FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : COYNE TYRES BALLINA LTD - AND - ALAN SWEENEY DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Connolly Worker Member: Ms Treacy |
1. Appeal Of Adjudication Officer Decision No(S). ADJ-00016488 CA-00021504001.
BACKGROUND:
2. The Employer appealed the Adjudication Officer's Decision to the Labour Courtin accordance with Section 7 (1) of the Payment of Wages Act, 1991 on the 2 December 2019. The Court heard the appeal on the 27 February 2020.
DETERMINATION:
This matter came before the Court by way of an appeal by Coyne Tyres Ballina Limited against the Decision of an Adjudication Officer ADJ-00016488, CA-0021504-001 in a claim under the National Minimum Wage Act 2000 (the Act) brought by Mr Alan Sweeney. The Adjudication Officer found in favour of the Complainant’s claim and awarded him the sum of €338.79.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Alan Sweeney will be referred to as “the Complainant” and Coyne Tyres Ballina Limited will be referred to as “the Respondent”.
The Complainant worked for the Respondent as a mobile tyre fitter from 21st May 2018 until 22nd June 2018. During the period of his employment the Complainant was paid at a rate of €7.16 per hour. During the relevant period the national minimum wage was €9.55 per hour. The Complainant claims he was underpaid €381.81 by the Respondent in terms of the minimum wage prescribed by the Act during the course of his employment with the Respondent.
After the commencement of his employment, the Complainant sought details of his rates of pay and received a written statement from the Respondent on 22nd May 2018 setting out his rate of pay as follows:-
- €7.16 per hour from 21 May 2018 until 21 June 2018
€7.64 per hour from 22nd June 2018 to 22nd July 2018
€8.60 per hour from 23rd July 2018 until 23rd August 2018
The Complainant argued that as an adult experienced worker over the age of 18 (he said he was in his forties) with a number of years’ experience as a tyre fitter, that he was entitled to be paid the minimum experienced adult rate of €9.55 per hour. He said that at the commencement of his employment he was informed that for the first three months of his employment there would be a three-tier payment system, however had he known that he was to be paid €7.16 per hour, he said that he would not have taken up the employment and had accordingly left after three weeks. He claimed that he was underpaid for 135 hours plus overtime hours.
The Complainant referred his complaint under the Act to the Workplace Relations Commission on 31st August 2018. Therefore, the Court is satisfied that the conditions precedent to its jurisdiction prescribed by Section 24(2) of the Act have been met.
The Respondent submitted that the Complainant was paid the correct rate of pay as he was on a three-month training period in mobile tyre fitting. He said that the Complainant had worked for the company 15 years previously as a tyre fitter and wheel alignment but not as a mobile tyre fitter. He said that techniques and equipment has changed in the meantime. Therefore, the Respondent maintained that he was within his rights to pay the appropriate training rate provided for within the provisions of the legislation. He accepted that there was no formal training course in mobile tyre fitting but contended that the training the Complainant received came within the terms of a training programme.
The Respondent said that the Complainant worked 45 hours per week and was paid a total sum of €1143.31, which he contended was the appropriate rate of pay.
Conclusions and Findings of the Court
The Respondent’s case was predicated on the Complainant being on a training rate and therefore, was not entitled to the experienced adult worker rate as specified in the Act. S.I. No. 99 of 2000 (Prescribed Courses of Study or Training) Regulations, 2000 lays down the criteria for the payment of a training rate for the purposes of the Act. Included in such specifications include:-
- “an assessment and certification procedure or written confirmation of the employee's completion of the course identifying the level of employee attainment against the objectives, which must include the employee's signature.”
The statutory provisions also include workplace training, which means planned, and structured training carried out under normal operational job pressures and can be delivered inside or outside the workplace. The course must be the subject of a pre-existing written document or documents detailinginter alia, its objectives, outline plan of duration and approach, a record system and assessment and certification procedure.No documentation or evidence of a training programming as described in the statutory instrument was presented to the Court. The Court is not satisfied from the information supplied that the Complainant was a "trainee" for the purposes of S.I. No. 99 of 2000.
Having examined the records the Court finds that the Complainant was underpaid by a total amount of €381.64 for the period of his employment from 21st May 2018 until 22nd June 2018.
Determination
The Court finds that the Complainant’s case is well-founded and the Respondent’s appeal fails. The Court hereby orders the employer, Coyne Tyres Ballina Limited to pay Mr Alan Sweeney the sum of €381.64 in respect of his claim under the National Minimum Wage Act, 2000 within six weeks of the date of this Determination. Therefore, the Adjudication Officer’s Decision is varied by this Determination.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
TH______________________
6 March 2020Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.