ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00007904
Complaint(s):
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Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 |
CA-00010540-001 | 30/03/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 |
CA-00010540-002 | 30/03/2017 |
Venue: Ardboyne Hotel, Navan, Co. Meath
Date of Adjudication Hearing: 31/08/17 and the 10/10/2017
Workplace Relations Commission Adjudication Officer: John Walsh
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and under Section 24 of the National Minimum Wage Act, 2000 and under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Preliminary matter:
The Complainant’s representative raised the following preliminary matter in relation to the complaint that was filed under S.I. No. 36/2012 (Ref. No: CA-00010540-002). He stated that the Complainant filed this complaint in error. He meant to file a complaint under the Terms of Employment (Information) Act, 1994. By letter dated the 5th of July, 2017, he wrote to the Workplace Relations Commission and advised them of this error. He stated in this letter that the complaint that the Complainant wished to lodge related to the Terms of Employment (Information) Act, 1994 and not under S.I. No. 36/2012 (Ref. No: CA-00010540-002). He requested the Adjudicator to be allowed to make the change under the Terms of Employment (Information) Act, 1994.
The Respondent’s representative stated that the Complainant filed his complaint under S.I. No. 36/2012 (Ref. No. CA-00010540-002) and that he should not be allowed to change the complaint to a breach of the Terms of Employment (Information) Act, 1994.
Decision on Preliminary Matter:
It is quite clear from the claim form submitted by the Complainant that he wished to make a complaint under the Terms and Conditions of his Employment and not under S.I. No. 36/2012 (Ref. No. CA-00010540-002). When the complainant realised he made a mistake, he informed the Workplace relations Commission of this error on the 5th of July 2017. Therefore I will allow the Complainant to proceed with his complaint under the Terms of Employment (Information) Act, 1994.
Background:
The Complainant was employed as an assistant from the 1st of August 2015 to the 31st of October 2016. She alleges that she was not paid the minimum wage as required under Section 24 of the National Minimum Wage Act 2000. She also alleges that the Respondent breached Section 3 of the Terms of Employment (Information) Act, 1994. She filed a complaint with the Workplace Relations Commission on the 30th of March 2017. |
Summary of Complainant’s Case:
Complaint 1: Taken under Section 24 of the National Minimum Wage Act, 2000 Ref. No. CA-00010540-001 The Complainant stated that she did not receive her entitlements under the National Minimum Wage Act, 2000 during the course of her employment. The following is a summary of the breaches of the act; Minimum Wage Entitlements for 2015. The complainant stated that she was employed for 23 weeks in 2015 from the 30th of July 2015 to the 31st of December 2015. She has submitted records at the hearing to confirm this. The Complainant supplied a set of notes in respect of her weekly pay and the hours worked in a given week. These notes correspond to pay packets which the Complainant received from the Respondent. The documents show a breakdown of the money paid to the complainant in a given week and that which she should have been paid should she have been paid the minimum wage. With respect of 2015, it is claimed that the Complainant was paid a total of €5,567.21 for 23 weeks pay yet was entitled to €7,825.86 should she have been paid the statutory minimum wage for this period, the difference between both figures is €2,258.65. |
