FULL RECOMMENDATION
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : ZEVAS COMMUNICATIONS LTD - AND - A WORKER DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision MW18184/04.
BACKGROUND:
2. The Worker was employed by Zevas Communications Ltd, Carrigaline, Co. Cork from the 15th August 2003 to the 31st of October 2003, and contends that he received no terms and conditions of employment or a written disciplinary procedure during his employment. The worker referred the matter to a Rights Commissioner for investigation and recommendation under the following acts:
- National Minimum Wage Act, 2000- Under this act the worker was seeking to have arrears of €441.44 plus expenses paid to him, this sum representing the difference between €5.29 per hour paid to the worker and the National Minimum Wage of €6.35 per hour.
Terms of Employment (Information) Act, 1994- The worker was seeking compensation for his employer not providing him with Terms and Conditions of Employment.
Organisation of Working Time Act, 1997- The worker was seeking compensation of €35.31 in respect of holiday pay owed to him and compensation of €49.53 in respect of the October bank holiday which fell during his employment and for which he received no pay.
The Employer did not attend the Rights Commissioner's hearing.
The Rights Commissioners findings issued on the 6th September, 2004, as follows:- National Minimum Wage Act, 2000 - Decision:
"In the absence of any evidence to refute the worker's case I find in favour and award him €441.44 in respect of his arrears and €60 in respect of his expenses. The award of €441.44 is subject to statutory deductions."
Terms of Employment (Information) Act, 1994- Recommendation:
"In the absence of any evidence to refute the worker's case I find in his favour and award him compensation of €990.60. €990.60 is equivalent to four weeks salary."
Organisation of Working Time Act, 1997- Decision:
"In the absence of any evidence to refute the worker's case I find in favour and award him €84.84 in compensation for the holiday pay and bank holiday pay owed to him."
The worker was named in the Rights Commissioner’s findings.
On the 17th September, 2004, the Employer appealed the Rights Commissioner’s Recommendation to the Labour Court in accordance with Sections 27(1) of the National Minimum Wage Act, 2000, 28(1) of the Organisation of Working Time Act, 1997. A Labour Court hearing took place on the 4th May, 2005.- National Minimum Wage Act, 2000 - Decision:
COMPANY'S ARGUMENTS:
3. 1.The Company refutes this claim as the worker was employed as a Part Time Sales Administrator with the Company which consisted of 25 hours per week as per the terms and conditions of his employment. The worker's hourly rate of pay was €6.71 while he was in training for his first month and €8.00 per hour thereafter. The "Weekly Time Records" which were presented to us by Employment Appeals are false and certainly were not authorised or signed off on by any member of the payroll/accounts/finance team or management. These "Weekly Time Records"documents are incorrect and do not reflect the actual or pre-agreed (as per the terms of his employment) hours worked by the worker during his period of employment with the Company.
WORKER'S ARGUMENTS:
4. 1. He was not given any Contract of Employment to sign, and he was not provided with any Terms and Conditions of Employment or indeed any written procedure during his short time with the Company. The only employment related document he received was a brief outline of the Acceptable Usage Policy of the Company pertaining to their Information and Communications System. This document does not constitute Terms and Conditions of Employment nor does it substitute for them.
2.The pay which the worker subsequently received from the Company varied month to month but on each occasion it was below the National Wage Agreement of €6.35 per hour which was in force at the time. Payslips were not automatically given to the worker, he had to make a specific request for them.
DETERMINATION:
The claimant brought proceedings before a Rights Commissioner claiming infringements of a number of employment rights statutes in respect of his employment, including the National Minimum Wage Act, 2000, the Terms of Employment (Information) Act, 1994 and the Organisation of Working Time Act 1997.
The respondent did not attend before the Rights Commissioner for reasons which were explained to the Court. The respondent employer appealed the decision of the Rights Commissioner.
The Employer disputed the weekly time records submitted by the worker to the Right’s Commissioner, stating that they did not reflect the actual or pre-agreed hours of work.
At the Right’s Commissioner hearing the worker produced attendance records, which he had decided to keep during the period of his employment, as he was concerned about his rate of pay and was advised to keep such records, and as it was his belief that the Employer did not keep records of hours worked. Additionally, when he requested information from his employer on his rates of pay, he received no replies.
The Employer did not produce any records at the hearing to substantiate their position.
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 Rights Commissioner found in favour of the worker under the National Minimum Wage Act, 2000 and recommended accordingly.
The Rights Commissioner also awarded the claimant separate compensation for an infringement of the Terms of Employment (Information) Act 1994. Appeals under this Act are made to the Employment Appeals Tribunal and not the Labour Court. This aspect of the employer’s appeal cannot be dealt with in the present proceedings. Therefore, this appeal is concerned only with the claims under the National Minimum Wage Act, 2000.
Having considered the submissions of both parties the Court finds no reason not to concur with the Rights Commissioner 's findings and conclusions in MW18184/04. 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 €441.44 plus €60.00 expenses in respect of his claim under the National Minimum Wage Act, 2000
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
23rd June, 2005______________________
JO'CDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.