MWD1510

FULL RECOMMENDATION

MWA/15/18

DETERMINATIONNO.MWD1510

(R-151506/151038-MW-14JOC)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000

PARTIES :

CLONTARF CASTLE LIMITED T/A CLONTARF CASTLE
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

SYLWIA MATIJUK
(REPRESENTED BY BLAZEJ NOWAK)

DIVISION :

Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Mr McCarthy

SUBJECT:
1. Appeal of Rights Commissioner's Decisions R-151506 &151038-MW-14/JOC

BACKGROUND:

2. The case before the Court concerns the Worker's appeal of Rights Commissioner's DecisionsR-151506 & 151038-MW-14/JOC. The Worker appealed the Rights Commissioner's Decisions to the Labour Court in accordance with Section 27(1) of the Minimum Wage Act, 2000. A Labour Court hearing took place on 29th October, 2015. The following is the Determination of the Court:

DETERMINATION:

This case is an appeal against a decision of a Rights Commissioner in a claim made by Ms Sylwia Matijuk (the Complainant) against her former employer, the Clontarf Castle Hotel (the Respondent), under the National Minimum Wage Act, 2000 (the Act). In his decision the Rights Commissioner decided that

‘the complaint is not well founded and fails’.

The Court is satisfied that the Complainant has complied with the mandatory requirements of Section 23 of the Act.

Summary of the Complainant’s case.

Mr Blazej Nowak, on behalf of the Complainant, contended that, for every week she worked, the Complainant worked for three additional hours without payment of the minimum hourly rate of pay to which she was entitled in accordance with the Act. Mr Nowak also contended on behalf of the claimant that at the termination of her employment she was paid in lieu of two weeks’ notice and as such was ‘technically’ at work in the notice period and did not receive a wage in line with that provided for by the Act in that period.

Mr Nowak also contended that, in accordance with s26(1)(a)(ii) of the Act, certain specified expenses of the employee in connection with the dispute should be awarded.

Summary of the Respondent’s position

Ms Catriona Forsyth, on behalf of the Respondent, contended that for all hours worked by her the Claimant was paid an hourly rate of €8.70 which was in excess of that provided for by the Act. In addition Ms Forsyth contended that payments to the Claimant during her period of notice were in line with the requirements of the Act.

Findings of the Court

Section 22(1) of the Act places an obligation on an employer to keep records showing compliance with the Act. Section 22(3) states:-

(3) Without prejudice to subsection (2) , where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a Rights Commissioner or the Labour Court, that the provision was complied with lies on the employer.

In the instant case the Claimant asserts that she, for every week she worked, worked an additional three hours at a rate below that provided for by the Act, i.e. she worked at a rate of €0.00 per hour. The employer asserts that certain records provided to the Court show that the Claimant was paid the correct amount for every recorded hour. It is common case that the Claimant had no role in the compilation of or validation (e.g. by ‘sign off’) of the records presented to the Court. The Claimant disputes the accuracy of the records presented to the Court insofar as she asserts that she worked hours in excess of those recorded. In this case, therefore, the Court finds that the Respondent failed to keep records in the manner required and accordingly the onus of proving compliance with the Act lies with the Respondent. The Court finds that this onus has not been satisfactorily discharged.

The Claimant also contended that during her period of notice during which she was paid in lieu of notice she was not paid in accordance with the provisions of the Act. Section 8(2) of the Act provides that:

(2) “Working hours” under this section shall include—

(a) overtime,

(b) time spent travelling on official business, and

(c) time spent on training or on a training course or course of study authorised by the employer, within the workplace or elsewhere, during normal working hours,

but shall not include—

(i) time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call,

(ii) time spent absent from work on annual leave, sick leave, protective leave, adoptive leave, parental leave, while laid-off, on strike or on “lock- out”, or time for which the employee is paid in lieu of notice, or

(iii) time spent on travelling between an employee's place of residence and place of work and back.

The Court finds that in accordance with Section 8(2)(iii) of the Act the Claimant’s case in respect of the application of the Act to time for which the Claimant was paid in lieu of notice cannot succeed.

The Claimant sought reasonable expenses in accordance with Section 26(1)(ii) of the Act and set out detail of expenses incurred by her in relation to attendance at the hearing of the Court. The Respondent contended that the claims before the Court were without merit and contended that no award should be made in respect of expenses.

Determination

The Court finds the Respondent in breach of the Act in relation to the rate applicable in respect of three hours per week for each of the weeks she worked. The Court finds that the Claimant’s claim in respect of the period during which she was paid in lieu of notice is misconceived.

Therefore, based on the findings of the Court, the decision of the Rights Commissioner is varied and the Claimant’s appeal partially succeeds. The Respondent should therefore pay the Claimant a total of €519.00 in respect of the breach of the Act and a total of €267.96 in respect of expenses of the Claimant in connection with the dispute. The Court orders the Respondent to pay these sums to the Complainant not later than six weeks from the date of this determination.

Signed on behalf of the Labour Court

Kevin Foley
16th November 2015______________________
SCDeputy Chairman

NOTE

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