MWD152

This is an appeal by Krzysztof Karski (hereafter the Claimant) against the decision of a Rights Commissioner in his claim under the Nation Minimum Wage Act 2000 (hereafter the Act) against his former employers A.S Cars Limited and D.S Cars Limited (hereafter the Respondents).

The Claimant claims that he was underpaid by reference to the national minimum wage established by the Act. The claim relates to the full duration of the Claimant’s employment from 1^stMarch 2010 until 11^thFebruary 2014.

Non-appearance of the Respondent

The Respondents failed to appear at the hearing of the appeal. The Court is satisfied that the Respondents were informed of the date time and place of the sitting of the Court fixed for the hearing of this appeal.

Identity of the Employer

The claim as presented was against A.S Cars limited and / or D.S Cars Limited. The Claimant gave sworn evidence in which he told the Court that he worked in a business involved in the sale of used cars. He received two cheques in respect of his wages each week (or occasionally at longer intervals). One cheque was drawn on the account of A.S Cars Limited and the other was drawn on the account of D.S Cars Limited. According to the Claimant he was unaware that the business was being operated by two corporate entities when he commenced his employment. On his dismissal the Claimant received two P45s; one from A.S Cars and one from D.S Cars. He later came to understand that a Mr Alan Sexton was associated with A.S Cars Limited and a Mr David Sexton was associated with D.S Cars Limited. The business operated out of single premises. Both Alan Sexton and David Sexton worked from that premises and both dealt with customers without distinction. It was the Claimant’s evidence that he worked at valeting care in preparation for sale and there was no discernible distinction between parts of the business which suggested that it was owned or operated by two entities.

On the uncontested evidence of the Claimant it seems clear to the Court that A.S. Cars Limited and D.S. Cars Limited operated the business jointly. Section 1 of the Partnership Act 1890 provides that a Partnership is the relation that subsists between persons carrying on a business in common with a view to profit. In these circumstances the Court accepts the submissions of Counsel for the Claimant that the business in which the Claimant was employed was a firm comprising A.S Cars limited and D.S Cars Limited in partnership. Accordingly, at all material times A.S Cars Limited and D.S Cars Limited were jointly and severally liable to the Claimant as his employer.

The Claimant Case

The Claimant told the Court in evidence that throughout the period of his employment he worked from 8.30 am to 6.pm Monday to Friday and from 9.30.am to 4.pm on Saturdays. He received a 30 minute lunch break each day. He was paid a gross weekly wage of €367.34 per week.

Conclusion of the Court

The Court is satisfied that the Claimant complied with s.24(2) of the Act before he submitted his claim to the Rights Commissioner.

Based on the uncontested evidence of the Claimant is clear that the Claimant worked 51 hours per week. The weekly wage that he received equates to €7.20 per hour. In the period between 1^stMarch 2010 and 1^stFebruary 2011 the national minimum wage was fixed at €8.65 per hour. Between 1^stFebruary 2011 and 1^stJuly 2011 the national minimum wage was fixed at €7.65 per hour. From 1^stJuly 2011 the national minimum wage again stood at €8.65 per hour.

It is clear to the Court that throughout his employment the Claimant was paid less than the national minimum wage then prevailing. The Court calculates the extent of the underpayment as follows: -

223 week x €1.45 x 51 hours per week = €16,490.45

22 weeks x €0.45 x 51 Hours per week = €504.90

Accordingly, the arrears of wages now due to the Claimant is €16,995.30

Determination

The Claimant is awarded arrears of wages in the amount of €16,995.30. The award is against A.S Cars Limited and D.S Cars Limited jointly and severally.

The decision of the Rights Commissioner is set aside and substituted with the terms of this Determination

Signed on behalf of the Labour Court



Kevin Duffy
13th April 2015______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.