Complainant

Respondent

Anonymised Parties

A trainee solicitor

A law firm

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-00026759-001

04/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00026759-002

04/03/2019

The complainant worked for the respondent as a trainee solicitor. He seeks to be paid for work he did, including in contravention of the National Minimum Wage Act. The respondent denies the claim.

The complainant outlined that he is owed unpaid wages. He had raised this issue many times with the respondent by email.  In completing the WRC complaint form, the complainant selected the National Minimum Wage Act. In submissions made before and during the adjudication of this matter, the complainant cited contraventions of the Payment of Wages Act and the Terms of Employment (Information) Act.

The complainant outlined that he was underpaid as he worked 50 or 60 hours per week but was only paid for 12 to 15 hours per week.

The complainant said that he had asked for a contract on many occasions, but the respondent did not provide him with a statement of his terms and conditions of employment. He submitted that this was a breach of section 3 of the Terms of Employment (Information) Act.

The complainant said that his indenture started on the 1st August 2017, but he had to transfer to a different solicitor when a partner of the respondent refused to continue the training.

The complainant said that he calculated the figure of €18,500 according to what he was paid and what he worked. While he received several pay slips, he did not receive the actual monies stated as paid in the pay slip. He was paid €878.71 per month (gross) for a 50-hour week.

Describing his hours of work, the complainant said that he would start work at 9am and then work late, sometimes all night for urgent court applications.

The complainant stated that he wished compensation on top of the unpaid wages because of hardship and suffering.

On the second day of hearing, the complainant said that some of the money paid to him by his employer were not wages but were repayments of a loan made to the respondent by his brother. This was in the amount of €2,000 and the complainant did this as it was taking time to set up his brother’s account.

The complainant said that the respondent had accepted that he was owed wages. On the 5th December 2018, the respondent paid an additional €500 and acknowledged in a message that this payment was “part of outstanding” wages.

On 17th October 2018, the complainant asked the respondent for his contract of employment, even though his employment had already ended. He sought redress pursuant to section 7 of the Terms of Employment (Information) Act.

In reply to the respondent, the complainant said that one of the payments recorded in the respondent’s schedule of payments made to him was not wages. This payment was made on the 8th May 2018 in the amount of €2,242. The complainant explained that this payment was not wages but a repayment of monies the complainant paid out to the landlord of the business premises, which the respondent refunded.

Again, referring to the schedule, the complainant said that the payments made to him on the 20th August 2018 (€1,500) and the 11th October 2018 (€500) were repayments of the loan made to the respondent by the complainant’s brother.

The complainant said that the payments on the 14th June 2018 (€360) and on the 20th August 2018 (€250) were overtime payment and not wages.

The complainant said that he commenced the training role on the 1st August 2017 and this finished on the 5th October 2018.

The principal solicitor confirmed that the practice was now a sole partner and another named partner had ceased his role.

The principal solicitor said that the complainant had his own business providing immigration law advice. They collaborated, and the complainant initially joined as a partner. They signed an exhibited memorandum of understanding. The principal solicitor said that he was then unable to take on a legal trainee as he was not qualified long enough in Ireland. On the Law Society’s recommendation, he engaged a partner with sufficient post-qualification experience to take on trainees.

The principal solicitor said that the training contract ended in 2018. He said that the complainant found work elsewhere but wanted to continue as a part-time consultant on his own files. The complainant continued to attend work for a few weeks, but this made the principal solicitor uneasy, so he changed the locks to the office.

In respect of working hours, the principal solicitor said that the agreement was for a 36-hour week. They agreed that the complainant would be paid a salary as provided by Law Society Regulations. He outlined that the complainant started PPC1 on the 5th September 2017 to 15th March 2018. During PPC1, the complainant was only entitled to €294 a week as per the Law Society Regulations. He said that the respondent complied with this requirement during this period.

