FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : BALLINALARD TRANSPORT LIMITED - AND - KONSTANTIN AGASKOV (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner Decision No: r-122526-mw-12/GC
BACKGROUND:
2. This is an appeal by the worker of Rights Commissioner Decision No: r-122526-mw-12/GC. The issue concerns a claim by the worker that he was not paid in compliance with the provisions of the National Minimum Wage Act, 2000. The matter was referred to a Rights Commissioner for investigation. A Rights Commissioner Decision issued on the 12th March 2013. The complainant did not attend the Rights Commissioner's hearing and his complaint failed. On the 27th March 2013, the worker appealed the Rights Commissioner's Decision in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on 11th June, 2013. The following is the Court's Determination:
DETERMINATION:
This matter came before the Court by way of an appeal by Mr. Konstantin Agaskov against the Decision of a Rights Commissioner in a claim under the National Minimum Wage Act 2000 (the Act) against Ballinalard Transport Limited. Mr Agaskov failed to attend the hearing before the Rights Commissioner, accordingly his claim failed for lack of prosecution.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr. Konstantin Agaskov will be referred to as “the Complainant” and Ballinalard Transport Limited will be referred to as “the Respondent”.
The Complainant worked for the Respondent as a haulage driver from 28thApril 2010 until 17thDecember 2011. Throughout the period of his employment the Complainant was paid at a rate of €90.00 per day, inclusive of subsistence allowances. During the relevant period the national minimum wage was €8.65 per hour. The Complainant claims to have worked varying hours per week which he estimated at an average of 60 hours per week, and paid an average of €350.00 per week, therefore he 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 Complainant sought a statement from the Respondent, pursuant to Section 23 of the Act, on 21stMarch 2012. The Respondent failed to provide the statement. The Complainant referred his complaint under the Act to the Rights Commissioner on 2ndMay 2012. Therefore, the Court is satisfied that the conditions precedent to its jurisdiction prescribed by Section 24(2) of the Act have been met.
The Respondent submitted to the Court that the Complainant had worked less than 60 hours per week and produced data extracted from Tachograph records to prove his working hours. This information verified that the Complainant worked between five and six days per week, however, no reliable information was provided on the Complainant’s working hours per day.
The Complainant gave evidence with the assistance of an interpreter provided by the Court. He gave details of the hours he worked and of his normal daily routine. He said that he regularly worked five or six days per week and worked between ten to twelve hours per day.
Mr Pat Higgins, Recruitment & Driver Training Manager, on behalf of the Respondent also gave evidence to the Court. He provided a document with details of the Complainant’s hours worked per day/per week for a number of weeks in 2010 and 2011, signed by the Complainant. The Complainant stated that he was asked on two occasions to sign these documents, however, he said that as they were not completed on a contemporaneous basis that they did not accurately reflect his working time. Mr Higgins said that the records demonstrate evidence of the time period from when the Complainant’s vehicle is first started each day to the time if stops running and accordingly held that they are reflective of the Complainant’s working hours.
The Court finds that the Tachograph records have no probative value for the purposes of establishing compliance with the provision of the Act and is not satisfied that the documents are a record of time worked excluding break times. Accordingly, the Court finds that the Respondent has failed to discharge the obligations placed upon him by virtue of Section 22 of the Act.
The Court finds that the Respondent did not maintain records in the form required by Section 22(1) of the Act. Accordingly, by virtue of the provisions of Section 22(3), the burden of proving compliance with the Act lies with the Respondent.
In the absence of any reliable evidence of compliance with the Act, and as the Respondent bears the onus of proof, the Court is satisfied that the Complainant’s complaint must be upheld. The Court notes that the Complainant was on authorised leave from 7thSeptember 2011 until 14thNovember 2011 and therefore excludes this period from its calculations. Based on the Complainant’s contention that he worked an average of 60 hours per week and paid an average of €350.00 per week therefore there was an underpayment by reference to the national minimum wage of €2.82 per hour for a period of 75 weeks, accordingly the Court finds that he is entitled to recover arrears in wages in the amount of €12,690 for the period of his employment.Determination
It is the Determination of the Court that the Respondent pay to the Complainant the sum of €12,690 in respect of the contraventions of the Act found to have occurred.
The Decision of the Rights Commissioner is overturned and the Complainant’s appeal is allowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
21st June 2013______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.