FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : INDUS FOODS CASH AND CARRY (REPRESENTED BY DEVANEY & DURKIN) - AND - MR EJAZ AHMED (REPRESENTED BY NOEL G MCARDLE & COMPANY SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision r-110139-mw-11/RG.
BACKGROUND:
2. A Rights Commissioner hearing took place on the 17th August 2011 and a Decision was issued on the 19th October 2011.
- "I declare I do not have jurisdiction to hear this complaint as the Claimant did not request a statement under Section 23 of the Act."
- The Claimant appealed the Rights Commissioner's Decision to the Labour Court on 29th November, 2011. A Labour Court Hearing took place on 30th August, 2012. The following is the Labour Court's Decision:
DETERMINATION:
This matter came before the Court by way of an appeal by Mr. Ejaz Ahmed (the Complainant) against the Decision of a Rights Commissioner in his complaint under the National Minimum Wage Act, 2000 against Ms. Amita Malkan t/a Indus Foods Cash & Carry. The Rights Commissioner found that as the Complainant failed to request a statement of his earnings in accordance with the requirement under Section 23 she had no jurisdiction to deal with the claim. The Complainant appealed the decision of the Rights Commissioner.
The Complainant’s employment commenced on 3rdJuly 2009 and terminated on 1stOctober2010. The complaint was received by the Rights Commissioner on 13thJune 2011. The Complainant contended that he was not paid the minimum hourly rate for the number of hours he worked for the employer.
The Law Applicable
Section 24 of the Act provides, in effect, that before submitting a claim to a Rights Commissioner under the Act a Complainant 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 Act states that a dispute cannot be referred to or dealt with by a Rights Commissioner (or the Labour Court on appeal) unless the employee has complied with the provision.
Section 23 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.”
In the course of this appeal the Complainant gave evidence that he sent a letter to the Respondent dated 12thMay 2011 requesting a statement of his earnings for every “pay reference period” that she had. A copy of this letter was furnished to the Court. The Respondent stated in evidence that she never received this letter.
The Court notes that the copy of the letter submitted in evidence by the Complainant was incorrectly addressed and on that basis could account for the reason why the Respondent did not receive the letter.
In such circumstances the Court is not satisfied that the Complainant has proven to the Court that he complied with the statutory obligation to request a statement in accordance with Section 23(1). Therefore, the Court is of the view that the conditions precedent to Section 24 (2) of the Act have not been met and, accordingly, the Court has no jurisdiction to hear the complaint and, accordingly, upholds the Rights Commissioner’s Decision. The appeal fails.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
5th September, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.