The principal solicitor outlined that during this time, there was an arrangement for the complainant to come into work after lectures for two hours each evening. The principal solicitor said that the complainant, however, often did not attend work after lectures. He said that the complainant was never instructed to work the extra hours of overtime.

The principal solicitor said that the complainant had his own keys to the office. The complainant used the office after-hours for his own affairs. He referred to late-night emails of the 23rd and 24th July 2018, which related to the complainant’s own business.

The principal solicitor said that the complainant operated the Irish branch of an overseas political party from the offices, referring to the exhibited complainant’s business card. The principal solicitor said that the complainant also operated a cleaning company from the respondent’s office, exhibiting a business debit card sent to the respondent office in the name of the complainant and his company.

The principal solicitor submitted that the complainant being in the office did not equate to working hours. He outlined that the complainant did not even work 36 hours per week. The principal solicitor outlined that of the cases cited in the landscape case record, several were pro bono cases which the complainant did for his friends.

The principal solicitor outlined that that the complainant was paid €16,062.69 as set out in the schedule. He acknowledged that pay was not regular as the complainant was not paid as an employee but as a business partner. He said that the complainant had access to the company bank account and was provided with a company car.

The principal solicitor said that the complainant was given a P45, which he forwarded from his work email to a personal email account on the 14th September 2018.

The principal solicitor acknowledged that the respondent did not have working time records. He said that following a WRC inspection in February 2019, the respondent now used a template to maintain working time records.

In respect of his message of the 4th December 2018, the principal solicitor said that he later calculated that the complainant had been overpaid and not underpaid. He acknowledged that he had sent the other message, saying that the complainant had been paid enough.

The principal solicitor said that the complainant has not replied about carrying out personal activities and businesses at a time the complainant was saying he was working overtime for the respondent. The principal solicitor outlined that the complainant was in charge of the respondent’s administration and had access to online banking.

The principal solicitor accepted that €2,000 of the monies paid to the complainant were not wages but the repayment of a loan, as described by the complainant. The principal solicitor further accepted that the payment of the 8th May 2018 (€2,242) was also not wages, but monies to cover rent. The principal solicitor accepted that the complainant was paid about €12,000+ in wages, taking out the loan and rent repayment, but that the complainant had worked less than the required hours. The principal solicitor said that he was happy to pay any underpayment but rejected that any overtime was due.

The principal solicitor submitted that the complainant’s training contract commenced from the 5th September 2017 and ended on the 30th August 2018. The respondent was happy to pay what the Law Society said was due and that €294 was the current rate. He was also happy to accept that the complainant commenced working for the respondent in August 2017 and to pay for this.

Several complicating factors arose in this case. First, initially at least, the complainant (through a separate company) and the respondent collaborated as business partners in the area of immigration law. Second, monies were paid to the complainant that were not wages, but loan or rent repayments; the respondent latterly accepted that these should not be counted as wages. Third, part of the reason there is such a gulf in evidence in this case is that the principal solicitor also practices in the UK and spent much time there (this was the basis of his application to adjourn the first hearing date, per the email of the 23rd April 2019). This contributed to the significant conflict in evidence regarding how much time the complainant spent in the office and whether he was working for the respondent when he was present in the office.

A fourth factor was the complete absence of mandatory employment records. This contributed substantially to the complexity of this case. No statement was provided to the complainant of his terms and conditions of employment (which would have covered aspects such as terms or conditions relating to hours of work and the reference to a section 23 statement per the National Minimum Wage Act). The employer did not keep records of working time, required to ensure compliance with both the Organisation of Working Time Act and the National Minimum Wage Act (section 22).

Date of termination

There was conflict regarding the date the complainant’s employment ended. The complainant asserted that it was the 5th October 2018. The respondent refers to a date of termination of the 31st August 2018 (see the email to the accountants of the 3rd September 2018 and the P45).

