FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : NATHAN CLARE T/A CLARE HAULAGE (REPRESENTED BY JACQUELINE NIELSEN B.L.) - AND - VAIDOTAS BARSTEIGA (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appealing of Rights Commissioner's Decision r-099424-MW-10/EH.
BACKGROUND:
2. The Respondent appealed the Rights Commissioner's Decision to the Labour Court on 17th June, 2011. A Labour Court Hearing took place on 22nd September, 2011. The following is the Labour Court's Decision:
DETERMINATION:
This is an appeal by Nathan Clare t/a Clare Haulage (the Respondent) of a Rights Commissioner’s Decision under the National Minimum Wage Act, 2000 (the Act). The Respondent did not attend before the Rights Commissioner for reasons which were explained to the Court.
The Claimant worked for the Respondent as a haulage driver from 25th July 2009 until 8th July 2010. Throughout the period of his employment the Claimant was paid at a rate of €95.00 per day plus subsistence. During the relevant period the national minimum wage was €8.65 per hour. The Claimant claims to have been underpaid by the Respondent in terms of the minimum wage prescribed by the Act during the course of his employment with the Respondent.
The Claimant sought a statement from the Respondent, pursuant to Section 24 of the Act, on 14th September 2011. The Court is satisfied that the conditions precedent to its jurisdiction prescribed by section 24(2) of the Act have been met.
The Respondent disputed the Claimant’s claim and stated that the Claimant was required to work a different number of hours each week depending on the location and distance traveled each day and submitted that his rate of pay reflected the hours he worked. The Respondent supplied pay slips and logbooks to substantiate its position.
The Claimant submitted to the Court that the Respondent was factoring in expenses paid in the course of his duties when arriving at the minimum hourly rate of pay and sought to uphold the Rights Commissioner’s Decision. The Claimant submitted a log book outlining details of his employment with the Respondent covering the period from 8th February 2010 until 8th July 2010.
Having examined the records provided by the Claimant and cross referencing this information with the Respondent’s records, the Court is not in a position to arrive at a definitive result, however, the Court is satisfied that the records show an underpayment by reference to the national minimum wage in being during the period. Based on the Court’s analysis of the information provided, it is satisfied that the claimant worked on average 65 hours during the period covered by the logbook details. Based on these average working hours, taking account of his basis weekly wage of €455.00 and including meal allowance/board as provided under the Act at €32.14 per week, the Court estimates that this underpayment amounts to the sum of €3680.39 for the full period of his employment from 25th July 2009 to 8th July 2010. It is the determination of the Court that the Respondent herein pays to the Claimant arrears in that amount.
The appeal is allowed. The decision of the Rights Commissioner is set aside and substituted with the terms of this determination. The Court orders the Respondent to pay the sum of €3680.39 to the Claimant.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
14th October, 2011______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.