FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : TANSEY TRANSPORT LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRELAND) LTD) - AND - MAREK ROG (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) DIVISION : Chairman: Mr Haugh Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. An appeal of a Decision of a Rights Commissioner no: r-139807-mw-13/DI.
BACKGROUND:
2. The Complainant states that he was not paid the national minimum wage during the time of his employment. Three Rights Commissioner hearings took place on the 24th September 2013, 25th February 2014 and 15th April 2014. The Rights Commissioner issued his Decision on the 14th July 2015.
The Employer appealed the Decision of the Rights Commissioner to the Labour Court on the 19th August 2014, in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on the 30th September 2015.
DETERMINATION:
Background
- 1. The Claimant commenced employment with the Respondent as a driver on 4 July 2008. It is common case that the Claimant terminated his own employment with immediate effect in the course of a telephone call to the Respondent on 28 September 2012 at which time he was on a week’s paid annual leave from his employment.
2. The P45 issued by the Respondent to the Claimant records the date of cessation of employment as 26 October 2012.
3. The Claimant’s legal representative submitted a written request to the Respondent pursuant to section 23 of the National Minimum Wage Act 2000 (“the Act”) on 12 December 2012 in respect of the period 22 November 2012 to 26 November 2012.
4. The Claimant’s legal representative submitted a second written request to the Respondent pursuant to section 23 of the Act on 25 September 2013 in respect of the period 8 October 2012 to 12 October 2012.
5. The Claimant referred a dispute to a Rights Commissioner pursuant to section 24(1) of the Act. The Rights Commissioner found in the Claimant’s favour and made an award of compensation under the Act.
- 1. The Claimant’s written submission to the Court states that his employment terminated on 28 September 2012. The Claimant’s representative, nevertheless, submitted to the Court that the Respondent should be held to the date of cessation stated on its own document (the P45 it issued to the Claimant) i.e. 26 October 2012. The Court questioned the Claimant about the circumstances in which his employment came to an end. The Claimant told the Court that he terminated his employment by telephone call on 28 September 2012. As he did not notify his employer that he intended to work a notice period, the Court is obliged to find that the Claimant’s employment terminated immediately following the aforementioned telephone call.
2. It follows that the Claimant was not in the Respondent’s employment during the period 22 November 2012 to 26 November 2012, the period to which the first request under section 23 of the Act refers. This request was therefore not a valid request under the Act.
3. Section 23(1) of the Act provides: “Subject to subsection (2), an employee may request from his or her employer a written statement of the employee's average hourly rate of pay for any pay reference period (other than the employee's current pay reference period) falling within the 12 month period immediately preceding the request.”
4. The second request for a statement of the Claimant’s average hourly rate of pay was submitted by the Claimant’s representative on 25 September 2013. This request was made in respect of the period of 12 months immediately preceding the request i.e. it relates to the pay reference period 8 October 2012 to 12 October 2012. However, as the Court has already determined on the basis of the evidence before it that the Claimant’s employment terminated on 28 September 2012, it follows that the second request made pursuant to section 23 of the Act relates to a period when the Claimant was no longer in the Respondent’s employment and is therefore an invalid request.
5. Having regard to all of the foregoing, the Court finds that the Claimant failed to comply with the statutory requirement to request a statement of his average hourly rate of pay under section 23 of the Act which is a condition precedent that must be satisfied before a person can refer a dispute to a Rights Commissioner under section 24 of the Act.
6. The decision of the Rights Commissioner is overturned.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
23rd October, 2015______________________
CRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.