FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : THOMAS DIXON (REPRESENTED BY LARKIN TYNAN & COMPANY SOLICITORS) - AND - RIMANTAS PLYTNINKAS (REPRESENTED BY MRCI NOEL G. MC ARDLE & CO. SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner’s Decision R-073604-MW-08/JC
BACKGROUND:
2. The Employer appealed the Rights Commissioner’s Decision to the Labour Court on 16th October 2009, in accordance with Section 27(1) of the National Minimum Wage Act, 2000. The Court heard the appeal on the 7th September, 2011.The following is the Determination of the Court:
DETERMINATION:
- This case comes before the Court by way of an appeal by Mr Thomas Dixon (the Appellant) against a decision of the Rights Commissioner that the Complainant Mr Rimantas Plytninkas had not been paid the national minimum hourly rate at the statutory rate during his employment.
Background
The Complainant took up employment with the Appellant as a farm labourer in February 2005. The Complainant’s position is that the Appellant notified him that his employment had been terminated on 19th July 2008. The Appellant’s position is that the Complainant terminated his own employment in May 2008.
The Complainant presented a complaint to the Rights Commissioner under the Act on 14th November 2008.
Summary of the Complainant’s Position
The Complainant’s legal representative said that the Complainant was initially employed to work four hours per day Monday to Friday each week for which he would be paid €350 per week. After a short number of months his hours increased until he was working 12 hours per day six days per week and was occasionally required to work four hours on Sunday morning. Initially his pay remained unchanged. His pay increased to €400 per week on 1st February 2007 and to €450 per week on 1st February 2008. His main duties were to do the morning and evening milking and some other related farm duties. His working day began at 7:00 a.m. His first task was to help to milk the 119 cows on the farm. This work normally finished around 8:30 after which he cleaned the machinery and the work area. Thereafter he set about completing tasks that were set for him by the Appellant. This involved him working around the farm until circa 5:00 p.m. when he assisted with the evening milking. This work finished around 7:00 p.m. He carried out similar work on Saturday over a 12- hour period. He sometimes worked for four hours on Sunday.
He said the Complainant was paid less than the statutory minimum wage. He said, based on the hours worked, the Complainant was entitled to be paid €7.00 per hour when he started work in February 2005; €7.75 effective from May 1st 2005: €8.30 effective January 2007 and €8.65 effective 1st July 2008. He said that the claimant was underpaid in the amount of €23,573.
He also said that his client was not appealing the decision of the Rights Commissioner and was not seeking to have it disturbed in any way.
The Appellant’s legal representative stated that the complaint was statute barred and that the complainant had failed to advance before this Court any reasonable grounds for an extension of time.
He said the Complainant had been employed to undertake four hours work per day for which he was paid €350 Euro per week. This was increased as outlined by the Complainant. He said that on occasions the Appellant asked the Complainant to undertake some additional duties on the farm. As a result his working hours increased on those occasions. However he said this only happened occasionally and amounted to no more than a total of 35 to 40 hours work per week on such occasions. He said at no time was the Complainant required to work on Saturday or Sunday. He said that at not time was the Complainant paid below the National Minimum Wage and was paid well in excess of it for the duration of his employment.
Preliminary Issue
Section 23
There was a direct conflict of evidence between the parties in relation the claimant’s request for a written statement of his average hourly rate of pay. The complainant’s complaint form had a questionasking on what date had the claimant requested in writing a written statement of his average hourly rate of pay for any “Pay Reference Period”. The Complainant responded with the date 12/11/08. The Rights Commissioner service sent a copy of the complaint form to the respondent together with the letter notifying receipt of the complaint.
Determination on preliminary issue
The Court finds that the Complainant made a request to his employer on 12th November 2008 for a written statement of his average hourly rate of pay in accordance with the provisions of Section 23 and none was provided within the time limit stipulated in the Act.
The Court determines that the complaint was made within the prescribed time limits set out in the Act.
Proof of Compliance
Section 22(1) of the National Minimum Wage Act 2000 provides that an Employer shall keep such records as a necessary to show whether the Act is being complied with. Subsection (3) provides that where an employer fails to keep records under Subsection (1) in respect of his or her compliance with a particular provision of the Act in relation to an employee, the onus of proving compliance therewith lies with the employer.
Position of the Parties
There was a direct conflict of evidence between the parties with regard to the number of hours worked each week by the Complainant during his employment with the Appellant. There was agreement on the weekly amounts paid.
The Appellant said in evidence that he did not keep proper records with regard to the hours the complainant worked or the amount of money the Complainant was paid each week as some of it was paid by cheque and some in cash. He therefore said he could not provide the necessary records to show compliance with the Act. However he said in evidence that he did comply with the provisions of the Act.
The case was heard together with an appeal under the Organisation of Working Time Act 1998. In the course of that case the Court took evidence on the number of hours worked and determined that the Complainant was required to work an average of 53.5 hours each week.
On the basis of the evidence provided to it the Court concurs with the findings of the Rights Commissioner and determines that the Complainant was not paid the amount to which he was entitled under the provisions of the Minimum Wage Act 2000. The Court further agrees with the rights commissioner that the arrears due to the Complainant amount to €8348. The Court determines accordingly and requires the Appellant to pay the claimant that amount.
The appeal is rejected. The decision of the Rights Commissioner is upheld.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
11th October 2011______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.