FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : WALTON LOGISTICS LIMITED (IN LIQUIDATION) - AND - ROBERT GORCZYCA (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-124118-mw-12/JT.
BACKGROUND:
2. This case is an appeal by the Worker of Rights Commissioner's Decision No: r-124118-mw-12/JT. The issue concerns the Worker's claim that he was paid less than the national minimum wage when the number of hours and days he worked per week were taken into account. The dispute was referred to a Rights Commissioner for investigation. The Rights Commissioner's Decision was issued on the 4th April, 2013. On 3rd May, 2013, the Worker appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 27(1) of the National Minimum Wage Act, 2000.
A Labour Court hearing took place on 8th October,2013 in Thurles Co. Tipperary.
The following is the Court's Determination:-
DETERMINATION:
On 3rd May 2013 Mr Robert Gorczyca (the Complainant) appealed to the Court under the Minimum Wage Act 2000, (the Act) against Rights Commissioner's Decision No r-124118-mw-12/JT issued on 4th April 2013. In the complaint he alleged that Walton Logistics Ltd, (the Respondent), his former employer, paid him less than the national minimum wage then in force. The Rights Commissioner decided as follows:-
“no written request was presented to the hearing as per Section 23. Therefore the claim fails.”
The Complainant appealed against that Decision to this Court.
The case came on for hearing on 8th October 2013.
The Complainant attended and was represented at the hearing by Mr Andrea Cleere SIPTU.
The Respondent neither attended nor was represented at the hearing. The Court had been notified that the Respondent Company was in liquidation. The Court notified the Liquidator of the date and time of the hearing. He did not attend and was not represented at the hearing.
Background
The Respondent operated a long haul transport company. The Complainant worked for the Respondent as a long distance truck driver from August 2008 to December 2012. He says that he was paid a daily rate of €55 per day. He stated that his normal working hours amounted to 12 to 14 hours per day. He submitted copies of pay slips that disclose that his pay each week was a multiple of €55 depending on the number of days he worked. He calculates that he was underpaid the following amounts
2010 €6867.43
2011 €7541.37
2012 €2933.94
He supplied supporting documentation in respect of those years.
He further submits that he was underpaid in in respect of 2008 and 2009 but was not in a position to submit documentation in respect of those years. He stated however that his working pattern in 2008 and 2009 was similar to that which he worked in 2010.
Neither the Respondent or the Liquidator attended or made any submissions to the Court.
Findings of the Court
The Court examined the documentation submitted by the Complainant. The Court sent the documents to the Liquidator for comment after the hearing. No comments or submissions were received from the Liquidator.
The Complainant told the Court that he submitted a Section 23 letter to the Employer and provided a copy of the certificate of posting in support of that contention. On the basis of the evidence the Court finds that the Complainant submitted a Section 23 letter to the Employer prior to submitting a complaint to the Rights Commissioner.
The Court examined the documents provided by the Complainant. The Court finds these consistent and credible. The Court further finds that the Complainant was not paid the appropriate minimum hourly rate of pay while employed by the Respondent.
The Court calculates the shortfall in payment to him as follows
2008 €2,000
2009 €6,000
2010 €6867.43
2011 €7541.37
2012 €2933.94
Total underpayment €25,342.74
Determination
The Court determines that the complaint is well-founded. The Court orders the Respondent to pay the Complainant the sum of €25,342.74 outstanding under the Act. The Rights Commissioner’s Decision is set aside.
The Court so determines.
The pay slips are consistent on this point.
Signed on behalf of the Labour Court
Brendan Hayes
6th Febuary, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.