FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : DUBLIN CITY EXPRESS - AND - SEAN DUFFY DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision R-135634-MW-13.
BACKGROUND:
2. The Employer and the Worker appealed the Rights Commissioner's Decision to the Labour Court in November 2013, and in January, 2014. The following is the Determination of the Court:
DETERMINATION:
This is a joint appeal by both Mr Séan Duffy (“the Complainant”) and by Dublin City Express (“the Respondent”) against the Decision of a Rights Commissioner dated 19thNovember 2013 under the National Minimum Wage Act, 2000 (“the Act”) which awarded the sum of €1,184 to the Complainant.
The Complainant appealed the Decision on the basis that the sum awarded by the Rights Commissioner was incorrect.
In its appeal of the Decision the Respondent submitted that the Complainant failed to comply with the mandatory requirements of Section 23 of the Act.
The Law Applicable
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 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.
The Complainant told the Court that he sent a letter to the Respondent in July 2013 requesting a statement of his earnings for the pay reference period, however, he was unable to produce any evidence to substantiate this. The Respondent told the Court that he never received this letter. The Court provided the Complainant with a period of five days to produce evidence to the Court that such a request was made, this was further extended at the request of the Complainant for a further eleven days.
The Complainant produced confirmation of a delivery by An Post to an address in Dublin 12 on 1stNovember 2013, this date was a number of months after the case was referred to the Rights Commissioner Service, which is now the subject of this appeal to the Court.
However, the Complainant failed to furnish the Court with any evidence to substantiate his contention that a letter was sent to the Respondent in July 2013 seeking the information required in order to comply with Section 23 of the Act.
In such circumstances, the Court is not satisfied that the Complainant has proven that he complied with the statutory obligation to request a statement in accordance with Section 23(1) of the Act. 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 deal with the Complainant’s complaint under the Act. Therefore the Court upholds the Respondent’s appeal and overturns the Rights Commissioner’s Decision.
The Court so decides.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th April 2014______________________
JMCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.