ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00016135
Parties:
| Complainant | Respondent |
Anonymised Parties | A merchandiser | A retail merchandiser |
Complaint:
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-00020907-001 | 31/07/2018 |
Date of Adjudication Hearing: 31/10/2018
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Summary of Complainant’s Case:
The complainant started working for the respondent on the 16th September 2013 and was a merchandiser. His employment ended on 15th February 2018. The complaint relates to unpaid hours accrued during his employment. The complainant worked a 45-hour week but could only claim payment for 35 hours. He claimed these as billable hours from the major client serviced by the respondent. He worked other hours, for example when he was driving to shops or completing administration. He carried out sales calls and ordered stock. There was 13 pages of documentation to fill in with the local shop manager. The complainant’s main issue was the driving. The complainant was paid expenses and he did not include these expenses in the calculation of his hourly rate of pay. His last hourly rate of pay was €9.55 per hour.
The complainant outlined that he worked a six-day week as he completed the administration at the weekend. He worked eight hours per day and there was no set break. The respondent did not record breaks and he took breaks when he could, for example when waiting for a sign-off. The complainant was emailed instructions every week with a “call file” with a list of shops and estimated times. For some, he could only claim for the time stated in the call file.
The complainant said that he was claiming €17,500 over the four years for driving and €2,000 euro for the administration work.
The complainant commented that a sales call took far longer than the 3 to 4 minutes suggested by the respondent and could take 30 minutes as there were many products on the stock card. He had no real issue with the sales call. He said that it was the courier, the assembly work and the driving that was so demanding. He was told to do this, and the respondent delivered packages to his home. |
Summary of Respondent’s Case:
The respondent outlined that the nature of the work is that the client provides an allocation of hours in stores across the country. The promotion cycle changes every three weeks. There is a need for transparent billing. The hours are flexible, in particular if the employee wanted to build up hours and work in different stores. Staff can choose stores, for example close to where they live. Most people seek as many hours as possible.
The merchandisers working day starts when they reach their first store. They are not working while in transit between stores. There is no set time to be at a store. The onus is on the teams to take rest breaks. As the hours are variable and the work can take longer than the allocated time, the respondent could not schedule rest breaks. The respondent needed to be able to highlight what the additional work was for billing purposes. The only reporting a merchandiser had to do related to calculating wages and should be finished within the call. This should not require additional work. The courier and the sales calls were optional. There is now the option of email or phone call and the phone call should take 3 to 4 minutes. There are four occasions per year where the respondent did a blitz activity, and this is delivered by the merchandisers themselves. There is no obligation to take on the roles and this was paid at a premium rate.
The respondent calculated that 2013-2014, the complainant was paid an average €9.01 per hour when the national minimum wage was €8.65; in 2015, the average was €9.11 while the national minimum wage was €8.65. In 2016, the average hourly rate was €9.37 while the national minimum wage was €9.15 and in 2017, €9.53 while the national minimum wage was €9.25; in 2018, he was paid €9.73, while the national minimum wage was €9.55.
The respondent submitted that driving time was not working time and the complainant was also paid mileage at 26 cent per km (it had been 41 cent per mile). The complainant did not highlight that the administration time was taking so long. The only administration was the wage upload. There may be a survey monkey document to be done in a store, for example after a blitz. The respondent outlined that if the work was done faster than the allocated hours, the employee was still paid for the full allocation, in particular in the third week of a promotion.
The respondent submitted that it was regrettable that they were at this hearing and that the complainant had worked for the respondent for 4.5 years. There is no obligation for an employee to work in particular stores or to take parcels at home. |
Findings and Conclusions:
This is a complaint pursuant to the National Minimum Wage Act. The complainant asserts that he was paid below the national minimum wage during his employment with the respondent. This calculation includes time he spent driving to retail stores and time spent on administration and assembly. The respondent denies the claim, stating that the complainant was paid above the national minimum wage and paid expenses for travel.
Section 23 of the National Minimum Wage Act, 2000 provides: “(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 of Schedule 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) actually 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 by the employee.”
Section 24 of the Act deals with disputes about entitlement to minimum hourly rate of pay. It stipulates: “(1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee's entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee. (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 41 of the Workplace Relations Act 2015— (a) unless the employee— (i) has obtained under section 23 a 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 [adjudication officer] may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be”
Section 24 of the National Minimum Wage Act makes it mandatory for an employee to request of their employer a statement of their average hourly rate of pay in respect of the relevant pay reference period. An adjudication officer is explicitly prevented from hearing a complaint if the employee has not sought this statement.
In Mansion House Ltd v Izquierdo MWD043, the Labour Court commented “For the sake of completeness the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimants right to re-enter the same complaint having complied with the said section. It is the Court's view that a decision dismissing the claim on its merits on the basis of non-compliance with this section alone is not appropriate nor is it warranted by any provision of the Act.”
In this case, the complainant asserts that the additional work he was required to do meant that his hourly rate of pay fell below the applicable national minimum wage. The respondent denies this, stating that he was paid above the national minimum wage and was paid travel expenses. Because the complainant did not request the statement provided for in section 23 and made mandatory by section 24, I do not have jurisdiction to hear this complaint. The complainant may, of course, now request the statement and then refer the matter to the Workplace Relations Commission within six months (as set out in section 24). |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00020907-001 For the reasons set out above, I do not have jurisdiction to hear this complaint without prejudice to the complainant's right to request the statement provided for in section 23 of the National Minimum Wage Act and to then submit a new complaint pursuant to section 24.
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Dated: 10.1.19
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
National Minimum Wage Act Mandatory requirement to request statement Mansion House Ltd v Izquierdo |