FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : MARC O'MAHONY TRADING AS THE GOOD FOOD SHOP FORMERLY TRADING AS PREMIER ORGANICS - AND - DARIA KALKOWSKI (NEE GAWALKO) (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner Decision No: r-048039-mw-06/POB
BACKGROUND:
2. This case concerns an appeal of Rights Commissioner Decision No: r-048039-mw-06/POB.
The issue concerns the Union's claim that the worker was paid less than the national minimum wage for the duration of her employment.
The employer's position is that the worker worked 40 hours each week and was also provided with lodgings and transport. It is claimed that when all things were considered the worker was paid in compliance with the provisions of the National Minimum Wage Act, 2000.
The matter was referred to a Rights Commissioner for investigation. His Decision issued on the 24th April, 2009, and awarded the worker €1,900 in respect of employer's failure in not paying the correct rate of pay.
On the 20th May, 2009 the employer appealed the Rights Commissioner's Decision in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on 3rd February, 2010.
UNION'S ARGUMENTS:
3 1 The worker was frequently required to work hours in excess of 40 per week. The additional hours worked and the payment of a flate rate of €250 per week reduced the worker's rate of pay to approximately five euro per hour. This is well below the national minimum wage of €7.65 per hour which applied at the time of the employment.
COMPANY'S ARGUMENTS:
4 1 The worker was provided with lodgings and transport as well as payment of €250 per week. When all these issues are taken onto account the worker was paid an acceptable rate of pay.
DETERMINATION:
This is an appeal by the Respondent of a Rights Commissioner’s Decision under the National Minimum Wage Act, 2000 (the Act).
The Claimant worked for the Respondent from 25th September 2005 until 13th July 2006. Throughout that period the Claimant was paid at a rate of €250.00 per week plus Lodgings. During the relevant period the national minimum wage was €7.65 per hour.
The Claimant sought a statement from the Respondent, pursuant to Section 24 of the Act, on 1st December 2006. The Respondent failed to provide the statement. The Claimant then made her claim under the Act.
The Claimant stated that she worked 10 hours per day and on some occasions she worked in excess of those hours. Therefore, she submitted that she was paid €5.00 per hour.
The Respondent disputed the Claimant’s claim and stated that the Claimant was required to work an average of 40 hours per week from Sunday to Thursday and, depending on the workload, some weeks she was required to work less hours and other weeks more, so that on balance it worked out at an average of 40 hours per week. The Claimant was provided with lodgings and transport.
The Respondent did not provide records to the Court to substantiate his position.
From the submissions made, the Court is not satisfied that the Claimant was paid the minimum rate to which she was entitled under the Act. The Rights Commissioner measured the arrears due to her at €1,900.00 and made an award in the Claimant’s favour in that amount. The Claimant took no issue with this calculation.
The Respondent told the Court that having regard to the provision of lodgings and transport he felt that the rate which the Claimant received was fair and reasonable. The Act provides for reckonability of lodgings (at a rate of €21.85 per week) in the calculation of pay for the purposes of determining whether or not the Claimant has been paid in accordance with the statutory provisions, however, the provision of transport is not reckonable.
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 Respondent 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 submissions made by the Claimant.
The Court has considered all the submissions before it in this case and finds that the Respondent has failed to prove on the balance of probabilities that he complied with the Act in respect of the Claimant during the period to which her claim relates.
Accordingly the Court determines that the decision of the Rights Commissioner be upheld and the Respondent’s appeal is rejected.
It is the Determination of the Court that the Respondent pay to the Claimant the sum of €1,900.00 being arrears of wages due to her under the Act.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd February 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.