MWD202

FULL RECOMMENDATION MWA/20/1 DETERMINATIONNO.MWD202 ADJ-00018831 CA-00024200-001 SECTION 27 (1), NATIONAL MINIMUM WAGE ACT, 2000 AND 2015 PARTIES : MS ANITA BYRNE - AND - MS GLORIA RUBIO-PIMENT (REPRESENTED BY ARTHUR COX SOLICITORS) DIVISION : Chairman: Mr Foley Employer Member: Ms Doyle Worker Member: Mr McCarthy

SUBJECT:
1. Appeal of Adjudication Officer Decision No:ADJ-00018831 CA-00024200-001.

BACKGROUND:

2. The Employer appealed the decision of the Adjudication Officer to the Labour Court under the National Minimum Wage Act 2000 on 19 December 2019. A Labour Court Hearing took place on 25 February 2020. The following is the Court's Determination :-

This is an appeal by Ms Anita Byrne against the Decision of an Adjudication Officer in a complaint made by Ms Gloria Robio Pimental under the National Minimum Wage Act 2000 (the Act). In this Determination Ms Byrne is referred to as the Respondent and Ms Pimental is referred to as the Complainant. The Adjudication Officer found that the complaint was well founded and she awarded the Complainant the sum of €5,931.00 under the Act.

The Complainant commenced employment with the Respondent as an au pair on 29th August 2017. The employment terminated on 8th May 2018. She was paid €100.00 per week and was provided with board and lodgings.

The Complainant referred a claim under the Act to the Workplace Relations Commission on 17th December 2018 in which she alleged that she was underpaid by reference to the national minimum wage established by the Act. The claim relates to the full duration of the Complainant’s employment.

The Complainant sought a statement of her average hourly rate of pay from the Respondent on 2nd November 2018. That request was made by registered letter and the Respondent did not reply to that request.

The Court considered the matter of time limits for the making of the within complaint which had been raised by the Respondent as a preliminary issue on the basis that its decision on the time limits applicable has the potential to dispose of the appeal in its entirety.

The Respondent submitted that the within complaint was statute barred by reference to the time limits set out in legislation. She submitted that the employment of the complainant terminated on 8th May 2018 and the within complaint was not made until 17th December 2018 which was more than 6 months after the commission of any alleged offence under the Act. The Respondent submitted that the Complainant was obliged by section 23 of the Act to make a request for a statement of her average earnings prior to her making the within complaint and the Respondent had not received such a letter. The Respondent submitted orally at the hearing that while she may have received a notification from An Post that a registered letter had been undeliverable to her address she had not collected any such letter from An Post.

The Complainant submitted that she had, on 2nd November 2018, made a request under the Act at Section 23 for a statement of her average hourly rate of pay for the duration of her employment. She submitted that she had made the request by registered letter and she submitted relevant documentation from An Post in that respect. The Respondent, on foot of that request and having regard to Section 23 of the Act, should have provided such a statement to the Complainant within four weeks of 2nd November 2018. In the absence of the provision of such a statement by the Respondent, the time limit for the making of the within complaint, having regard to the Act at Section 41(7)(ii) of the Workplace Relation Act, 2015, was a period of six months after the date of expiration of the period within which the Respondent was obliged to supply the statement of average earnings requested on 2nd November 2018.

Section 23 of the Act in relevant part provides as follows:
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.

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.
The Act at Section 24 in relevant part provides as follows:
24. (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 rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,
The Workplace Relations Act, 2015 at Section 41(7) in relevant part provides as follows:
(7) Subject to subsection (8), an adjudication officer shall not entertain a dispute referred to him or her under this section if—
(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

The Respondent has contended that the within complaint is statute barred having regard to the fact that the complaint was not made within six months of the last date on which a breach of the Act could have occurred. However, it is clear that the relevant time limit for the making of the within complaint is that set out at Section 41(7) of the Workplace Relations Act, 2015. That provision is consistent with the Act at Section 24.

It is the case that the Complainant did make a request of the Respondent for a statement of her average hourly earnings by registered letter dated 2nd November 2018. The Complainant therefore has met the requirement placed upon her by the Act at Section 24. The Respondent made no response to that request and has set out to the Court the reasons for the failure to supply the statement requested. Those reasons are not relevant to the matter raised by the Respondent as a preliminary matter.
The Court is satisfied that a request within the meaning of the Act was made and therefore, by operation of the law, the time limit applicable for the making of the within complaint was either within six months of the date of receipt by the Complainant of the statement requested or, where no statement was provided, within six months of the expiry of the time limit provided by the Act for the supply of that statement to the Complainant.

The Act, at Section 23, obliged the Respondent to supply the statement requested to the Complainant within four weeks of the date on which the request was made. No statement was provided. Therefore, the time limit for the making of the within complaint was within six months of the 1st December 2018. The within complaint was made on 17th December 2018 and consequently that complaint was made within the time allowed by the Act.

The Respondent’s submission that the within complaint was statute barred is, consequently, misconceived.

The respondent submitted that the Complainant was paid €100 per week and provided with board and lodging while in the employment. She worked 25 hours per week. She submitted that the Complainant never worked weekends and she never worked overnight babysitting.

Summary position of the Complainant
The Complainant submitted that she worked significantly in excess of 25 hours per week and she provided a detailed statement of hours worked between the commencement of the employment in September 2017 and the termination of the employment in May 2018.

The Complainant submitted that, taking into account the fact that the Respondent had provided her with board and lodging, she had received€4,794.30 less than her entitlement to wages under the Act during the period of her employment.

It is common case that the Complainant was paid €100 per week and that the Complainant was provided with board and lodging by the Respondent throughout her employment. The Respondent confirmed that the Complainant was never provided with a written statement of her terms and conditions of employment. The Respondent has also confirmed that she kept no record of hours worked by the Complainant.

The matter before the Court turns significantly on the quantum of hours worked by the Complainant while in the employment of the Respondent. The Act at Section 22 in relevant part provides as follows:

22 (1)—An employer shall keep, at the premises or place where his or her employee works or, if the employee works at 2 or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records as are necessary to show whether this Act is being complied with in relation to the employee and, subject to section 23 (5) , those records shall be retained by the employer for at least 3 years from the date of their making.
(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 Court has been presented with no evidence by either party which would assist in determining the factual matter of the quantum of hours worked by the Complainant. The Complainant has presented the Court with a statement of hours she contends she worked throughout the period. The Respondent was unable to provide such a statement. She did however make a submission to the effect that the Complainant worked 25 hours per week in each week of her employment.

The law places no obligation on the Complainant to record her hours of work. The Act, at Section 22(1), does place such an obligation upon the Respondent. The Court concludes that the Respondent has failed to maintain the records required by the Act at Section 22(1) and has also failed to discharge the burden placed upon her by the Act at Section 22(3). The Court therefore accepts that the Complainant’s assertions as regards the hours she actually worked are accurate and that her complaint under the Act is made out.

Therefore, having regard to the National Minimum Rate of Pay in place under the Act during the employment of the Complainant, the Court concludes that the Complainant suffered a shortfall of wages in the amount of €4,794.30 as claimed by her.

DETERMINATION:

The Court is satisfied that the within complaint is well founded. The Court determines that the Respondent should pay the Complainant arrears of wages in the amount of €4,794.30 in discharge of her claim.
The Respondent’s appeal is disallowed and the Decision of the Adjudication Officer is varied.
The Court so Determines.



Signed on behalf of the Labour Court



Kevin Foley
MK______________________
30 April 2020Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.