Complainant

Respondent

Anonymised Parties

An Apprentice Electrician

An Electrical Company

Act

Complaint Reference Nos.

Date of Receipt

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

CA-00019154-001

14/05/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019154-002

14/05/2018

The Complainant claims that he was paid less than the minimum wages while he was on trial for a three-month period with the Respondent prior to becoming an apprentice. The Complainant claims that while on ‘Block Release’ as part of his apprentice training, the Respondent did not allow him to accrue annual leave.  

The Respondent said that the Complainant’s claim with regard to minimum wage is outside the 6-month period permitted to take the case. Notwithstanding, he was paid its apprentice rate. The Respondent said that he was not entitled to accrue annual leave when he was on Block Release training.

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

The Complainant claims that he started with the Respondent on a three-month trial on 10 April 2017 and the trial period ended on 27 July 2017 prior to being registered as an apprentice. He said he was only paid €6.22 an hour during that trial period and he was entitled to the National Minimum rate of pay.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant claims that as part of his apprenticeship he had to go on Block Release training to college for approximately 6 months from November 2018. He claims that during that period he was advised by the Respondent that as he was not being employed with the company he was not entitled to accrue annual leave for that period. He claims that he is entitled to accrue holidays for that 6-month period while on Block Release and that should have been paid to him on the cession of his employment when he finished on 11 May 2018.

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

The Respondent claims that the Complainant approached it for work and he started an apprenticeship with it on 10 April 2017 and this included a 3-month trial period. The Respondent said that it checked and noted that the Complainant was already registered with SOLAS, as an apprentice from some time previously, (November 1999).

The Respondent stated that Section 5(b) of the National Minimum Wage states that the Act does not apply to the remuneration of a person who is an apprentice within the meaning of or under the Industrial Training Act, 1967, or the Labour Service Act, 1987, which the Complainant falls under.

The Respondent said that notwithstanding the abovementioned argument, the compliant refers to a trial period of approximately 3 months which ended on 10 July 2017. The complaint was referred on 14 May 2018, which is far in excess of the 6-month time period for taking a complaint and therefore the claim is out of time unless there is ‘reasonable cause’ to extend that period.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Respondent said that the Complainant went on his Block Release from 27 November 2017 until 4 May 2018, which is equivalent to 22 weeks approximately. The Respondent claims that he returned to the company after Block Release on 9 May 2018 for three days of work, when he then abruptly informed the Respondent on 11 May 2018 that he was finishing on that day.

The Respondent said that it held the opinion that the Complainant’s entitlement to annual leave goes from his start date with the company until the day before he went on Block Release on 26 November 2017 and he is not entitled to accrue any holidays while on Block Release.

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

Having considered the evidence submitted I am satisfied that the relevant dates the Complainant’s claim relates to are the 10 April 2017 until the 10 July 2017. The Complainant sent his complaint to the Workplace Relations Commission on 14 May 2018, which is nine months from the date of the alleged breach of the National Minimum Wage Act, 2000. I note that an Adjudication Officer may not entertain a complaint under the National Minimum Wage Act, 2000 if it has been referred after the expiration of the 6-month period as set out under Section 41 of the Workplace Relations Act 2015, where it states,

“41 - (6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7) Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if—

(a) in the case of a dispute relating to the entitlement of an adopting parent under the Act of 1995, it has been referred to the Director General after the expiration of the period of 6 months beginning on—

[…]

(d) in the case of a dispute relating to the entitlement of an employee under the National Minimum Wage Act 2000, it has been referred to the Director General after the expiration of the period of 6 months beginning on—

(i) the date on which the employee obtains a statement of his or her average hourly rate of pay in respect of the relevant pay reference period in accordance with section 23 of that Act,

(ii) in circumstances where that statement is not provided having been requested by the employee to be provided to him or her, the day after the date of expiration of the time within which that statement was required to be provided by the employer in accordance with that section, or

(iii) in the case of a dispute to which section 25 of that Act applies, the date on which the employee’s hours of work were reduced or alleged to have been reduced,

[…]

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

I note that the Complainant has not presented any reason for failing to lodge the complaint within the 6-month time period. Accordingly, the complaint is not well founded as it is out of time.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant claims that he is entitled to accrue annual leave while on the Apprenticeship training programme. The Respondent claims that he is not. Both parties were very aware of the Apprenticeship training programme provided by Solus, the authority with responsibility for Apprenticeship training, and made many references during the course of the hearing.

I note that SOLAS provides its own Apprenticeship Code of Practice for Employers and Apprentices. Having read that, it clearly sets out the defacto legal position of the apprentice and his/her employment entitlements, namely, at point 7 - Employment Entitlement’s where it reads “Throughout the apprenticeship the apprentice remains an employee of the employer. This includes any time the apprentice is attending an off-the-job training element (stage or phase). ... Employee statutory holiday entitlements continue to accrue during the off-the-job phases but must be taken during the on-the-job phases at times agreed with the employer.”

The principle of accruing holiday leave entitlement has been well established, and I am surprised the Respondent was not aware of that, particularly given the length of time it has been in operation and the number of Apprenticeships it claims to have been involved in. Accordingly, I am satisfied the Complainant’s case is well founded.

It was not disputed that the Complaint was on Block Release and I had asked the Complainant to provide me with specific details in relation to the dates and the hours worked, which were not forthcoming post hearing. However, I have being presented with evidence that the training programme that the Complainant attended ran from 27 November 2017 until 4 May 2018, which is approximately 22 weeks. This date period is sufficient for the Respondent to calculate the Complainant’s holiday entitlements under the Act.

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

The complaint is not well founded and must fail.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The complaint is well founded. The Respondent should calculate the amount of holiday entitlements owned to the Complainant for the period 27 November 2017 until 4 May 2018. This should be paid accordingly.

I also order the Respondent to pay the Complainant an additional €400 in compensation for the breach of Section 19 the Act.

National Minimum Wage Act - Organisation of Working Time Act – compensation.