FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : LIAM DELANEY TRADING AS LIAM DELANEY HAULAGE (REPRESENTED BY B. HYLAND & CO., SOLICITORS) - AND - ZBIGINEW DEBNY (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-118818-mw-11-RG.
BACKGROUND:
2. The Worker states that he was not paid the national minimum wage during the time of his employment. A Rights Commissioner hearing took place on the 11th June, 2012 and a Decision was issued on the 21st August, 2012.
The Worker appealed the Decision of the Rights Commissioner to the Labour Court on the 28th August 2012, in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on the 27th February, 2013.
DETERMINATION:
This is an appeal by Zbiginew Debny (the Complainant) of a Rights Commissioner’s Decision under the National Minimum Wage Act, 2000 (the Act).
The Complainant worked for Liam Delaney trading as Liam Delaney Haulage (the Respondent) as a haulage driver from 30thAugust 2010 until 3rdOctober 2011. Throughout the period of his employment the Complainant was paid at a rate of €412.00 per week. During the relevant period the national minimum wage was €8.65 per hour. The Complainant claims to have worked 60 hours 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 calculated the arrears due at €6,121.80 in respect of the breach under the Act.
The Complainant sought a statement from the Respondent, pursuant to Section 23 of the Act, on 17thNovember 2011. The Respondent failed to provide the statement. The Complainant referred his complaint under the Act to the Rights Commissioner on 5thJanuary 2012.
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.
The Court finds that the Tachograph records have no probative value for the purposes of establishing compliance with the provision of the Act. 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.Determination
The Decision of the Rights Commissioner is overturned and the Complainant’s appeal is allowed. It is the Determination of the Court that the Respondent pay to the Complainant the sum of €6,121.80 in respect of the contraventions of the Act found to have occurred.
Signed on behalf of the Labour Court
Caroline Jenkinson
19th March, 2013______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.