MWD1015

Background

This is an appeal by Ms Memory Nyazika (the Respondent) against the decision of Rights Commissioner in a claim by Ms Sandra Dzumbira (the Claimant) under the National Minimum Wage Act 2000 (the Act).

The Rights Commissioner found that the Claimant was employed by the Rights Commissioner from 2nd February 2004 until 6th May 2009 and that she was underpaid during the currency of her employment by reference to the National Minimum Wage. The Rights Commissioner awarded the Claimant arrears of pay in the amount of €51,523. The Respondent appealed to this Court

Position of the parties

It is accepted that the conditions precedent to the Court’s jurisdiction specified at s.24(2) of the Act have been fulfilled in this case.

The Claimant was employed by the Respondent as a child minder and undertook general housework. She commenced employment with the Respondent on 2nd February 2004. At all material times the Claimant resided in the Respondent’s home and was provided with board. The Claimant contends that the employment continued until May 2009. The Respondent contends that the formal employment relationship ended in May 2005 and that the Claimant remained in her home as a guest. The Respondent told the Court that the Claimant’s work permit expired in May 2005 and she ceased to employer her thereafter. The Respondent accepted that the Claimant undertook some housework during this latter period but that no formal employment relationship existed. The Respondent accepted that she did not maintain any records of payments made to the Claimant nor of the hours which she worked.

The Respondent told the Court that the Claimant was paid €150 per week from which €60 was deduced for board and accommodation. This was later increased to €190 per week, again with the same deduction for board and accommodation.

The Claimant told the Court that she was initially paid €200 per month and this was gradually increased by €50, at six monthly intervals. She claimed that by the time her employment ended in May 2009 she was paid €500 per month. A deduction of €60 was paid in respect to board and accommodation. Originally the Claimant claimed that she worked between 70 to 80 hours per week. However, the Rights Commissioner found that it was more probable that the Claimant worked 42 hours per week in the period up to 1st April 2008 and 35 Hours per week from 2nd April 2008 until 6th May 2009. The Claimant accepted the Rights Commissioner’s findings in that regard.

Conclusions of the Court

There was a direct conflict in the evidence tendered by the Claimant and that of the Respondent on practically every fact in issue in this case. In respect to the duration of the employment the Respondent told the Court that it came to an end in or about May 2005. The Claimant’s evidence on this point was that it continued up to 6th May 2009. The Respondent accepted that the Claimant continued to reside with her until the later date and that she undertook some work in consideration of being provided with accommodation. Neither party was in a position to offer any corroboration of the testimony that they proffered.

Having considered the evidence of both parties the Court finds the evidence of the Claimant on this point more credible. Consequently the Court finds it more probable than not that the Claimant’s employment persisted until 6th May 2009.

The Court has considered the conflict of evidence regarding the payments made to the Claimant over the currency of her employment. It is noted that even taking the Respondent’s evidence at its height there was a significant underpayment in respect to the period of employment which is not in dispute (between February 2004 and May 2005).

The Court is obliged to apply s. 23(2) of the Act which provides, in effect, that where records showing compliance with the Act are not maintained the employer bears the legal burden of proving compliance in any proceedings before the Court. The Court has not found the Respondent’s evidence on the payments made to the Claimant more convincing that that tendered by the Claimant herself. Consequently the Court must accept the evidence of the Claimant on this point.

Determination

For the reasons referred to above the Court finds itself in full agreement with the conclusions reached by the Rights Commissioner concerning the durations of the Claimant’s employment with the Respondent and on the level of pay which she received over that period. The Rights Commissioner undertook a careful calculation of the amount due and owing to the Claimant and concluded that she is due arrears in the amount of €51,523 under the Act. No issue was taken as to the mathematical accuracy of the Rights Commissioner’s calculations.

Accordingly, the Court holds that the Claimant is due arrears, being the difference between the amount paid to her by the Respondent and the minimum amount the Claimant was entitled to receive in accordance with the Act, in respect of the period 2nd February 2004 and 6th May 2009, in the amount of €51,523. An award in that amount is made in favour of the Claimant to be paid within six weeks of the date of this Determination.

The decision of the Rights Commissioner is affirmed and the within appeal is disallowed.



Signed on behalf of the Labour Court



Kevin Duffy
25th November 2010______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.