FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : EXECREATE INC. LIMITED TRADING AS GRACELAND CRECHE & MONTESSORI - AND - NADYA NAZIPOVA (REPRESENTED BY VINCENT P GARTY & CO) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Decision R-078679-MW-09/GC
BACKGROUND:
2. The worker was employed as a Childcare Assistant from February, 2007, to October, 2008, having previously worked with the employer for 5 months as a relief worker. Her claim is that she was not paid the correct wages under the Minimum Wage Act, 2000. One of the issues in dispute was the number of hours worked by the claimant; she claimed that she worked on average 43 hours per week whilst the employer maintains that it was no more than 40 hours and often less. Both parties supplied lists of the hours worked to the Court.
The worker referred her case to the Labour Court on the 9th March, 2010, in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on the 19th October, 2010, in Portlaois.
WORKER'S ARGUMENTS:
3. 1. The worker was not provided with a contract of employment. She was no employed as a trainee and so was not paid a trainee's rate. She agreed to take a FETAC Level 5 Childcare Development and Special Needs Course at the suggestion of her employer but had to pay for it herself. It was a night course and thus taken on the worker's own time.
2. The worker is not disputing the amount she was paid but she worked on average 43 hours per week and was not paid the proper wages.
COMPANY'S ARGUMENTS:
4. 1. The worker was offered a role as Childcare Assistant Trainee on the condition that she commence her Childcare Certification.
2. The worker's wages were not based on an hourly rate but on a gross annual salary. Her wages were reviewed on completion of her Childcare Certification and increased twice. Her hours of work ranged from 16-40 hours per week.
DETERMINATION:
This is an appeal by Nadja Nazipova (the Claimant) against the decision of a Rights Commissioner in her claim against her former employer, Execreate Inc Ltd trading as Graceland Cr�che & Montessori (the Respondent) under the National Minimum Wage Act 2000. The Claimant contends that she was remunerated at less than the National Minimum Wage in respect of her employment with the Respondent between February, 2007, and October, 2008. The Respondent denies the claim. The claim was investigated by a Rights Commissioner who held against the Claimant.
Position of the parties
It is common case that the Claimant was employed initially at a salary of €15,600 per annum. The Claimant contends that she worked 43 hours per week. The Respondent contends that the Claimant worked 40 hours per week. It further contends that the Claimant was a trainee at all times material to her claim. In that regard the Court was told that the Claimant commenced her employment with the Respondent as a cleaner and was later appointed as a child care worker. She was, however, required to undertake a FETAC Level 5 course in childcare development and special needs. This course was undertaken by the Claimant in her own time and at her own expense
The Court was told that the Claimant signed in and out of work during her employment. The Respondent acknowledged that the Claimant did sign in and out of work but told the Court that the records were no longer available. While the Respondent maintained records of rosters issued it did not maintain records of hours actually worked by its staff, including the Claimant.
Conclusion
Section 16(1) of the Act provides, in relation to trainees as follows: -
- 16.(1)—Subject to subsection (3) and sections 17 and 18, where an employee who has attained the age of 18 years undergoes a course of study or training authorised by the employer within the workplace or elsewhere during normal working hours, such courses or training to be prescribed in regulations made by the Minister, the employee shall be remunerated by his or her employer in respect of his or her working hours in any pay reference period at a rate of pay that on average is not less than the following percentages of the national minimum hourly rate of pay:
(c) in respect of the third one-third period (but not exceeding 12 months) of the total study or training period, 90 per cent.
In relation to her hours of work the Claimant told the Court that she entered her starting and finishing time each day in a book provided for the purpose by the Respondent, which she signed. The Respondent accepts that such a time recording system was in place but contends that the book is no longer available.
Section 22 of the Act obliges an employer to maintain records for the purpose of showing compliance with the Act. Section 22(3) provides that where an employer fails to keep records it bears the onus of proving compliance in proceedings before a Rights Commissioner or this Court. As the Respondent has failed to maintain records in accordance with the Act it bears the onus of proving compliance in the instant case.
The Claimant gave cogent evidence concerning her hours of work. The onus is on the Respondent to rebut that evidence and to prove that her hours of work did not exceed 40 per week. The time recording system used by the Respondent would have definitively established the Claimant’s working hours. However, the time records were not produced and the Respondent contends that the records were not retained. The Respondent did produce details of rosters issued in respect of the relevant times but these are not records of hours actually worked nor is it evident that they were actually issued to the Claimant at the material time.
In all the circumstances the Claimant is entitled to succeed in her claim. The Court holds that she did not receive the national minimum rate of pay during the course of her employment with the Respondent and awards her arrears of €3,589.64.
The appeal is allowed and the decision of the Rights Commissioner is varied accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
27th October, 2010______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.