FULL RECOMMENDATION
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : PORTURLIN SHELLFISH LTD (REPRESENTED BY CORDUFF GUNNING & CO) - AND - NATALIYA GOLOVAN (REPRESENTED BY P.C.MOORE & CO.) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Decision R-038206-Mw-06/JT
BACKGROUND:
2. This case concerns an appeal by the worker of Rights Commissioner Decision R-038206-Mw-06/JT. The issue in dispute relates to the rate of pay that applied while the worker was in the employment of the Company.
The worker claims to have been required to frequently work additional hours but was still only paid a flat rate of pay per day. She also claims that she was paid less than the National Minimum Wage when her breaks were factored into her rate of pay. The Company position is that it complied at all times with the National Minimum Wage Act, 2000 and it also contends that there was never a requirement to work additional hours as the factory closed at the same time each day and all workers, except the cleaner, left the premises at the same time.
The dispute was referred to a Rights Commissioner for investigation. The Rights Commissioner in his decision dated 22nd March, 2007decided that the claim failed for the lack of prosecution on the basis that neither party attended the hearing.
The worker appealed the Decison of the Rights Commissioner on the 19th April, 2007in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on 18th October, 2007.
WORKER'S ARGUMENTS:
3 1 The worker was paid a flat daily rate of pay and was frequently required to work additional hours. When the additional hours of work and breaks are taken into account, the worker was paid less than the National Minimum Wage that applied at the time.
COMPANY'S ARGUMENTS:
4 1 There was never any requireent to work additional hours as the factory closed at the same time each day. The only person to stay beyond closing time was the cleaner who remained on the premises for 15 minutes.
2 The Company, at all times, complied with the terms of the National Minimum Wage Act, 2000.
DETERMINATION:
Counsel for the complainant informed the Court that she commenced employment with Portulin Shell Fish Limited (the employer) from 23rd February 2004 until 27th June 2005, when her employment terminated. The complainant brought proceedings before a Right’s Commissioner on 15th November 2005 claiming infringements of the National Minimum Wage Act, 2000.
Due to the non-attendance of both parties at the Right’s Commissioner hearing, he decided that the claim failed for lack of prosecution.
The complainant appealed the decision of the Right’s Commissioner.
The Court took sworn evidence from the Complainant in the course of which she said that her normal working hours were from 8.30am to 5.15pm, five days per week with one 1/2 hour break and one 15-minute break. She also gave evidence that on a regular basis she worked until 6.00pm and up to 7.15pm on some occasions.
Evidence was given on behalf of the employer by the proprietor, Ms. O’Donnell and by an employee Ms. Boylan. Ms. O’Donnell explained that due to the nature of the product produced by the company, the factory’s hours of work did not vary and the complainant was never required to work additional hours. She stated that employee records were kept on the computerised payroll, which was reflected in the complainant’s pay slips at the end of every week. However, as the hours of work never varied she felt that there was no requirement to maintain daily records of her hours of work. She informed the Court that the complainant, along with four others received a pre-organised lift to and from work on a daily basis and that all those involved left work at the same time – 5.15pm, except for one person who was required to remain to clean up, she informed the Court that the Complainant was not required to do the cleaning duties when the factory closed.
Ms. Boylan gave evidence that the factory closed at 5.15pm each evening and stated that the finishing times did not vary, regardless of the month or the season and that only one (named) person was required to stay on for 15 minutes for cleaning purposes.
The complainant stated that she was paid at a rate of €7.00 per hour for the hours from 8.30am until 5.15pm five days per week when breaks were factored in, which was less than the national minimum wage. She submitted that this rate reduced to €5.74 when the additional hours she worked after her 5.15pm normal finishing time were factored in.
Based on the sworn testimony given by the parties and the computerised pay slips submitted at the hearing the Court is satisfied that the complainant’s daily hours of work were 8.30am to 5.15pm and that these hours did not vary. Furthermore, the Court is satisfied that she did not work the additional hours up to 7.15pm as contended by the complainant.
It is not disputed that the complainant was paid at a rate of €56.00 per day from February 2004 until May 2005 when it changed to €61.20 per day until 27th June 2005, when her employment terminated. The National Minimum Wage was €7.00 per hour from 1st February 2004 and €7.65 from 1st May 2005.
The Court has considered all the evidence before it in this case and finds that the Employer has on the balance of probabilities, proved that it complied with the Act in respect of the complainant during the periods to which her claim relates. As the Court is satisfied that she did not work more than eight hours per day, it is satisfied that she was paid in accordance with the minimum wage rates applicable at the appropriate time.
Accordingly, the Court determines that the decision of the Right’s Commissioner be set aside and substituted with this determination.
Therefore, the Court rejects the worker's appeal.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th November 2007______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.