FULL RECOMMENDATION
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : O'SULLIVAN & MAGUIRE LTD. T/A THE GEORGIAN HOTEL - AND - FATIMA OULIDI (REPRESENTED BY HAROLD WATERMAN & COMPANY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioners Decision R-034016-Mw-05/TB.
BACKGROUND:
2. The worker was employed as a housekeeper at The Georgian Hotel from February 2001 until December 2004.
In February 2004 the Minimum Wage was €7 per hour. The worker believed she was not receiving the minimum wage and endeavoured to raise the issue with her employer but to no avail.
In April 2005 a request was made on her behalf for a written statement of her reckonable pay, working hours and average hourly rate of pay. The Company did not provide the information and did not consider the request to be for a valid period under the Act.
The worker referred a claim of underpayment under the Minimum Wage Act, 2000 (the Act) to a Rights Commissioner for investigation. His decision issued on 7th October 2005, as follows:
“Based on the evidence at the hearing I do not uphold this complaint.”
The worker appealed the Decision to the Labour Court on the 3rd November 2005.
The Court heard the appeal under Section 27(1) of the National Minimum Wage Act, 2000 onthe 27th April, 2006. The following is the Court's Determination:-
DETERMINATION:
In this case the Claimant produced pay slips with which she had been provided by the Respondent in respect of a number of weeks during the relevant reference period. These pay slips were not produced to the Rights Commissioner. These pay slips record that the Claimant's hours of work were 40 per week. The records produced by the Respondent to the Rights Commissioner and again produced to this Court recorded the Claimant's normal working hours as being 35 per week.
The Court took sworn evidence from the Claimant in the course of which she said that her normal working hours were from 9am to 5pm, five days per week. She took one 1/2 hour break at 3pm. This break was taken on the Respondent's premises.
The representative of the Respondent told the Court that the records were compiled on the basis that the Claimant received a one-hour unpaid break per day. However there was no witness available from the Respondent who could give direct evidence as to the hours actually worked by the Claimant. Accordingly, in the absence of any evidence in rebuttal of the Claimant's testimony the Court must accept the accuracy of what she told the Court in her sworn evidence.
In essence the Respondent's case is that the break which the Claimant was given during the working day should not be reckonable as working time and that this should be disregarded in computing her hourly rate.
Section 8(1) of the National Minimum Wage provides as follows:-
8.-(1) for the purpose of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act, but subject tosection9, "working hours", in relation to an employee in a pay reference period, means-
(a) the hours (including a part of an hour) of work of the employee as determined in accordance with-
(i) his or her contract of employment
(ii) any collective agreement that relates to the employee,
(iii) any registered Employment Agreement that relates to the employee,
(iv) any Employment Regulation Order that relates to the employee,
(v) any statement provided by the employee's employer to the employee in accordance with section 3(1) of theTerms of Employment (Information) Act, 1994,
(vi) any notification by the employee's employer to the employee undersection 17 of the Organisation of Working time Act, 1997,
(vii) section 18 of the Organisation of Working Time Act, 1997, or
(viii) any other agreement made between the employee and his or her employer or their representatives that includes a provision in relation to hours of work,
or
(b) the total hours during which the employee carries out or performs the activities of his or her work at the employee's place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work,
The Claimant was not provided with a written contract of employment. Nor was she provided with a statement particularising the terms of her contract, including her hours of work and the breaks to which she was entitled. Accordingly the only record of her hours of work with which the Claimant was provided was her pay slips. On this basis the Court accepts that the working hours agreed between the Claimant and the Respondent were 40 per week. The Court further accepts that the 1/2 hour break with which the Claimant was provided was part of her paid working hours within the meaning of Section 8 of the Act.
Prior to 1st February 2004 the Claimant was paid the correct minimum rate, namely
€6.35 based on a 40 hour week. With effect from that date the National Minimum Rate increased to €7.00 per hour. The Claimant was not paid that increase. She is therefore entitled to the arrears of wages for the time worked in the period from 1st February 2004 up to 7th December 2004, on which date her employment terminated.
On the facts available the Court calculates the amount due and owing to the Claimant to be €1,040. To this amount the Court adds a further €200 to cover reasonable expenses incurred by the Claimant in bringing her case before the Rights Commissioner and the within appeal.
Determination.
The appeal herein is allowed. The Court determines that the Claimant's complaint is well founded and the Respondent is directed to pay her arrears of wages in the amount of €1,040 and reimbursement of expenses in the amount of €200, making a total award of €1,240.
Signed on behalf of the Labour Court
Kevin Duffy
8th May, 2006______________________
MG.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.