MWD121

The Case came on for hearing before the Labour Court on 29^thNovember 2011.

Background

The Respondent operates a Bed and Breakfast Hostel business in Dublin. In early 2009 the Complainant came to stay at the Bed and Breakfast with his family. He fell into conversation with the Respondent. In the course of conversation it emerged that the Complainant was a “tiler” by trade. The Respondent needed some work done in hostel. The Complainant quoted for the work. He was engaged to do the work at a price considerably higher than that quoted. Over the course of the following months the Respondent gave the complainant more tiling work which he undertook and completed in a most satisfactory manner.

In that time the Complainant and the Respondent became friends and their friendship grew into an employment relationship. Initially the Complainant assisted the Respondent with the running of the Hostel. He cleaned rooms each morning and assisted with the running of the reception area. Over time the Respondent left the Complainant in full charge of the Hostel for increasingly longer periods of time. The Respondent occasionally left the Complainant in charge of the hostel on a 24/7 basis while he attended to his other interests and duties.

The Respondent paid the complainant in a most irregular manner. He occasionally gave the complainant some cash to cover his expenses and to pay him for work done however there was little pattern to these payments and there were long intervals between these payments. These payments were supplemented by free board and lodgings that was made available to the Complainant.

Occasionally, during busy periods, the Respondent told the Complainant that he could supplement his income by renting his own room to guests. He was told he could keep any monies he received in this regard.

The Complainant subsequently became involved in further additional duties around the Hostel. He made breakfast on occasions although the frequency with which he did so is disputed by the Respondent.

Because work in the Hostel was neither full time nor certain the Complainant continued to seek work elsewhere and was encouraged to do so by the Respondent. At one point he undertook work valeting cars. After his day’s work he returned to the hostel and became involved in more tiling work and in the administration of the hostel reception sometimes remaining available to guests throughout the night.

The Complainant says he was paid some monies but he did not have an accurate account of the total monies he was paid. The Respondent says he paid the Complainant some monies but he did not have any records of those amounts either.

The matter is further complicated by the fact that the two men shared both a friendship and an employment relationship. The boundry between these two aspects of their relationship was blurred to say the least. On many occasions the two were enjoying each other’s company whilst staffing the reception of the hostel. It is unclear which of them was on duty at the time as no records of any description have been presented to the Court.

Events conspired to cause the proprietor to spend more time away from the Hostel to deal with the consequences of a series of family illnesses. At this time two separate unrelated events occurred. Firstly the Complainant had been seeking some payment from the proprietor. Despite repeated assurances that he would pay him some money nothing was forthcoming. The Complainant on two occasions took €10 from the receipts to tide him over. He told the Respondent he had done so. However the relationship between the two men became strained and never recovered. Secondly the Proprietor arranged to have another person manage the Hostel while he was away attending to other matters. The Complainant did not get on with this person and following a series of encounters he resigned his employment and left the hostel.

He subsequently submitted a complaint to the Rights Commissioner that he had not been paid his entitlements under the terms of the Minimum Wage Act. The respondent did not attend the Rights Commissioner’s hearing into the complaint and on the uncontested evidence of the Complainant he upheld the Complaint and awarded him €8,000. It is this decision and award that the Respondent appealed to the Labour Court.

Complainant’s Case

The Complainant submitted that he was employed by the Respondent to tile various rooms and passageways in the hostel, to manage the reception, to clean rooms and to cook breakfasts at various times from early 2009 until he left his employment in May 2010.

He submitted that he received irregular payments. For some hours he worked he received no payment. For some he received payment that did not accord with the provisions of the Act. For some hours he worked he submitted that he was paid properly and on time.

He is seeking payment in accordance with the provisions of the Act in respect of the hours he worked for which he either not paid or under paid by the Respondent.

Respondent’s Position

The Respondent submits that the Complainant was never employee. He submits that the Complainant was engaged as a contractor to undertake maintenance work around the hostel that he completed to a very high standard and for which he was paid.

He submits that the Complainant was not employed on reception in the hostel. Rather the two men became friends and on occasions spent their evenings together in a room behind reception watching television and having a social drink. He said on those nights the complainant was his guest and not his employee. On other nights he said the Complainant was helping him as a friend and not as an employee.

He acknowledged that the Complainant did clean rooms and very occasionally prepared breakfast. However he said that at those times he was staying in the hostel free of charge, was between jobs and was acting as both a friend and contributing towards the cost of his keep.

He submitted that he occasionally gave the Complainant some cash to tide him over but it was not in the nature of wages but rather in the nature of a contribution towards his upkeep. He said the relationship between them was not one of employer and employee.

He submitted that the terms of the Act did not apply as there was no employment relationship between the parties.

The Law

Statutory Minimum Wage

The Act makes provision for the establishment and enforcement of a statutory minimum wage for employees within the state.

