FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : ANGELA FARRELL AND ANGELA FARRELL SNR. - AND - MARITES NEBRIJA (REPRESENTED BY NORESIDE RESOURCE CENTRE) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner’s Decision R-079131-MW-09/JOC
BACKGROUND:
2. The worker was employed as a Personal Carer for Angela Farrell Snr. taking care of her in Ms. Farrell's own home (the worker supplied a list of her duties). She was employed from 18th February, 2007, until 30th December, 2008. The worker's case is as follows: she worked from 7.00 p.m - 9.30 a.m. and received €420 per week which included Saturday and Sunday afternoon visits. She received no terms of employment, no pay slips and no deductions of PAYE or PRSI. She was given no public holidays nor annual leave days nor did she receive any additional pay for Sunday work. In effect she worked a 79-hour week for €420. She estimates that she was underpaid by €26,043 for the total period of her employment.
The worker referred her case to a Rights Commissioner whose decision was that he had no jurisdiction to hear the claim. The worker appealed the decision to the Labour Court on the 18th March, 2010, in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on the 13th September, 2011. The employer did not attend the hearing or supply a written submission. The following is the Court's determination:
DETERMINATION:
This is a complaint by Marities Nebrija (the Complainant) alleging that her former employer, Angela Farrell and Angela Farrell Snr. (the Respondent) contravened the National Minimum Wage Act, 2000 (the Act).
The Rights Commissioner found that as the Complainant had not fulfilled the requirements of Section 24 of the Act he had no jurisdiction to hear the complaint. The Complainant appealed the decision of the Rights Commissioner.
The Respondent did not attend before the Labour Court for the hearing of the appeal.
The Complainant’s employment commenced on 18th February, 2007, and terminated on 30th December 2008. The complaint was referred to the Rights Commissioner on 24th March 2009. The Complainant contended that she was not paid the minimum hourly rate for the number of hours she worked for the employer.
The Law Applicable
Section 23 of the Act provides that an employee is entitled to demand from his or her employer a written statement of his or her rate of pay for any pay reference period (other than the employee’s current pay reference period) falling within the 12-month period immediately preceding the request:
- Section 23(1):
“Subject to subsection (2), an employee may request from his or her employer a written statement of the employee’s average hourly rate of pay for any pay reference period (other than the employee’s current pay reference period) falling within the 12 month period immediately preceding the request.”
- (i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or
- (ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,
- and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,
- or[not relevant]
- or[not relevant]
- and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,
Signed on behalf of the Labour Court
Caroline Jenkinson
13th October, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.