FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : PEPPER N SPICE - AND - SHAHID ALI REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision R-048503-Mw-06/Pob
BACKGROUND:
2. This case concerns an appeal by the Union of Rights Commissioners Decision r-048503-mw-06/Pob. The Union is claiming that the worker was paid below the statutory National Minimum Wage at the time of his employment as a chef in the Pepper and Spice Restaurant, Carrickmacross, County Monaghan.
It is also claimed that he did not receive a written statement of his hourly rate of pay in compliance with the Act. The Union is seeking an appropriate award of compensation on the basis of the breaches of the National Minimum Wage Act, 2000 by the employer.
The dispute was referred to a Rights Commissioner for investigation and Recommendation. His findings issued on 17th July 2007 and did not find in favour of the worker on the basis that a P45 supplied by the employer was not contested by the worker with respect to dates and payments.
On 20th August, 2007 the Union appealed the Rights Commissioner's Recommendation in accordance with Section 27(1) of the National Minimum Wage Act, 2000.
A Labour Court hearing took place on 10th June, 2008 in Monaghan.
The Employer did not attend the Labour Court hearing and did not submit any correspondence in relation to the case.
UNION'S ARGUMENTS:
3 1 The worker was employed for up to 119 hours per week and was paid at rates well below the National Minimum Wage at the time.
2 The Employer failed to provide reasonable accomodation to the worker while he was in their employment. The absence of basic facilities negates the right to deduct the appropriate board and lodgings from the worker.
3 The Employer supplied a P45 to the Rights Commissioner in support of its case but was unable to supply adequate records as required by the legislation in relation to the application of the appropriate hourly rate of pay, the required number of hours to be worked each week. There were also no payslips provided to the worker during his employment
4 The Rights Commissioner considered the P45 as being uncontested and made his Recommendation on that basis. The P45 remains contested on the basis that it is a document that was compiled by the Employer, totally incorrect with regard to the dates and earnings and was supplied to the worker long after his employment with the Company had ceased.
5 It is unacceptable that in this day and age, with all the workplace protection mechanisms in place, that a vulnerable migrant worker can be treated in such a way by his employer. Working almost three times the allowable maximum hours per week, living in sub-standard accommodation, being paid a rate of pay way below the National Minimum Wage and being denied any written documentation in relation to basic terms and conditions of employment is outrageous.
6 The Union is seeking adequate compensation for the unreasonable and inexcusable treatment of its member.
DETERMINATION:
On the uncontested evidence of the claimant and his representative, in the unexplained absense of the respondent, the Court finds that the claimant worked a minimum of 48 hours (the allowable maximum) for 31 weeks at €7.65 per hour, thus earning a total of €11,383.20. It is an admitted fact that the claimant received €2,550 in earnings in the course of his employment. A P45 was produced before the Rights Commissioner, but there was nothing in the way of records, documentation or evidence to support it at the hearing. The Court therefore awards the sum of €8,833.20 in arrears of earnings.
The Court accordingly overturns the Rights Commissioners Determination and Determines that the respondant pay the sum of €8,833.20 in compensation to the claimant.
Signed on behalf of the Labour Court
Raymond McGee
21st Aug 2008______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.
MWA/07/14DETERMINATION NO. MWD083
SECTION 39 (2) of the ORGANISATION OF WORKING TIME ACT, 1997 as amended by SECTION 45 of the NATIONAL MINIMUM WAGE ACT, 2000.
PARTIES:
PEPPER N SPICE
-AND-
SHAHID ALI
REPRESENTED BY SIPTU
-AND-
SHAHID ALI
REPRESENTED BY SIPTU
SUBJECT:
1. Appeal against Rights Commissioners Decision r-048503-mw-06- POB.
BACKGROUND:
2. An application has been made by the employee that Determination No. MWD083 does not correctly state the name of the employer, the correct name being Mujahid Pervaz trading as Pepper N Spice.
DETERMINATION
In exercise of its powers under Section 39(2)of the Organisation of Working Time Act as amended by Section 45 of the National Minimum Wage Act, 2000 the Court Determines that the name of the employer in Determination No. MWD083 shall be changed from Pepper N Spice to Mujahid Pervaz trading as Pepper N Spice.
Signed on behalf of the Labour Court
- 13th August, 2009 Raymond McGee
Deputy Chairman