FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : MR STEPHEN CARWAY (REPRESENTED BY MCMAHON O'BRIEN SOLICITORS) - AND - MR AFONSO DA SILVA VACAS DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appealing Against A Rights Commissioner's Decision R-076002-Mw-09/Pob
BACKGROUND:
2. This is an appeal of Rights Commissioner's Decision No: r-076002-mw-09/POB. The issue concerns a claim by the worker that he was not paid in line with the provisions of the National Minimum Wage Act, 2000. The matter was referred to a Rights Commissioner for investigation. A decision issued on the 27th April 2011 and did not find in favour of the workers claim. On the 27th May 2011, the worker appealed the Rights Commissioners Decision in accordance with Section 27(1) of the National Minimum Wage Act, 2000. Labour Court hearings took place on 10th October 2012 and 31st January 2013. The following is the Court's Determination:
DETERMINATION:
The appeal before the Court was made by Mr. Alfonso Da Silva Vacas of the decision of the Rights Commissioner under the National Minimum Wage Act, 2000 (the Act). The Rights Commissioner found that he had no jurisdiction to hear the case as the Claimant had failed to obtain a statement under Section 24(2) of the Act.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr. Alfonso Da Silva Vacas will be referred to as “the Complainant” and Mr. Stephen Carway will be referred to as “the Respondent”.
First Preliminary Issue – Section 23 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.
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.”
Section 24 provides for either an employee or an employer, or the representative of either of them with their respective consent refer a dispute to a Rights Commissioner for decision. However, Section 24 (2)(a) states that a dispute cannot be referred to or dealt with by a Rights Commissioner unlessthe employee:
- (i) has obtained under section 23 a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or
- (ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,
- and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,
The Court dealt with this preliminary issue at the hearing held on 10thOctober 2012. The Complainant asserted that he had complied with Section 23 of the Act. Following the hearing, at the request of the Court, the Complainant supplied further information on this preliminary issue. Having received this information the Court issued a written decision to both parties, as follows:-
- “The Court refers to letter dated 7thMay 2008 from the Complainant to the Respondent which states, inter alia,
- “I am entitled to a dated payslip with a record of how much I am being paid per hour. I did indeed receive one for some time but have been given none for more than one year.”
This was followed up by the Complainant with another letter dated 21stMay 2008 to the Respondent stating,inter alia:- “14 days have passed and I do not have a reply from my letter I have sent you on 7thMay The way I see it, you are ignoring my request of the payments in Portugal and in Ireland; I do not have a written contract from you with terms and conditions, I have asked a few times in the past, so I am at a stage that I do not know how much I am paid an hour or how much you paid an hour, to see my rate each week. ….. As you are ignoring my letter I do not know how much you pay me.”
The Court notes that the authenticity of the letter dated 21stMay 2008 is disputed by the Employer.
In a letter dated 22ndAugust 2008, the Respondent responded as follows :- “The conditions of your employment are that you work a 35 hour week, for which you receive an hourly rate of pay from me (presently €14.82) that is well above the minimum wage for the work that you are employed to do.”
Having reviewed the information the Court is satisfied that included in the Complainant’s letter dated 7thMay 2008 was a request for details of his hourly rate of pay falling within the 12 month period immediately preceding the request. As Section 23 of the Act does not specify a statutory form for compliance with its provisions, the Court is satisfied that the above letter meets the requirement under Section 23 of the Act and the letter dated 22ndAugust 2008 was furnished in response.”
- “The Court refers to letter dated 7thMay 2008 from the Complainant to the Respondent which states, inter alia,
The Court proceeded to hear the substantive case on 31stJanuary 2013. At the conclusion of the hearing the parties requested the Court to withhold the Determination pending discussions of the issue between them. The Court provided time for the parties to avail of the opportunity to have such discussions. It was confirmed for the Court in September 2013 that those discussions were not successful, therefore the Court hereby issues its Determination on the claim under the Act.
The Complainant raised a number of other issues which were not relevant to his claim under the Act.
Second Preliminary Issue – Time Limit
The Complainant was employed by the Respondent as a Gardener from 3rdMarch 1999 until 30thJuly 2008. He referred his claim under the Act to the Rights Commissioner on 27thFebruary 2009, which was in excess of six months since the statement of earnings was obtained. Therefore, the Court decided to consider whether or not to extend that time limit to 12 months in accordance with Section 24(2) of the Act. Having considered the Complainant’s position the Court has decided to extend that time limit to 12 months and accordingly holds that the claim is not statute barred.
Position of the Parties on the Substantive Complaint
The Complainant alleged that he was paid less than the minimum wage for the ten month period from 1stJuly 2007 until the date he last worked for the Respondent 5thMay 2008. He said that he was paid €7.84 per hour and worked 39 hours per week. He disputed the Respondent’s assertions that he was paid well in excess of the national minimum wage and submitted Revenue details of PAYE Balancing statements from 2002 until 2008, together with copies of numerous payslips.
The Respondent stated that the Complainant was paid €14.82 per hour. It held that the non-wage elements of the Complainant’s remuneration package amounted to a sum well in excess of €10,000 per annum, as he was provided with living accommodation, electricity and hearing oil and a fully expensed van. The Respondent stated that the Complainant resigned his position on 30thJuly 2008, having been absent since 5thMay 2008. The Respondent produced information based on Revenue returns which indicated that the Complainant was paid in excess of the national minimum wage between January 2001 and July 2008.
The Respondent stated that there was a dispute between the parties on the question of the number of hours worked per week. The Complainant maintained that he worked 39 hours while the Respondent contended that he worked from 8.30am to 4.30pm, Monday to Friday, with one hour for lunch, giving 35 hours per week.
The Respondent denied that there was any breach of the Act. It held that even taking the Complainant’s claim at its height, when account is taken of the allowance provided for lodgings under the Act of €21.85 per week, together with the weekly rate paid as declared by the Complainant of €306.00, this gives a total weekly payment of €327.85, i.e. €9.37 per hour based on a 35 hour week.
Court Findings
Section 22(3) of the Act provides, in effect, that where an employer fails to keep records in respect of his or her compliance with a particular provision of the Act in relation to an employee, in proceedings before the Court the onus of proving compliance with that provision lies with the employer.
In this case there is a dispute between the parties concerning the rate of pay and number of hours worked per week. The Court is satisfied that the Respondent has failed to maintain adequate records to show that the Act was complied with in respect of the Complainant and thus carries the burden of rebutting the evidence given by him.
Having examined the Revenue Commissioners data together with the payslips provided to the Complainant it is indisputable that the rate of pay paid to the Complainant during the period cover by his claim was €306.00 per week. When account is taken of the lodging allowance of €21.85 per week, this yields him a rate of €327.85 per week. During the relevant period covered by the claim the national minimum wage was €8.65 per hour.
Based on the Complainant’s assertion that he worked 39 hours week and the lack of records by the Respondent to substantiate its contention that he worked 35 hours week, the Court is satisfied that he worked 39 hours, therefore his hourly rate of pay was €8.41 per week, a shortfall of 24 cent per hour.
Determination
The Court determines that the Complainant was underpaid by a total amount of €411.84 for the relevant period and accordingly requires the Respondent to pay the Complainant that amount in respect of his claim under the National Minimum Wage Act, 2000 within six weeks of the date of this Determination.
The appeal is allowed. The decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
4th November 2013______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.