WEEK (2016) PAY RECEIVED MIN. WAGE ENTITLEMENT 1 €233.49 for 38.55 hours €9.15 per hour= €357.73 2 €222.99 for 37.1 hours €9.15 per hour= €339.46 3 €256.99 for 42.50 hours €9.15 per hour= €388.87 4 €178.99 for 29.50 hours €9.15 per hour= €269.92 5 €183.99 for 30.40 hours €9.15 per hour= €278.16 6 €218.49 for 36.25 hours €9.15 per hour= €331.68 7 €189.99 for 31.40 hours €9.15 per hour= €287.31 8 €188.10 for 31.21 hours €9.15 per hour= €285.57 9 €197.49 for 32.55 hours €9.15 per hour= €297.83 10 €178 for 22.25 hours €9.15 per hour= €203.58 11 €295.60 for 36.57 hours €9.15 per hour= €334.61 12 €396.00 for 42.45 hours €9.15 per hour= €388.41 13 €357.30 for 44.40 hours €9.15 per hour=€406.26 18+19 €320 for 40.00 hours €9.15 per hour= €366.00 20 €324.00 for 40.30 hours €9.15 per hour=€368.74 21 €324.00 for 40.30 hours €9.15 per hour= €368.74 22 €528.66 for 66.05 hours €9.15 per hour=€604.35 23 €304.00 for 38.00 hours €9.15 per hour=€347.70 24 €282.00 for 35.15 hours €9.15 per hour= €321.62 25 €207.33 for 25.55 hours €9.15 per hour= €233.78 26 €244.00 for 30.30 hours €9.15 per hour= €277.24 27 €239.33 for 29.55 hours €9.15 per hour= €270.38 28 €371.30 for 46.25 hours €9.15 per hour=€423.18 29 €237.30 for 29.40 hours €9.15 per hour= €267.01 30 €220.00 for 27.30 hours €9.15 per hour= €249.79 31 €211.35 for 26.25 hours €9.15 per hour= €240.18 32 €155.30 for 19.25 €9.15 per hour=€176.13 33 €253.30 for 31.40 €9.15 per hour= €287.31 34 €267.30 for 33.25 €9.15 per hour=€304.23 35 €241.30 for 30.10 hours €9.15 per hour= €275.41 38 €444.65 for 55.35 hours €9.15 per hour= €506.45 39+40 €353.30 for 44.10 hours €9.15 per hour= €403.51 Total Paid: (2015) €5,567.21 Total Min. Wage Entitlement: €7,825.86 Difference €2,258.65 Total Paid:(2016) €8,625.84 Total Min. Wage Entitlement: €10,462.88 Difference: €1,837.04 Total Difference/ Wage Claim = €2,258.65 + €1,837.04 = €4,095.69 |
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Summary of Respondent’s Case:
The Respondents representative accepts that the monies due to the complainant as outlined above is correct. |
Findings and Conclusions:
Based on the evidence presented by both parties, I find that this complaint is well-founded.
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Claim for Expenses by the Complainant’s Representative
The Complainant’s representative requested the adjudicator to approve the payment of expenses in relation to the complaint taken under the National Minimum Wage Act 2000.
He stated that the Complainant was obliged to have 3 consultations with him in relation to the preparation of the complaint.
The Complainant was obliged to attend 2 hearings.
That the Complainant has accrued legal costs in prosecuting her complaint.
Decision on Legal Expenses
The National Minimum Wage Act 2000 allows for incidental expenses to the Complainant. Legal costs do not fall into this category.
I award the Complainant €450.00 in expenses for having to attend a second days hearing.
Complaint no. 2: Taken under the Terms of Employment (Information) Act, 1994. Ref. No. CA-00010540-002
Summary of Complainant’s Case:
The Complainant’s Representative stated that the Complainant did not receive a written statement outlining her Terms and Conditions of Employment within two months of her commencement of employment contrary to Section 3(1) of the Terms of Employment (Information) Act, 1994.
Summary of Respondent’s Case:
The Respondent’s representative stated that he accepts the Complainant did not receive a written statement outlining her Terms and Conditions of Employment within two months of her commencement of employment.
Findings and Conclusions:
Based on the evidence presented by both parties at the hearing, I find that this complaint is well-founded.
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Decision: Relating to complaint no: CA-00010540-001
Section 24 of the National Minimum Wage Act, 2000 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.
Based on the evidence presented by both parties, I find that the complaint is well-founded. I order the Respondent to pay to the Complainant compensation in the sum of €4,095.69 for breaches of the National Minimum Wage Act, 2000. This sum must be paid within 6 weeks of the date of this decision.
Recommendation: Relating to Complaint No. CA-00010540-002
Section 7 of the Terms of Employment (Information) Act, 1994 requires that I make a recommendation in relation to the complaint in accordance with the relevant redress provisions of that Act.
Based on the evidence presented at the hearing, I find that this complaint is well-founded. I recommend that the Respondent pay to the Complainant €603 for breaches of Section 3(1) of the Terms of Employment (Information) Act, 1994. This sum should be paid within 6 weeks of the date of this recommendation.
Dated: 23/11/2017
Workplace Relations Commission Adjudication Officer: John Walsh