Section 14 of the Act provides

14.—Subject tosections 17 and 18—

• 
  (a) an employee who has attained the age of 18 years shall, subject tosections 15, 16and41, be remunerated by his or her employer in respect of the employee's working hours in any pay reference period, at an hourly rate of pay that on average is not less than the national minimum hourly rate of pay

Variations to Statutory Minimum Wage amount

The Statutory Minimum Rate of Pay varies over time. It is decided by the Minister and published by way of Statutory Instrument. At the relevant timeS.I. No. 667/2006 — National Minimum Wage Act 2000 (National Minimum Hourly Rate of Pay) Order 2006was in force.

The Statutory Instrument provides at section 4 that

• 
  4. On and from 1 July 2007 the national minimum hourly rate of pay is €8.65

Benefits in Kind

The Act provides that certain benefits in kind are to be taken into account when calculating an employee’s rate of pay. These are set out in Schedule 1 of the Act

Schedule 1 provides that amongst other benefits

“The monetary value of board with lodgings or board only or lodgings only, not exceeding the amount, if any, prescribed for the purposes of this item.”

Statutory Instrument No 95 of 2000 sets out the value to be attached to various degrees of board and lodgings.

It provides:

(1) The national minimum hourly rate of pay may include the following allowances:

(i) for full board and lodgings, £42.63 per week or £6.09 per day

(ii) for full board only, £25.31 per week or £3.62 per day

(iii) for lodgings only, £17.21 per week or £2.47 per day

(2) In this article “day” means a day on which the full board and lodgings, full board only or lodgings only, as the case may be, is or are provided by an employer to an employee.


Records

Section 22(1) of the act provides

• 22.(1)—An employer shall keep, at the premises or place where his or her employee works or, if the employee works at 2 or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records as are necessary to show whether this Act is being complied with in relation to the employee and, subject tosection 23(5), those records shall be retained by the employer for at least 3 years from the date of their making

• 
  (2) An employer who, without reasonable cause, fails to comply withsubsection (1)shall be guilty of an offence and be liable on summary conviction to a fine not exceeding £1,500

  Section 21(2) is not relevant to the matters before the Court.
  

  (3) Without prejudice tosubsection (2), where an employer fails to keep records undersubsection (1)in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the provision was complied with lies on the employer.

Section 21(3) provides that where an employer fails to keep records under subsection (1) the onus of proving compliance with a particular provision of the Act in proceedings before this Court lies on the employer.

The Respondent did not present any evidence of the hours the Complainant worked for him nor of the amount of money paid him in respect of those hours other than the initial payment in respect of the tiling the Complainant completed in the hostel when he first arrived there.

Accordingly the Court finds that the Respondent did not discharge the burden of proving compliance with the provisions of the Act.

Conclusions of the Court

Neither party made a written submission to the Court. Neither party was coherent, consistent or systematic in the presentation of their submissions or evidence to the Court.

Having considered what submissions and admissions were made by the parties, the Court finds that the Complainant was employed by the Respondent on a casual basis in the relevant period. Initially he was employed to work as a handyman around the hostel for which he was paid a contract price. Thereafter he was paid an hourly rate for the work of this nature. Subsequently he was employed by the Respondent to undertake reception duties that on occasions involved him remaining on duty overnight or over an entire weekend without a break. The Court finds that the Complainant was employed to clean rooms and occasionally to prepare breakfast. The Court finds that there was no particular pattern to this work and neither party has a reliable record of the hours actually worked. Equally neither party has an accurate record of the amounts of money that were paid by the Respondent to the Complainant in respect of hours worked. The Court finds that the Complainant availed of lodgings as part of the contract of employment.

In summary the Court finds that the Complainant was employed by the Respondent on a casual basis and the employment relationship comes within the scope of the Act.

Section 26 of the Act requires the Respondent to maintain records of hours worked and the hourly rate paid to the Complainant. He did not maintain any such records. Accordingly the onus of proving compliance with the provisions of the Act lies with the Respondent.

The Respondent made various assertions to the Court regarding the hourly rate he paid to and the hours total worked by the Complainant. However the Court finds that the Respondent failed to prove compliance with the provisions of the Act.

Accordingly the court finds that the Complainant was not paid the statutory minimum wage in respect of the hours he worked for the Respondent.

Remedy

From the scant information supplied by both parties the Court finds that the Complainant worked 31 days or a total of 250 hours for the Respondent. The Court calculates the amount due to the Complainant as follows

Total Hours Worked 250

National Minimum Wage 8.65 per hour

Total Amount payable 2162.5

Less amount paid 520 1642.5

Less Board @31days @ 47per day 76.57 1565.93

Determination

The Court requires the Respondent to pay the Complainant the sum of €1565.93 within six weeks of the date of this Determination.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
26th March,2012______________________
DNDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.