FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : SPRING MANOR TRADING AS UNICORN RESTAURANT - AND - MAURO SANNA DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Decision of a Rights Commissioner r-088621-mw-09/GC.
BACKGROUND:
2. The Worker was employed as a Barperson from 12th April, 2008, to 16th October, 2009. His claim is that he was not paid the correct wages under the Minimum Wage Act, 2000. Also in dispute was the number of hours worked by the Claimant; he claimed that he worked on average 7 to 8 hours per day and at weekends on average 10 to 11 hours each day. The Employer maintained at the Rights Commissioner's hearing that the Claimant worked only five hours per day and often less. He was paid between
€50 and €55 for each shift.
The following is the Rights Commissioner's Decision:-
"I have not been presented with evidence that the provisions of Section 24 have been fulfilled and therefore I cannot deal with this complaint. The complaint fails".
The Worker referred his 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 21st April, 2011. The Company was not represented at the hearing.
WORKER'S ARGUMENTS:
3. 1. There are documents now available to prove that the claim was properly before the Rights Commissioner and are produced in evidence to the Labour Court.
2. The earning received by the Claimant did not reflect the number of hours he actually worked, there is a significant sum still owed to him in wage arrears.
DETERMINATION:
This is an appeal by Mauro Sanna (the Claimant) against the Decision of a Rights Commissioner in his claim under the National Minimum Wage Act 2000, against his former employer Springmanor Limited trading as Unicorn Restaurant (In liquidation) (the Respondent).
The Respondent was not represented at the hearing of this appeal.
Section 24 of the Act provides, in effect, that before submitting a claim to a Rights Commissioner under the Act a claimant must have received a statement of his or her average hourly wage, in respect to a reference period, under Section 23 of the Act, or having requested such a statement, it was not provided within the time limited for its provision. The Rights Commissioner found that the Claimant had not requested a statement in accordance with Section 23 of the Act prior to submitting his claim. Accordingly she found that she lacked jurisdiction to deal with the claim.
In the course of this appeal the Claimant gave evidence that he wrote to the Respondent by letter dated 23rd October 2009 requesting a statement of his earnings for the period 12th April 2008 to 17th October 2009. A copy of this letter was furnished to the Court together with a certificate of posting dated 24th October 2009 which shows that a letter was delivered to the Respondent on that date.
The Court accepts the uncontested evidence that this certificate of posting relates to the letter of 23rd October 2009, which was put in evidence. Accordingly the Court accepts that the Claimant did request a statement in accordance with Section 23 of the Act and that the statement was not provided. The Claimant referred the within claim to a Rights Commissioner on or about 2nd December 2009.
In these circumstances the Court is satisfied that the claim was properly before the Rights Commissioner is now properly before this Court.
The Court is further satisfied on the uncontested evidence of the Claimant that he worked for the Respondent for 79 weeks and worked an average of 44 hours per week. Having regard to his earnings while employed by the Respondent relative to the amount due to him by application of the National Minimum Wage the Court has concluded that he was underpaid by the gross amount of €9,174.
The Court allows his appeal and awards the Claimant arrears of wages under the Act in that amount.
Signed on behalf of the Labour Court
Kevin Duffy
9th May, 2011______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.