Complainant

Respondent

Anonymised Parties

Apprentice plumber

Plumbing & Heating Service Provider

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00018323-001

05/04/2018

The Complainant started his employment with the Respondent on 12th October 2017. His employment was terminated on 15th March 2018. The Complainant was paid €250 gross and worked 40 hours a week. The hearing was held on 27th September 2018. Additional submission was received from the Complainant on 4th October 2018.

The Complainant claims that he was unfairly dismissed for exercising his right under the National Minimum Wage Act, 2000. The Complainant submits that he was offered an apprenticeship as a plumber with the Respondent and started his employment on 12th October 2017 with a weekly pay of €250 for 40 hours work. The Complainant argues that on 15th March 2018 he inquired about the apprenticeship arrangement with Mr E of the Respondent. He claims that later that day Mr D of the Respondent phoned him and told him that he was finishing up on the day. At the hearing the Complainant confirmed that he was happy to work for the pay he received of €250 for 40 hours a week on the basis of the agreement that the Respondent would sign him up for the apprenticeship.

The Respondent submits that the Complainant has less than 12 months service and in those circumstance this matter does not fall under the Unfair Dismissal Act. The Respondent submits that any mention of exercising the Complainant’s rights under the National Minimum Wage Act is solely brought up for the purposes of trying to bring this matter under the Unfair Dismissal legislation.

At the hearing the Respondent pointed out that it is a standard practice within the Respondent organisation to employ new employees on a 3-6 months trial basis. The Respondent claims that the new entrants are assessed during that time and a decision is made on whether or not they are suitable for apprenticeship. The Respondent confirmed that the Complainant was paid below the national minimum wage. However, he noted that it is a standard practice and the Complainant did not raise any concern in that regard. The Respondent submits that he spoke with the Complainant, the Complainant’s supervisor and some clients and decided that the Complainant was not suitable for apprenticeship.

The Complainant was employed by the Respondent from 12th October 2017 to 15th March 2018 when his employment was terminated. The Complainant had less than 12 months’ service. The dismissal was not in dispute.

Section 36(2) of the National Minimum Wage Act 2000 provides that the dismissal of an employee for exercising his or her rights under that Act shall be deemed to be an unfair dismissal.

“36. Prohibition of victimisation of employee by employer

(1) An employer shall not cause any action prejudicial to an employee for the employee having–

(a) exercised or having proposed to exercise a right under this Act,

(b) in good faith opposed or proposed to oppose by lawful means an act which is unlawful under this Act, or

(c) become, or in future will or might become, entitled in accordance with this Act to remuneration at an hourly rate of pay that on average is not less than the national minimum rate of pay, or a particular percentage of that rate of pay.

(2) Dismissal of an employee in contravention of subsection (1) shall be deemed to be an unfair dismissal of the employee within the meaning and for the purposes of section 6(1) of the Unfair Dismissals Acts 1977 to 2015 (but without prejudice to sections 2 to 5 of the Unfair Dismissals Act 1977, except that it is not necessary for the employee to have at least one year's continuous service with the employer, and those Acts, with the necessary modifications, shall apply accordingly.”

This section gives universal access to unfair dismissal legislation to employees who feel they have been dismissed due to exercising their rights under the National Minimum Wage Act and the limiting one year service requirement does not apply. The Complainant confirmed at the hearing that at no stage he questioned his rate of pay. He noted that he was happy to work for €6.25 per hour on the assumption that he would be entered into apprenticeship program. It is important to note that I must adjudicate only on the complaint before me brought under the Unfair Dismissal Act. Therefore, whether or not a correct rate of pay was applied and paid to the Complainant beyond the scope of this complaint.

Having considered the Parties’ submissions I find that the ground for dismissal the Complainant put forward is not supported by the evidence before me. I find that the Complainant was not dismissed for exercising his right under the National Minimum Wage.

I have decided that the Complainant was not dismissed for exercising his right under the National Minimum Wage Act. The Complainant does not have one year of service with the Respondent to bring a complaint under the Unfair Dismissals Act. I find therefore that I have no jurisdiction to adjudicate on this complaint.

Unfair dismissal- less than one year service – national minimum wage act