I find as fact that the date of termination was the 5th October 2018. I make this finding on the basis of the complainant’s own evidence, which is corroborated by his correspondence in October and November 2018. He refers to no longer being part of the office (email of the 22nd October 2018) and continues to seek a P45 (emails of the 17th October and 22nd November 2018). This evidence is further corroborated by the statutory declaration sworn by the former partner of the respondent. This certifies that the complainant’s post-PPC1 in-office training commenced on the 29th March 2018 and that he has completed 6.5 months of training, i.e. bringing him up to the month of October.

CA-00026759-001

This is a complaint pursuant to the National Minimum Wage Act. The complainant asserts that the respondent contravened the Act by not paying him for the hours he worked. The respondent denied that the complainant worked the hours claimed.

Section 23 statement

Having reviewed the evidence, I find that the complainant has met the requirement set out in section 23 and 24 of requesting from the respondent a statement regarding average hourly rate of pay.He did so in the correspondence of the 17th and 22nd October 2018. In the correspondence of the 17th October, the complainant cites that his effective hourly rate of pay was €5 and asks the respondent to address the underpayment. In the correspondence of the 22nd October 2018, the complainant cites that he has not been paid for six months or more and that he was paid an effective hourly rate of €5. He asks the respondent to revert. The respondent replies on the same date that he will check the accounts records and get back to the complainant.

Cognisable period

In respect of the cognisable period, I follow the approach of the Labour Court in Sue Ryder Foundation Ireland v Meenagh (MWD051) to the cognisable period for a claim made under the National Minimum Wage Act. This arises as the pay reference period for a statement is contained in section 23, while the complaint mechanism in section 24 refers generally to entitlements under the Act. Section 24(2) sets the limitation period as six months from obtaining a section 23 statement or, where no statement is provided, six months after the expiry of the four-week period after requesting a statement. This arose on the margins of Hussein v Labour Court [2012] IEHC 364 where the original Rights Commissioner award ‘inferentially’ went back to the start of employment in 2002. Applying Meenagh, I find that the cognisable period in this case is the 1st August 2017 to the 5th October 2018.

Rate of pay

There was no contract of employment in this case or statement provided setting out the terms and conditions of employment. The Memorandum of Understanding is not applicable to the employment relationship in this case and also does not refer to remuneration.

As submitted by the complainant, he was entitled to be paid the applicable national minimum wage prior to starting PPC1, during PPC1 and in the subsequent in-office training period.

As of the 1st January 2017, the National Minimum Wage was €9.25 (per S.I. 516/2016). It was increased to €9.55 on the 1st January 2018 (per S.I. 440/2017). I accept that the complainant was entitled to €294 per week during the time spent on PPC1.

Remuneration paid to the complainant

The parties disagreed as to what was paid to the complainant. The respondent accepted that payments of €2,000 and €2,242 were not wages as they were the repayment of rent and a loan. The complainant asserts that he was paid €9,422.69, while the respondent asserts that he was paid in €11,820.69.

Each party provided a schedule of payments. The complainant’s schedule charts 15 payments, while the respondent’s schedule records 19 payments. The respondent submitted pay slips, but they do not tally with either schedule.

An employer is required to chart the payment of wages and deductions made through written statements or pay slips. This did not occur in this instance until after the employment ended. While the two schedules correlated as to the date and amount paid on certain occasions, they differed on others. I find as fact that the complainant received the payments set out in his schedule. I prefer this evidence, as the respondent has not shown that the additional payments were actually made, for example the stated payment of €1,000 on the 18th September 2017.

The €2,242 loan repayment was included in the respondent’s schedule of payment but not the complainant’s. The schedule of the complainant incorrectly included the loan repayment of €2,000 and so the complainant overstated the remuneration paid to him. I find that the correct amount is €9,422.69.

Hours of work

Again, there was a significant evidential gulf between the parties as to what happened, in this case what hours were worked.

In respect of working hours, per the Law Society documentation, the working week in a solicitor’s office is expected to be 36 hours and the course week during PPC1 was 30 hours.

