FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : AIDEN SMITH (REPRESENTED BY EAMONN P. GAFFNEY CHARTERED MANAGEMENT ACCOUNTANT) - AND - VIDMANTAS GAILEVICIUS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. An appeal of a Rights Commissioner's Decision No r-132659-mw-13/SR & r-132662-mw-13/SR.
BACKGROUND:
2. This case is an appeal by the Worker of Rights Commissioner Decision No: r-132659-mw-13/SR & r-132662-mw-13/SR. The Rights Commissioner in his Decision of the 9th January 2014 found against the Worker's claim. On the 17th January 2014 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. Two Labour Court hearings took place on 2nd April 2014 and the 20th June 2014.
The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr Vidmantas Gailevicius against the Decision of a Rights Commissioner in his claim against Mr Aiden Smith t/a Rapid Repairs under the National Minimum Wage Act 2000 (“the Act”). The Rights Commissioner found that the Respondent had not contravened the Act in relation to the Complainant.
The Court is satisfied that the Complainant has complied with the mandatory requirements of Section 23 of the Act.
The Respondent set up his panel beating and spray painting business in 2003 having been a panel-beater for many years. The Complainant was employed by the Respondent as a Mechanic from January 2006 until 9thMarch 2012. The claim under the Act was referred to the Right Commissioner on 11thApril 2013.
Summary of the Complainant’s Case
Mr Richard Grogan, Solicitor, Richard Grogan & Associates, Solicitors, on behalf of the Complainant contended that the Complainant normally worked 8 hours per day for 4 or 5 days per week (3 days from 2008 until 2010), however, based on the Respondent’s tax returns to the Revenue Commissioners, the figures suggest that the Complainant was underpaid by over €20,000.
Mr Grogan referred to a letter written by the Respondent to Ulster Bank in April 2012 where he states that the Complainant’s weekly wage was €500 per week. In his submission to the Court Mr Grogan states that this is consistent with the Complainant’s understanding of matters. However, he said that the Complainant did not maintain records of the hours he worked, there was no contract of employment in place and his payslips do not set out the number of hours worked. Mr Grogan contended that he was entitled to rely on the Respondent’s tax returns to the Revenue Commissioners to substantiate his claim under the Act.
Mr Grogan submitted details of the history of claims for Job Seeker’s Benefit & Family Income Supplement made by the Complainant to the Department of Social Protection. This showed the following:-
Claim Date Claim Closed Amount Claimed
2ndOct 2008 4thJuly 2010 €7,552.10
3rdSept 2010 10thSept 2010 €767.60
2ndDec 2010 21stMarch 2012 €4,960.00
Summary of the Respondent’s Position
Mr Eamonn P. Gaffney, Chartered Management Accountant, on behalf of the Respondent, denied that the Respondent was in breach of the Act and submitted that the Complainant was paid in excess of the national minimum wage. He told the Court that the Complainant’s hours of work varied depending on the amount of work available at the time. He said that reductions in hours came about by agreement with his employees, the Complainant had no difficulty with this and like all other employees he claimed Social Welfare benefits to supplement his income.
The Respondent said that at no time during the period of the Complainant’s employment with the Respondent had he ever raised this complaint as an issue. It was only raised after the Complainant’s employment ended.
The Respondent submitted information to the Court including copies of the Complainant’s P60s, these showed his total earnings from his employment with the Respondent in the years from 2006 until 2011, as follows:-
- 2006 - €12,999.96
2007 - €13,059.95
2008 - €14,419.98
2009 - €8,988.96
2010 - €14,027.72
2011 - €10,624.08
The Respondent submitted details of benefits paid to the Complainant by the Department of Social Protection covering the periods of claims made in 2010 and 2011. These Forms were signed by the Complainant and record the facts that he worked 24 hours per week during the period in 2010 and was paid €284.26 per week and 20 hours per week in the period in 2011 and was paid an hourly rate of €10.21.
Court’s FindingsHaving examined the submissions made the Court is not satisfied that the Complainant has submitted any facts upon which his claim could be grounded.
The Court is satisfied that the Respondent has produced significant records to substantiate its position. These records were not contested by the Complainant. Having examined the records the Court is satisfied that the Respondent was fully in compliance with the Actduring the currency of the Complainant’s employmentwith the Respondentand that no breach of the Act occurred.
Determination
Accordingly, the Court determines that the Complainant's complaint is not well-founded, the appeal is disallowed and the Decision of the Rights Commissioner is affirmed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
26th June, 2014______________________
HT.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Helen Tobin, Court Secretary.