FULL RECOMMENDATION
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : MANSION HOUSE LIMITED TRADING AS FADO RESTAURANT - AND - JOSE IZQUIERDO DIVISION : Chairman: Mr McGee Employer Member: Mr Carberry Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision MW16832/03/MMG.
BACKGROUND:
2. The worker commenced employment as a waiter with Fado Restaurant in November, 2002. The rate of pay as per his contract was €39.09 per shift. The worker, believing his pay to be below the National Minimum Wage, on the basis of his not being paid for all hours worked, says he requested a statement of his hourly rate of pay from the Company. The Company claim that the worker never made such a request.
The worker subsequently referred a claim of underpayment under the National Minimum Wage Act, 2000 (the Act) to a Rights Commissioner for investigation. His decision issued on the 26th of April, 2004, as follows:
"Based on the evidence and noting in particular that Mr Izquierdo did not comply with the act in seeking his statement from the company my decision is to find on behalf of the company."
The worker appealed the Decison to the Labour Court on the 2nd of June, 2004.
The Court heard the appeal under Section 27(1) of the National Minimum Wage Act, 2000 on the 21st of July, 2004. The following is the Court's determination:
THE LAW:
Section 23(1)
Under Section 23(1) of the Act, an employee may request from his or her employer a written statement of his/her average hourly rate of pay for a pay reference period. It should be noted that whilst the statement must be furnished in writing, the request for such a statement can be communicated verbally.
There is contradictory evidence from the claimant and the employer as to whether such a statement was sought. The claimant alleges that he sought such a statement from the “Secretary to the Company”. The Company says that the claimant should have raised the matter under the grievance procedure if he was experiencing any difficulty in obtaining this information and that he did not do so.
Having considered the evidence of both parties on this point the Court is satisfied, as a matter of probability, that the claimant did request a statement in accordance with the Section 23(1) and that the employer failed to provide the statement.
For the sake of completeness the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimants right to re-enter the same complaint having complied with the said section. It is the Court's view that a decision dismissing the claim on its merits on the basis of non-compliance with this section alone is not appropriate nor is it warranted by any provision of the Act.
Section 9(1) (a)
Under Section 9(1)(a) of the National Minimum Wage Act, 2000 (The Act) an employee is only obliged to keep a written record of his/her hours of work where his/her hours of work are not controlled by the employer. This is not the case in a restaurant situation.
The employer also contended that an inspection of its premises was carried out by an inspector appointed pursuant to Section 33(1) of the Act. The Court accepts that such an inspection was conducted but it is not satisfied that this inspection related specifically to the complaint now before the Court. Accordingly, the Court holds that the provisions of Section 24(2)(b) are not applicable and that the complaint was properly before the Rights Commissioner and is now properly before the Court in this appeal.
DETERMINATION:
The claimant has sought a sum of €1314.00 alleging that the number of unpaid hours he actually worked (on average) effectively lowered his hourly rate to €5.26 per hour. He claims to have worked a total of 1205 hours in total at an average underpayment of €1.09 against the minimum wage.
The employer alleges that the claimant was paid €6.35 for all hours worked and is not owed any money.
Rosters provided to the Court by the employer subsequent to the hearing were inconclusive, as they did not indicate actual finishing times (the basis of the parties’ disagreement). The Court notes that in the claimants contract, it was stated that employees would sign in and out on forms provided in order to verify an accurate record of attendance. This did not happen nor by the employer’s admission, was it enforced.
Section 22(3) of the Act provides, in effect, that where an employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, in proceedings before the Court the onus of proving compliance with that provision lies with the employer. In this case the Court is satisfied that the employer has failed to maintain adequate records to show that the Act was complied with in respect of the claimant and thus carries the burden of rebutting the evidence given by the claimant.
The Court has considered all the evidence before it in this case and finds that the employer has failed to prove, on the balance of probabilities, that it complied with the Act in respect of the claimant during the period to which his claim relates. The Court has, however, some difficulty in quantifying the level of arrears due to the claimant. On balance the Court believes that the amount claimed is overstated. The Court has measured the amount due to the claimant by way of arrears of payments under the Act at €650 and makes an award in favour of the claimant in that amount.
Accordingly the Court determines that the decision of the Rights Commissioner be set aside and substituted with this determination.
Signed on behalf of the Labour Court
Raymond McGee
30th August, 2004______________________
MG/BRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.