Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00020518-001

12/07/2018

This case involves a claim for the National Minimum Wage in respect of a disputed classification in a period of employment which transcended September 2017 to January 2018, after which the complainant was classified and paid as an Apprentice Spay Painter. The Complainants case is that Employment ended without warning in March 2018 and the claim followed that event. The Respondent disputes the claims made.

Both parties were represented. Both parties made helpful written submissions. The Respondent made a post hearing submission on the Overtime claimed, and the typical payment system for Apprentices, which was filed by a Senior manager at the Specified Body referred to below. This was forwarded to the complainant but did not illicit a response.

Counsel for the Complainant outlined that he had worked for the Respondent for a period of 20 September 2017 to 8 March 2018. He had expected to be registered as an Apprentice, but issues arose where this did not follow. He submitted that he was owed a sum of €3,183.95 as he had worked below the minimum wage threshold. This amount incorporated a €407.00 overtime claim.

The Complainant had a familial link to the business, had commenced working valeting when he was advised of an Apprenticeship at the business. He commenced work on 20 September,2017 on the 3-day trial of Spray painting and commenced proper on September 25, 2017. He completed forms for the Apprenticeship in October. This was to comprise of a 4-year qualification period interspersed with 6 months study. He was not provided with a contract of employment or signed off for Organisation of Woking Time Act purposes. He was not registered as an Apprentice until 18 January 2018. He experienced a delay in securing an eye test, a requirement of the Apprenticeship. This was undertaken on 9 January 2018 and cost €45. The respondent undertook to pay for this but did not do so.

Counsel outlined that the National Minimum Wage amounted to €9.25 in 2017 and €9.55 in 2018. The Complainant was disadvantaged by the Respondent not commencing him as an Apprentice. She submitted that the complainant ought to have been paid the Minimum wage as a default position for not having been registered as an Apprentice.

The Complainant submitted a separate sheet on which the differential between Apprentice and Minimum Wage was calculated in 2017, 2018 and Overtime calculations which totalled €3 ,183.95 The Complainant submitted that Section 5 of the Act did not provide for Apprenticeship pay and this was a free-standing claim.

The Complainant submitted the Apprenticeship Code of Practice for Employers and Appendices dated August 2016. In drawing the Hearing attention to the document, the Complainant referred to Solas approval for Statutory Apprentices:

“The start date of a statutory apprenticeship is the date the apprentice registration is approved by Solas “

The Complainant submitted that the Employer is obliged to

1 Apply for approval to train apprentices

2 Notify a specific body within two weeks of an apprentice commencing work.

The Complainant contended that the specified body was not notified in the requisite period, which in turn disadvantaged the complainant.

In response to a request for a copy of the Section 23 notification, the Complainants legal team furnished a document dated 19 April 2018.

On the complaint form the Complainant entered 15 March 2018 as the latest pay date in which he received less than the minimum wage. He also entered that the date by which the Section 23 statement was to be furnished stood at 26 June 2018.

On March 7, 2018, the Complainant learned that his Dublin study block was to commence at the end of April. He went to work next day, having had annual leave, to learn that Apprentices were to be discontinued immediately at the Respondent business. The Complainant was devastated, and his hopes of an apprenticeship had expired.

On arrival to collect his pay cheque on March 15, the Complainant had an altercation with the Owners and understood he had been threatened for seeking legal advice.

The Complainants legal team furnished some letters regarding post-employment considerations. The Complainant confirmed that he did not raise the topic of his Apprenticeship starting date directly with the Respondent during his employment.

The Respondent operates a Panel Beating/Spay Painting business. The Respondent disputed the claim. The Solicitor outlined that the complainant had sought work in September 2017. He expressed an interest in becoming an Apprentice Spray Painter. He commenced a two-week trial on 20 September 2017.He was to receive a 1st Year Apprentice pay rate of €195.25 gross. He received this amount and the Respondent disputed any further liability in this regard.

The Respondent outlined that the complainant had sought registration as an Apprentice Spray Painter on 4 October 2017. The respondent requested the necessary administrative forms from the specific body. The Apprentice ship Form was co signed by the complainant and the Respondent on 9 October 2017.An Eye test was the only outstanding matter and the complainant undertook to complete this within a few days, after which he would return all the forms to the Respondent.

Twelve weeks evolved before the Complainant completed the eye test. The Respondent had jogged his memory a few times to get it done. The Respondent sent the Apprenticeship forms to the specific body on 15 January 2018. The respondent contended that the Complainant was registered as an Apprentice 9 days post his participation in the mandatory eye test.

The Respondent listed the Apprenticeship pay rates over the 4-year training and confirmed by exhibition of pay slip dated October 2017 a weekly payment of €195.25 gross. The Complainant had not sought the funds to sponsor the eye test.

The Respondent also exhibited communication with the specified body dated October 6, 2017. The Respondent also included a confirmation sent to the specified body on 15 January which linked the commencement of Apprenticeship with the returned Apprenticeship form.

The respondent submitted that the Complainant was paid Apprentice rates as agreed. He worked under the Head Spay Painter. They exhibited an extract from a Solas Document on apprenticeship.

“For this Vehicle Body repairs apprenticeship, the employer pays the apprentice while he is being trained on the job. The rate of pay is agreed between the employer and the apprentice” ……. The allowance is paid by the specified body “

During the conclusion of the hearing, the Respondent referred to a Social media posting by the Complainant which placed the company in a poor light and from which a residual unease remained.

One week after the hearing, the Respondent filed an opposition to overtime being included in the claim as the complainant ought to have been aware of the time back system. He had received some days off and had not approached the business with his claim for overtime earlier than the day of hearing.

