FULL RECOMMENDATION
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : JOHN MCNAMEE T/A LAOIS EDUCATION SUPPLIES - AND - SIOBHAN O'CONNOR DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision MW11330/02/LM.
BACKGROUND:
2. The appeal concerns a worker who was employed by the Company from September, 2001 to July, 2002 and worked a five day 40 hour week. She did not receive a written contract of employment. The worker claims that during the period of her employment she was underpaid weekly as follows:
by £38 (€48.25) per week from17th September, 2001 to 7th January, 2002,
by €48.80 per week from 8th January, 2002 to 28th March, 2002
by €38.80 per week from 29th March, 2002 to 31st July, 2002
The worker claims that this is in contravention of the terms of the National Minimum Wage Act, 2000. The Company rejected the claim on the basis that the worker was paid a rate appropriate to a trainee (i.e. 80% of the National Minimum Wage rate). The worker also claimed that she sought a written statement outlining her rate of pay and hours worked but that she did not receive a statement. The Company maintained that it did not receive such a request. The dispute was referred to a Rights Commissioner for investigation. On the 11th February, 2004 the Rights Commissioner issued her decision as follows:
"As no evidence was presented by the claimant to support her claim the claim fails"
Although the claimant was notified of the date and time of the Rights Commissioner's hearing she claimed that her failure to attend was due to a misunderstanding in relation to the date and time of the hearing. On the 14th March, 2004 the claimant appealed the Rights Commissioner's decision to the Labour Court. The Court heard the appeal on the 17th August, 2005
DETERMINATION:
Based on the submissions of the parties at the hearing and from documentary evidence submitted, the Court has established the position as follows:
- The appellant commenced employment with the respondent on 17th September 2001 until 30th July 2002. She was initially paid £150 (€190.46) per week.
Hours Worked.
The employer stated to the Court that the appellant's working hours were 40 hours per week, inclusive of two fifteen minute unpaid tea breaks, each day giving a net of 37. 5 hours per week. Having listened to the evidence advanced and in the absence of a written contract of employment, the Court accepts the appellant's contention that her hours were 40 hours per week.
Monies Paid.
In the absence of a written statement from the employer as requested by the appellant pursuant to Section 23 of the Act, the Court must rely on details supplied by the appellant, of monies paid during the period of her employment. The employer submitted details from the P35 for the period from 1st January 2002 to 30th July 2002; these figures confirm the appellants record of gross earnings for the period.
Training or Full Time.
The appellant, on the other hand, stated that she was 23 years old at the time of recruitment, she had experience working in another bookshop and she did not receive structured training for the duration of her employment period as submitted by the employer. The Court is not satisfied that the entire period of her employment can be considered as a training period, within the meaning of S.I. No.99 of 2000. However, the Court is satisfied that the first three months of her employment can be considered as coming within this definition and in accordance with Section 16 of the Act, determines that training rates should have been applied as follows:
- In respect of the period up to 17th December 2001, the Court finds that for the purpose of compliance with the Act, Ms O'Connor should have been paid €4.48 per hour for the first month, €4.77 per hour for the second month and €5.37 per hour for the third month. In fact she was paid €4.76 per hour for this entire period ; therefore, there was a deficit of €107.38 in respect of this period.
- In respect of the period from 17th December 2001 to 30th July 2002 at which time the minimum wage for an experienced adult worker was €5.97 (£4.70) per hour, the Court finds that the appellant should have been paid this rate. Therefore, there was a deficit of €726.00 for the period up to 28th March 2002 and €669.30 in respect of the period up to 30th July 2002.
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 appellant be awarded arrears of wages in the amount of €1502.68.
Due to the particular circumstances involved in this case, the Court has decided not to make an award in respect of the expenses incurred in processing her appeal.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
8th September 2005______________________
todDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.
MWA/04/4DETERMINATION NO. MWD053
(MW 11330/02/LM)
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000
PARTIES:
JOHN MCNAMEE T/A LAOIS EDUCATION SUPPLIES
-AND-
SIOBHAN O’ CONNOR
SUBJECT:
1. Appeal against Rights Commissioner’s Decision MW 11330/02/LM.
BACKGROUND:
2. An application has been made by the employee that Determination No. MWD053 does not correctly state the name of the employer, the correct name being Laois Education Supplies Limited.
DETERMINATION
In exercise of its powers under Section 39(2) of Organisation of Working Time Act, 1997 as amended by Section 45 of the National Minimum Wage Act, 2000, the Court determines that the name of the employer in Determination No. MWD053 shall be changed from John Mc Namee T/A Laois Education Supplies to Laois Education Supplies Limited.
Signed on behalf of the Labour Court
Caroline Jenkinson
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12th December, 2005Deputy Chairman