final settlement under the National Minimum Wage Act, 2000."
The Company appealed the decision to the Labour Court on the 14th April, 2003. The Court heard the appeal under Section 27(1) of the National Minimum Wage Act, 2000, on the 3rd September, 2003.
DETERMINATION:
Having considered the submissions of both parties the Court finds no reason not to concur with the Rights Commissioner 's findings and conclusions in MW11144/02/JH. Therefore, the Court upholds the Rights Commissioner's decision and rejects the employer's appeal.
The Court determines that the employer must pay the sum of €2,767.10 to Ms. Whelan. An order will be made in the claimant's favour in that amount.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th September, 2003______________________
LW/LWDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Larry Wisely, Court Secretary.