FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : WICKLOW RECREATIONAL SERVICES LTD (REPRESENTED BY LAW PLUS, SOLICITORS - AND - MAREK MARCINIUK (REPRESENTED BY BLAZEJ NOWAK) DIVISION : Chairman: Mr Haugh Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. An appeal of a Decision of a Rights Commissioner no: r-150023-mw-14/EH.
BACKGROUND:
2. This case is an appeal by the Worker of a Rights Commissioner Decision no: r-150023-mw-14/EH. The Rights Commissioner in his Decision of the 27th July 2015 found against the Worker's claim. On the 24th August 2015, 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 27th October 2015. The following is the Court's Determination:
DETERMINATION:
Background
- 1.The Claimant was employed by the Respondent as a Leisure Attendant from 1 December 2008 until 8 July 2014.
2.The Claimant’s contract of employment provides, at clause 7, that the “Employee’s hours of work are as required.”
3.The Claimant’s written submission to the Court states that he was “required to be available for work at least 16.7 hours per week”.
4.This Court, in Determination DWT/14/123, previously determined that the Claimant was engaged on a zero-hours contract within the meaning of section 18 of the Organisation of Working Time Act 1997. The Court in that case upheld an award made to the Claimant by the Rights Commissioner in respect of a breach of said section 18 that occurred during an 8-week period in September through October 2013.
5.The Claimant unsuccessfully referred a complaint under the National Minimum Wage Act 2000 to the Rights Commissioner in respect of the same 8-week period.
6.The Rights Commissioner held as follows in decision r-150023-mw-14/EH:
“I find therefore that the matter concerning these 8 weeks has already been adjudicated upon. I find that it is not then appropriate to make another claim in respect of the same matter. I find that this claim is not well founded and should fail.”
7.This appeal has been brought by the Claimant against the aforementioned decision of the Rights Commissioner.
- 8.The Claimant submits that he was not in fact engaged on a zero hours contract and that he was not given any work by the employer during the period September to October 2013 and accordingly was not paid during this period.
9.The Claimant is seeking compensation of €8.65 per hour for 16.5 hours x 8 weeks, less the amount awarded by the Court in respect of the breach of section 18 of the Organisation of Working Time Act 1997 (i.e. €318.53). In summary, the Claimant is seeking compensation of €837.07; he is also seeking expenses of €50.25.
10.The Claimant’s written submission to the Court states: “In the Labour Court decision DWT14123 the Claimant was found to have been contractually entitled/and required to be available to at least 16.7 hours per week.”
11.When questioned by the Court was to where this statement is to be found in Determination of DWT/14/123, the Claimant’s representative accepted that, in fact, the Court made no such finding in its Determination.
12.The Respondent’s position is that the Claimant was employed by it on a zero-hours contract, at all material times.
13.The Respondent submits that the Claimant has already recovered compensation in respect of a breach of section 18 of the Organisation of Working Time Act 1997 and is thereby precluded from recovering under the National Minimum Wage Act 2000 in respect of the same period.
- 14.Having considered the Parties’ submissions in some detail, the Court reaffirms the decision of the Rights Commissioner in full. The Claimant was employed at the material time on a zero-hours contract. He has previously been awarded compensation for a breach of section 18 of the Organisation of Working Time Act 1997. No breach of the National Minimum Wage Act 2000 occurred in the Claimant’s case during the period September through October 2013.
15.The Appeal fails.
16.The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
CR______________________
3rd November 2015.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.