The complainant asserted that he worked excessive hours per week. He stated that he worked approximately 200 hours per month. He stated that he worked far longer hours during PPC1, when he went to work every evening from 5 to 11pm and also worked weekends (8am to 8pm on both Saturday and Sunday). The complainant, therefore, asserted that he worked 54 hours during PPC1 as well as completing the 30 hours of course work. The complainant gave examples when he worked overnight, for example at the time of a Law Society audit in July 2018 and in advance of urgent court applications (see the facebook post of the 27th June 2018).

The respondent rejected that the complainant worked these long hours (although acknowledged that he was to come in for two hours after course work during PPC1). The respondent submits that the complainant did not do these hours and if he was at work, he was engaged in non-work-related activities (for a political party, a cleaning company or pro bono work for friends).

Burden of proof

Section 22(1) of the National Minimum Wage Act requires an employer to maintain records, in a prescribed form, showing compliance with the Act. A failure to maintain records does not raise a cause of action, but per section 22(3): ‘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 [an adjudication officer] or the Labour Court, that the provision was complied with lies on the employer.’

In Circus Gerbola v Tougir MWD 1210, the Labour Court referred to the working time decision in Nolan Transport v Antanas DWT 1117 and held:

‘… in practical terms … the Respondent must satisfy the Court that it is more probable than not that the Act was complied with in respect to the matters complained of by the Claimant. If the Respondent does not do so, or if the probabilities are equal, the Claimant will succeed. That is a reversal of the normal rule of evidence which requires that he who asserts must prove.

The reason for this reversal is obvious. The Act obligates an employer to maintain records which he or she must produce to an inspector appointed by the Minister if called upon to do so. These records may thus provide evidence of compliance or non-compliance with the Act. If there are no records proving non-compliance, on the normal evidential rules, [it] would be onerous and in many cases impossible [for the claimant to succeed]. Hence, in the absence of a reversal of the probative burden an employer who fails to maintain records in accordance with Section 25(1) of the Act could be placed in a superior position in defending a claim under the Act than an employer who does maintain records which, on examination, may disclose evidence to support the claim. Consequently the Oireachtas has provided for a rebuttable presumption of non-compliance in situations in which records in the prescribed form are not maintained.’

In Sheelin Mushrooms Ltd v Kreslina MWD 155, the Labour Court held that a claimant is still required to give credible evidence that arrears are due and owing. The Court held ‘It cannot have been intended that in the absence of compliance with s.22 or s.23 of the Act reliance can be placed on mere assertions made in submissions, unsupported by a scintilla of evidence in the testimony proffered by the Claimant.’ In relation to what counts as ‘credible evidence’ I have regard to the note of caution expressed by the High Court in Marciniuk v Wicklow Recreational Services Ltd (as cited in Murphy & Regan Employment Law, para 28.64) regarding a universal requirement for ‘hard evidence’ to support a statement or assertion in every case.

Finding regarding hours of work

The key finding to be made in this case relates to the hours of work performed by the complainant. The gulf in the parties’ evidence is stark.

Having reviewed the documentary evidence and oral submissions, I find that the complainant presented credible evidence that arrears are due and owning, including to the extent set out while he studied and worked at the same time. Per the above authorities, the burden shifts to the respondent to prove compliance. This can be achieved through records or through other credible evidence. There were no records (although I acknowledge the evidence that the respondent now keeps records). The respondent asserted that the complainant did not work the hours claimed and did other work while in the office. There was no evidence to support the former assertion, for example direct evidence of the other partner or from other staff (the principal solicitor also practices in the UK). There was evidence that the complainant engaged in other activities while in work. Even taking this evidence at its height, it does not prove compliance as the complainant could have been at work for the respondent at the same time as he emailed about overseas voting rights or the immigration status of friends.

I, therefore, apply section 22(3) to hold that the respondent did not have records of hours worked and has not advanced sufficient other evidence to dislodge the onus to show compliance. As a matter of law, I must find that the complainant worked the hours set out in his evidence and supported by the documentation he presented at the adjudication.

