PWD1616

In this Determination the parties are referred to as they were at first instance. Hence Benitime Limited is referred to as the Respondent and Ioan Vlad Onit is referred to as the Complainant.

Proceedings at first Instance

The claim was referred to the Rights Commissioner /Adjudication Officer in conjunction with a number of other claims under various statutes. The within claim relates to an alleged underpayment in the Complainant’s wagesvis-�-visthe national minimum wage. A claim is respect of the same matter was also made pursuant to the National Minimum Wage Act 2000 (the Act of 2001). The Rights Commissioner / Adjudication Officer found that she lacked jurisdiction to investigate the claim under the Act of 2000 in circumstances in which the Complainant had not sought a statement in writing of the type referred to at s.23 of that Act.

Section 24(1) of the Act of 2000 provides: -

• 24.—(1) Without prejudice to any other action that might be brought against an employer under this Act or otherwise, but subject tosubsection (2), if an employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged under-payment to the employee, the employee or the employer, or the representative of either of them with their respective consent, may, by notice in writing containing such particulars, if any, as may be prescribed, refer the dispute to a rights commissioner for the rights commissioner's decision.

• (2) A dispute cannot be referred to or dealt with by a rights commissioner—

  (a) unless the employee—

  • • (i) has obtained undersection 23a statement of his or her average hourly rate of pay in respect of the relevant pay reference period, or

      (ii) having requested the statement, has not been provided with it within the time limited by that section for the employer to supply the information,

    and a period of 6 months (or such longer period, not exceeding 12 months, as the rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

    (b) where, in respect of the same alleged under-payment, the employer is or has been—

    (i) the subject of investigation by an inspector undersection 33or34, or

    (ii) prosecuted for an offence undersection 35.

Discussion

Section 5(6) of the Act of 1991 provides: -

• Where—
  • (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

    (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

  then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Section 24 of the Act of 2000 is expressed to be without prejudice to any other action that may be taken against an employer, under the Act of 2000 or otherwise, but the reference of a dispute concerning the minimum wage cannot be entertained where the conditions specified at subsection (2)(a) of that section are not met. It is to be assumed, in the absence of any indication to the contrary, that the Oireachtas intended that the conditions specified should apply in all cases.

Outcome

There is no doubt that the claim which the Complainant referred under the Act of 1991 relates to an alleged underpayment by reference to the national minimum wage. Section 24(2) of that Act makes it clear that a Rights Commissioner cannot entertain or deal with a dispute in relation to a non-payment of the national minimum wage unless the employee concerned has requested a statement of his or her earnings in accordance with s.23 of the Act. In light of that provision neither the Rights Commissioner / Adjudication Officer, nor this Court on appeal, has jurisdiction to entertain such a claim other than in accordance with s.24 of the Act of 2000. It follows that a Rights Commissioner (or this Court on appeal) cannot offset or overcome s.24(2) of the Act of 2000 by hearing the same complaint under the Act of 1991.

Accordingly the decision of Rights Commissioner Adjudication Officer must be set aside.

Signed on behalf of the Labour Court



Kevin Duffy
LS______________________
18 May 2016Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.