MWD171

FULL RECOMMENDATION

MWA/16/11

DETERMINATIONNO.MWD171

r-148344-mw-14/MMG

SECTION 27 (1), NATIONAL MINIMUM WAGE ACT, 2000 AND 2015

PARTIES :

FRESHCUT FOOD SERVICES LTD
(REPRESENTED BY PENINSULA BUSINESS SERVICES LTD)

- AND -

DIMITRIJ KARPENKO
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)

DIVISION :

Chairman: Mr Haugh
Employer Member: Ms Doyle
Worker Member: Ms O'Donnell

SUBJECT:
1. An appeal of a Rights Commissioner's Decision No: r-148344-mw-14/MMG.

BACKGROUND:

2. This case is an appeal by the Worker of a Rights Commissioner Decision no: r-148344-mw-14/MMG. The Rights Commissioner in his Decision of the 15 November 2016 found against the Worker's claim. On the 6 December 2016 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 8 February 2017 October 2015. The following is the Court's Determination:

DETERMINATION:

This is Mr Karpenko’s appeal from a decision of a Rights Commissioner (r-148344-mw-14/MMG) dated 15 November 2016. The Rights Commissioner decided at first instance that the claim under the National Minimum Wage Act 2000 (“the Act”) failed. The notice of appeal was received by the Court on 6 December 2016. Mr Karpenko is referred to as the Complainant in the within determination, and Freshcut Food Services Limited as the Respondent.

There is no dispute between the parties in relation to the relevant facts. The Complainant was employed by the Respondent from 15 July 2013 to 28 February 2014 as a Production Operative. The Complainant was presented with, and signed, a document entitled “Statement of Main Terms of Employment” on 15 July 2013 which document was purported to be a statement for the purposes of section 3 of the Terms of Employment (Information) Act 1994. That Statement provided,inter alia, in relation to the Complainant’s hours of work:

“Your normal hours of work are between 9.00 pm. (sic) to 9.00 am. (sic) Monday to Sunday. Shifts are six days a week as per roster with a 30 minute break and two 15 minute breaks each day. You may be required to work additional hours when authorised and as necessitated by the needs of the business.”

Notwithstanding this provision in the written Statement, the representative for the Respondent informed the Court at the hearing of the appeal that the Complainant did not work in excess of 40 hours in any one week during the course of his approximately 7.5 months of employment with the Respondent. This was not contested by or on behalf of the Complainant.

The Complainant, through his solicitor, made a request, pursuant to section 23 of the Act for a statement of his average hourly rate of pay for the pay reference period 17 February 2014 to 21 February 2014. The request was made by letter dated 9 April 2014. The Respondent replied to the request by letter dated 10 June 2014 and stated that the Complainant’s average hourly rate of pay for the pay reference period identified in the request was €10.00 per hour. In fact, the Complainant was recorded as having worked 33.47 hours in the aforementioned pay reference period and he was paid €337.50 gross for that period. The national minimum wage at the relevant time was set at €8.65.

The Parties’ Positions

Mr Grogan, solicitor for the Complainant, submitted to the Court that his client’s appeal was premised on the wording of section 8(1)(a) of the Act as interpreted by a previous division of this Court inO’Leary International Limited v Viktors GurkovsMWA/12/24. Mr Grogan submitted that having regard to the subsection (1) of section 8 read in its entirety, the Complainant is entitled to receive payment at the national minimum wage rate for 66 hours during the pay reference period in respect of which the complaint was made because the written Statement issued to the Complainant provided for a weekly working week of 66 hours (i.e. 72 hours less 6 hours’ breaks).

Ms McFerran of Peninsula Business Services Ltd, on behalf of the Respondent, submitted that it is not reasonable to expect an employer to pay an employee for hours which the employee did not work; the Complainant was paid €10.00 per hour for each of the 33.47 hours he worked during the relevant pay reference period and, therefore, there was no breach of the Act. She further submitted that section 8(2) of the Act lists certain activities which come within the definition of “working hours” for the purposes of section 8 and others which are expressly excluded from the definition. She stated that the Complainant was not on standby or on call outside the hours he actually worked and was at liberty to utilise his time how and where he wished on those occasions and that, therefore, only the time he actually worked comes within the definition of “working hours”.

Discussion and Decision

The provision in relation to working hours in the Statement signed by the Complainant is quite extraordinary and may not be in accordance with certain other legislative provisions not before the Court in this appeal. (For the avoidance of doubt, the Court is not drawing any conclusions in this regard, on this occasion.)

Leaving that aside, it is clearly the case that the Complainant was paid in excess of the national minimum wage for the hours that he actually worked/was required to work during the relevant pay reference period. The appeal advanced on his behalf is that he should be paid for 66 hours during that pay reference period. Mr Grogan places particular emphasis on the following wording in section 8(1) of the Act:

“(1) For the purpose of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act, but subject to section 9, “working hours”, in relation to an employee in a pay reference period, means—
(a) the hours (including a part of an hour) of work of the employee as determined in accordance with—
(i) his or her contract of employment,
……
or
(b) the total hours during which the employee carries out or performs the activities of his or her work at the employee's place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work,
whichever, in any case, is the greater number of hours of work.”

As mentioned previously, Mr Grogan is also relying on a determination of a previous division of this Court inO’Leary International Limited v Viktors GurkovsMWA/12/24. In that case, the Court stated, in reference to the National Minimum Wage Act of 2000: “That Act was enacted to establish a national minimum rate of pay which is expressed in terms of a rate applicable to every hour worked.” This is the nub of the matter in the within appeal: the Complainant worked 33.47 hours in the relevant pay reference period; he was paid an hourly rate in excess of the then national minimum wage in respect of “every hour worked”. The determination of this Court inO’Leary Internationalis not authority for the claim being advanced on behalf of the Complainant i.e. that he is entitled to be remunerated for hours he did not and was not required to work. It is authority for the proposition advanced on behalf of the Respondent in the within appeal to the effect that the Act provides that the Complainant is entitled to be remunerated at the applicable national minimum wage for the hours he actually worked.

The appeal fails.

The Court so determines.

Signed on behalf of the Labour Court

Alan Haugh
CR______________________
9th February, 2017Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.