MWD191

FULL RECOMMENDATION

MWA/18/3

DETERMINATIONNO.MWD191

ADJ-00007275 CA-00009628-022

SECTION 31 (1), NATIONAL MINIMUM WAGE ACT, 2000 AND 2015

PARTIES :

HEWLETT-PACKARD CDS IRELAND LIMITED
(REPRESENTED BY MASON HAYES & CURRAN SOLICITORS)

- AND -

JAKUB ZAJACZKOWSKI
(REPRESENTED BY BLAZEJ NOWAK)

DIVISION :

Chairman: Mr Foley
Employer Member: Ms Doyle
Worker Member: Ms Treacy

SUBJECT:
1. Appeal Of Adjudication Officer Decision ADJ-00007275

BACKGROUND:

2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 31(1) of the National Minimum Wage Act, 2002 and 2015. A Labour Court hearing took place on 30th October, 2018.

The following is the Determination of the Court:

DETERMINATION:

This matter comes before the court as an appeal by Jakub Zajczkowski (the Appellant) against a decision of an Adjudication Officer in his complaint made under the Minimum Wage Act, 2000 (the Act) against his former employer Hewlett-Packard CDS Ireland Limited (the Respondent).

The Adjudication Officer decided that the Appellant was paid €13.59 per hour during his employment with the Respondent and that no breach of the Act had occurred.

Position of the Appellant

The submission of the Appellant’s representative on his behalf stated as follows

‘It is claimed that the Appellant was not always in receipt of the national minimum wage.’

The submission also stated that the Appellant relies upon Section 22(3) of the Act.

Position of the Respondent

The Respondent submitted that the Appellant had been in receipt of a rate of pay of €13.59 per hour. The Appellant submitted that the Appellant had been on sick leave from July 2016 and that no breach of the Act could have occurred prior to the termination of his employment in October 2016.

Discussion and conclusions

The Court notes that the within complaint was received by the Workplace Relations Commission on 6^thFebruary 2017. The Appellant had been absent from his workplace from July 2016 until the termination of his employment in October 2016.

The Court has been unable to determine from the Appellant’s representative the basis for the within complaint. The only reference to the Act by the Appellant’s representative is to Section 22(3) which proves as follows:

(3) Without prejudice to subsection (2), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the provision was complied with lies on the employer.

The Appellant’s representative has not particularised his complaint in any way to the Court. The Court is unable to discern from any written or oral submission of the Appellant’s representative any contention that at any particular date or time a breach of the Act occurred.

The Court has been provided by the Respondent with payslips for the entire period of the Appellant’s employment. The Appellant’s representative, who provided no documentation to the Court, has not made reference to any of those payslips in order to advance his appeal.

The Respondent did speculate that the Appellant may have an issue as regards ‘standby time’. That submission was not made by the Appellant’s representative. In any event the Court notes the provisions of the Act at Section 8(2)(c)(i) as follows

8 (2) “Working hours” under this section shall include—

(a) overtime,
(b) time spent travelling on official business, and
- (c) time spent on training or on a training course or course of study authorised by the employer, within the workplace or elsewhere, during normal working hours,
but shall not include—
- (i) time spent on standby or on call at a place other than a place of work or training provided by or on behalf of the employer for whom the employee is on standby or on call,
  (ii) time spent absent from work on annual leave, sick leave, protective leave, adoptive leave, parental leave, carer’s leave under the Carer’s Leave Act,2001, while laid-off, on strike or on ‘ lock-out ’ , or time for which the employee is paid in lieu of notice, or
  (iii) time spent on travelling between an employee’s place of residence and place of work and back.

It is not for the Court or the Respondent to make the case for the Appellant. The Court, in all the circumstances, finds that the Appellant’s case has not been made out. The appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines

Signed on behalf of the Labour Court

Kevin Foley
21st January 2019______________________
SCChairman

NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.