Calculation of shortfall

This complaint covers a period of 21 weeks in 2017 and 39.5 weeks in 2018. The PPC1 began in September 2017 and ended on the 29th March 2018.

Per the complainant’s evidence, I calculate that the complainant worked 200 hours in August 2017. From September to December 2017, the complainant attended PPC1 for 30 hours per week. As the respondent has not dislodged the onus placed on it, I find that the complainant worked 84 hours per week in 10 of these weeks (30 + 54). The complainant’s evidence was that this additional work related to court and there were six weeks of legal holidays in this period, when there is less court work. The respondent accepted that the agreement was for the complainant to attend work after lectures. I find that the complainant worked 60 hours per week in the legal holidays (i.e. 30 + 30). The total sum of these three amounts is 1,400 hours worked between August and December 2017.

Between January and March 2018, the complainant attended PPC1 for 12 weeks. There were two weeks of legal holiday. Applying the burden of proof, I find that the complainant worked 84 hours per week over 10 weeks (30 + 54) and 60 hours over two weeks of legal holiday (30 + 30). Taken together, the complainant worked 960 hours in this period. After PPC1 ended, I find that the complainant worked six 200-hour months for the remainder of his employment (1,200 hours). The sum of the two amounts for 2018 was 2,160 hours.

The national minimum wage in 2017 was €9.25 per hour. The complainant worked 1,400 hours in 2017 and accrued an entitlement to pay of €12,950.

The national minimum wage in 2018 was €9.55. The complainant worked 2,160 hours in 2018 and therefore accrued an entitlement to pay of €20,628.

As noted, the complainant was paid €9,422.69 during the course of his employment. Subtracting this amount from the complainant’s total entitlement to pay (€33,578) leaves arrears of €24,155.31. The redress provision of the National Minimum Wage Act allows for recovery of the arrears of pay. I, therefore, award redress of €24,155.31.

CA-00026759-002

In the complaint form, the complainant makes specific reference to asking for a contract of employment and not receiving one. During the course of the adjudication, the complainant made oral and written submissions regarding his entitlement to a statement of the terms and conditions of his employment. He sought this documentation from the respondent in late 2018, but this was not provided to him. The respondent did not contend at the adjudication that a statement had, in fact, be provided to the complainant.

It is clear that the issue of not receiving terms and conditions of employment was signalled in the complaint form. The complainant addressed this at the adjudication and fair procedures were provided to the respondent to show that there had been compliance with the Terms of Employment (Information) Act.

Applying the dicta of Charleton J. in Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210 (para 24), I have added to this adjudication a specific complaint regarding the alleged contravention of the Terms of Employment (Information) Act.

On the basis of the above, undisputed findings, the respondent did not comply with its obligations under section 3 of the Terms of Employment (Information) Act to supply the complainant with a statement of the terms of his employment within two months of the commencement of his employment. The failure to provide a statement is a subsisting breach throughout the course of the employment.

The requirements of a statement in section 3 are particularly important for workers on the minimum wage (see sections 3(1)(g) and 3(1)(ga) in place at the time). These provisions were inserted by the National Minimum Wage Act. The importance of this information was recognised by the Labour Court in Beechfield Private Homecare v Hayes Kelly TED1919; such omissions were not ‘technical breaches’ for the worker on the minimum wage.

I find that the complainant’s weekly wage at the end of his employment was €477.50. Taking account of the overall importance of the statement required by the Terms of Employment (Information) Act and the particular relevance to workers on the minimum wage, I award redress of €1,800.

CA-00026759-001

In respect of this complaint pursuant to the National Minimum Wage Act, I direct that the respondent pay the complainant an award of arrears of €24,155.31.

CA-00026759-002

I decide that the complaint pursuant to the Terms of Employment (Information) Act is well-founded and the respondent shall pay to the complainant redress of €1,800.

National Minimum Wage Act

Burden of proof

Terms of Employment (Information) Act