Complainant

Respondent

Anonymised Parties

A Tyre Fitter

A Tyre Company

Representatives

Ailbhe Gill Patrick J. Durcan & Co

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021504-001

31/08/2018

The Complainant commenced employment with the Respondent, a tyre company, on 21 May 2018, in the role of the tyre fitter.

The Complainant’s employment ended on 22 June 2018, following a disagreement with the Respondent over the rate of pay and allowances applying to the position.

The Complainant submitted a complaint to the Workplace Relations Commission, on 31 August 2018, under the National Minimum Wage Act, 2000.

Background:

According to the Complainant’s submission, he commenced working for the Respondent on 21 May 2018 and finished on 22 June 2018 because of the paltry rate of pay for the role. The Complainant stated that as he had previously worked in the industry and was experienced at the job, he found the hourly rate of pay of €7.16 to be both insufficient and below the National Minimum Wage.

Substantive submission:

The Complainant submitted that he was not provided with a contract of employment when taking up the new position in May 2018. According to the Complainant, he agreed to take the position following a discussion with the Respondent, during which he was advised that for the first three months of employment a three-tier payment system would operate, whereby his hourly rate would increase in each of the three months.

It was the Complainant’s evidence that he had been assured by the Respondent, during their initial discussion, that the minimum wage would apply and would be the base rate for the three-tier system that was to apply for the first three months. According to the Complainant, had he known at the outset that the rate of pay would be €7.16 per hour, he would not have taken the position.

According to the Complainant’s submission, on the day before he resigned his position, the Respondent provided him with a document setting out the rates that would apply during the first three months of employment as being 75%, 80% and 90% of the national minimum wage respectively.

In addition, the Complainant submitted that the Respondent confirmed a callout allowance of €70.00. However, the Complainant further stated that the Respondent never indicated that the callout allowance would not apply during the first three months. According to the Complainant, he did two weeks on call, including the first week of employment.

Finally, the Complainant referred to the Respondent’s contention that the three-tier payment system was applying because the first three months of employment was a training period. In response to this, the Complainant submitted that he had initially worked for the Respondent for two years, between 2003 and 2005, and that, on that occasion, no three-tier system applied. The Complainant also submitted that he worked for two different tyre companies in 2007/2008.

In further evidence, the Complainant stated that while there was a gap in his working in the tyre business between 2008 and 2018, he was, nonetheless, an experienced tyre fitter. In support of this the Complainant submitted that during his three-week employment with the Respondent a new employee was assigned to him for training purposes.

The Respondent attended the first scheduled hearing of the Complainant’s complaint, on 23 January 2018. However, due to unforeseen circumstances, the Adjudication Officer was not in a position to attend on the day and the hearing was rescheduled to 13 March 2019.

Prior to the hearing on 13 March 2019, the Respondent’s legal representative wrote to the WRC, requesting to have the complaint dealt with via telephone or written correspondence. In response, the Respondent was advised that while a procedure existed whereby a complaint involving an issue of right may be dealt with by way of written submission only, it was only applicable in circumstances where the facts are not in dispute and only the application of the law needs to be considered by the Adjudication Officer, which was not the case with the within complaint.

The Respondent did not attend the hearing on 13 March 2019.

Section 14 (a) of the National Minimum Wage Act 2000 states as follows:

“(a) an employee who has attained the age of 18 years shall, subject to sections 15, 16 and 41, be remunerated by his or her employer in respect of the employee's working hours in any pay reference period, at an hourly rate of pay that on average is not less than the national minimum hourly rate of pay”.

Section 16 of the Act sets out criteria where training rates may apply in relation to the application of the minimum wage. I find no evidence which would suggest that such rates are applicable to the Complainant’s employment.

The Complainant provided evidence, by way of salary slips, dated 6, 13 and 20 June 2018, covering his three weeks of employment with the Respondent.

Having carefully considered this evidence, I am satisfied that, for the three weeks in question, the Complainant was paid a total of €1,014.93, consisting of 135 hours at an hourly rate of €7.16 and 4.5 hours overtime at time and a half. I am satisfied that the hourly rate of €7.16, which was used to calculate the Complainant’s wages for the three weeks of his employment with the Respondent was below the national minimum rate of €9.55, which applied at that time.

Based on the above, I find that the Complainant was underpaid in the amount of €338.79.

The Complainant raised additional issues at the Hearing in relation to the callout allowance and unpaid wages due to him. However, as these matters were not properly before me for adjudication I was not in a position to consider same.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim under the National Minimum Wage Act, 2000, is well founded and I instruct the Respondent to make a payment of €338.79 to of the Complainant in this regard. This payment represents the gross amount due to the Complainant and is, therefore, subject to the normal statutory deductions that would apply to wages in such circumstances.

National Minimum Wage Act