They also submitted a note from a Senior manager at the specified body outlining the current arrangement for managing an Apprentice in pay terms. It mentioned that apprentice rate would be typical prior to commencement of the apprentice programme.

I have considered both parties’ submissions both oral and written in this case. While, I detected a considerable unease regarding the circumstances surrounding the sudden conclusion of employment, this claim is for application of the national minimum wage from September 20, 2017 to January 17, 2018. The latter augmentation of overtime by the complainant will be addressed below.

For me to hold jurisdiction in the case, the complainant must have complied with the strict terms of Section 23 of the Act.

Employee entitled to statement of average hourly rate of pay for pay reference period.

23

23.— (1) 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.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(4) The employer shall, within 4 weeks after receiving the employee’s request, give to the employee a statement in writing setting out in relation to the pay reference period or periods—

(a) details of reckonable pay components (including the value of all forms of remuneration) paid or allowed to the employee in accordance with Part 1

(b) the working hours of the employee calculated in accordance with section 8,

(c) the average hourly pay (including the value of forms of remuneration other than cash payments) paid or allowed to the employee, as determined in accordance with section 20, and

(d) the minimum hourly rate of pay to which the employee is entitled in accordance with this Act.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given to the employee.

In considering the facts of the case as presented, I was struck by the cardinal omission of the provision of a statement of terms of employment in this case. This could have clarified from the outset just where the Employer sat in relation to the application of the national minimum wage. I accept that a statement of terms of employment did not feature in this case. I have, however, considered the pay slips presented by the Respondent which reflect Year 1 Apprentice less statutory deductions. I accept that Section 5 of the National Minimum Wage Act 2000 does not apply to Apprentices.

Therefore, the questions before me are:

1.       Was the Complainant a bone fide Apprentice during the period claimed and thus outside the parameters of this Act

2.       Whether the Complainants failure to action Section 23 during his employment has compromised his claim?

1.Having heard both parties on their respective interpretation of just when Apprenticeship commenced. I must find that that the Complainant did not become a bona fide Apprentice until the completed form (eye test attached) was received by the Specified body on January 18, 2018. This ought to have resulted in a retrospective analysis of wages paid during the claim period. This was not the sole preserve of the employer. I am satisfied that the two periods of work must be classified differently . The Respondent confirmed that the Specified body had not commenced any payment of apprentice allowance to the respondent in respect of the complainant .

In Grace Signs and Margaret Whelan MWD 032, the Labour Court found that a tentative agreement to realise a partnership placed the complainant successfully into the realm of the National Minimum Wage and awarded arrears.

I find that the tentative agreement to host the complainant as a 4-year Apprentice was in contemplation by both parties in September 2017 but was not actualised until January 18. I find that the period at the centre of this case is September 20, 2017 (minimum wage €9.25) and January 18, 2018 (minimum wage €9.55)

2.The Complainants representatives relied on a letter dated 29 May 2018 as the required statement submitted in accordance with Section 23. They did not receive a response to the request given the   unease between the parties. I find that the letter of May 29, 2018 complies with the strict criteria set down in Section 23. Mansion House T/A Fado Restaurant and Jose Zquieroo MWD 43

This allows me to consider the claim in accordance with Section 24(2)(ii) of the Act. The claim was filed on 12 July 2018 and is within the 6-month time window. I find that I have the jurisdiction to decide on this claim.

(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee ’ s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer under section 41of the Workplace Relations Act 2015]—

(a) unless the employee—

(I) has obtained under section 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 Adjudicator  may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

I have considered all the evidence before me and find that the complainant is entitled to receive the 2017 and 2018 National Minimum Wage covering the antecedent period before the Apprenticeship began. I have given some thought to the post hearing note from the specified body but must disregard this as it was not admitted at hearing or canvassed.

It is regrettable that the parties did not have a real time discussion on wages as I appreciate that the Respondent was not aware of the claim until some two months post completion of employment. However, the company ought to have furnished a response as requested .

In Mansion House /Fado restaurant , the Labour Court reflected on the importance of Employer records in cases such as this .

“Section 22(3) of the Act provides, in effect, that where an employer fails to keep records in respect of his or her compliance with a provision of the Act in relation to an employee, in proceedings before the Court the onus of proving compliance with that provision lies with the employer. In this case the Court is satisfied that the employer has failed to maintain adequate records to show that the Act was complied with in respect of the claimant and thus carries the burden of rebutting the evidence given by the claimant.The Court has considered all the evidence before it in this case and finds that the employer has failed to prove, on the balance of probabilities, that it complied with the Act in respect of the claimant during the period to which his claim relates. The Court has, however, some difficulty in quantifying the level of arrears due to the claimant. On balance the Court believes that the amount claimed is overstated. The Court has measured the amount due to the claimant by way of arrears of payments under the Act at €650 and makes an award in favour of the claimant in that amount.”

I have considered the latter-day augmentation of claim for overtime worked and find that I must agree with the Respondent in this regard. I cannot allow the claim for overtime.

I have found that the claim for payment of National Minimum Wage from 20 September 2017 to January 17, 2018(minus the Apprentice Wage paid) to be well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

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 under that Act.

I have found the claim to be well founded and I order the Respondent to pay the complainant the differential in arrears to the amount of € 2,760 .00:

September 20 -December 31, 2017 @€9.25

January 1, 2018 – January 17, 2018 @€9.55

I would also suggest that the Respondent gives some consideration to maintaining records of all employees who receive the National Minimum Wage at the business.

National Minimum Wage during a working period.