Complainant

Respondent

Anonymised Parties

A Former Employee

A Recruitment Company

Representatives

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-00038734-001

07/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038734-002

07/07/2020

The Complainant commenced employment with the Respondent in September 2015 and he was made redundant in May 2020. The complaint concerns the Complainant’s hourly rate of pay and in this regard, he is seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act [2000-2020] (CA-00038734-001) and Section 6 of the Payment of Wages Act [1991-2017] (CA-00038734-002).

The Complainant’s complaints were first received by the WRC on the 6th November 2019. The Complainant subsequently withdrew the complaints by letter to the WRC wherein he stated that “I wish to withdraw my complaint…., I have no longer have any claim…”. On the 17th December 2019 the WRC advised the Respondent that the complaints had been withdrawn.

The Complainant re-submitted a complaint form which was received by the WRC on the 7th July 2020 and on the 7th July the WRC received the following letter from the Complainant:

“I have previously made a complaint to your office. I withdrew the complaint due to promises made by my employer….but they didn’t comply and in fact made me redundant dispite the fact my section has increase in revenue and Covid-19 was there excuse. I am asking you to re-open my complaint…”

The Complainant emailed the WRC on the 11th August 2020 following up on his complaint and on the 14th September 2020 he emailed as follows:

“…..I initially made a complaint about my rate of pay which was below the national minimum pay last year….my employer contacted me and offered to meet with me to have work review to solve the matter if I withdraw the complaint…..I was promised to review my pay and working hours to bring it up to national minimum pay and I agreed to withdraw my complaint. As Ireland was going to lock down on third of May he contacted me and ask me to go on Covid-19 payment as the business was suffering even though I was working on health care section which had a considerable increase in turnover and that he will contact me in June in which he did with a news of redundancy in fact he was buying themselves time to unable me to re lodge my complaint. I contacted the WRC…..and now I am requesting you to allow this complaint to be restated….”

The Complainant outlined the substance of his complaint that he was not being paid the minimum wage rate/hour. The Complainant outlined that he was employed as a week-end recruitment consultant. His contract of employment and a letter sent to him dated 17/7/2017 stated that his “Hours of work were on call” and that his “Location of work is working from home”. In this regard, the Complainant was on call from Friday 18:00 - Sunday 21:00. The Complainant stated that his gross pay was €280/week and that he worked 34 hours each week-end. The Complainant stated that he was underpaid “every week since 2015”. The Complainant provided an outline of his underpayments for the period of twelve months to October 2016, the period of eighteen months to April 2018, the period of eighteen months to October 2019 and the underpayment from October 2019 to the 3rd May 2020. The Complainant claimed that over this time his total underpayment was €38,363. For the period of twelve months to October 2016 the Complainant stated that he was underpaid €130/week, for the period of eighteen months to April 2018 he stated that he was underpaid €163/week and for the period of eighteen months to October 2019 the underpayment was €182/week.

The Complainant outlined the nature of the work and stated that many times he took calls before 7 am and after 10pm. He stated that he was confined to the house and never free to go shopping or engage in other activities because of his work schedule. The Complainant’s position is that he should have been paid the minimum hourly rate of pay for 34 hours/week and not just be paid by reference to the time spent on phone calls – “should not get paid by phone calls”. The Complainant stated that he worked hard and fully honoured his contract.

The Respondent disputed the Complainant’s version of matters in relation to the re-instatement of his complaint. The Respondent stated the Complainant was satisfied with its interventions following the first complaint lodged to the WRC and that he only sought to re-instate the complaint following a disciplinary matter.

In relation to the Complainant’s pay, the Respondent outlined that the Complainant was a week-end consultant, that he worked from home, that he was on call from Friday 6pm – 10pm/4 hours and on Saturday and Sunday – 7am – 10pm/30 hours. The Respondent stated that his total on call hours were 34 and that he also had a written report to complete each week-end. The Respondent disputed that the Complainant worked 34 hours/week and in this regard, the Respondent produced telephone records showing the times and lengths of phone calls. The Respondent stated that the Complainant’s pay was based on twenty hours @€14/hour regardless of whether or not he worked twenty hours. The Respondent stated that the Complainant was advised to keep a record of his hours and that if they exceeded twenty he would be paid for the excess hours. The Respondent stated that the Complainant’s “actual working time was an average 12 hours per week. This was calculated and monitored by comparing the time on calls and texts on the phone and allowing 2 hours for the required reports. The phone bill, payslips and reports for February 2020 support the company’s position”. The Respondent stated that it regularly monitored the Complainant’s “phone bills and reports to ensure that his remuneration was fair”.

The Respondent stated that the Complainant was free to leave his house once he had his phone with him and that he was allowed to switch off his phone for short periods - meal breaks and personal reasons. The Respondent referred to the Complainant’s contract of employment and letter sent to Complainant of 17/7/2017 which outlined the Complainant’s week-end duties, hours of work and confirmed that his location of work “is working from home”. The Respondent stated that the Complainant had worked for four years under these terms and conditions without issue.

The Respondent submitted that under the National Minimum Wage Act [2000-2020] “on call or standby allowance is non-reckonable” as the Act applies to “actual hours worked”. The Respondent cited the Organisation of Working Time Act [1997-2017] in stating that “Working time is defined…..as time when the employee is at his or her place of work or at the disposable of the employer and carrying out the duties or activities of his/her employment. It is exclusive of breaks, on call or stand-by time”.

It is the position of the Respondent that it has fulfilled its obligations under the National Minimum Wage Act [2000-2020] and the Payment of Wages Act [1991-2017], that it has produced documentation to show the Complainant’s average working week and that the Complainant “has not provided any proof that he was actually working more than the twenty hours per week he was paid for”.

CA-00038734-001

This is a complaint pursuant to the National Minimum Wage Act [2000-2020]. The Complainant has asserted that he was not paid the minimum wage for the 34 hours he worked each week including on call hours. The Respondent disputes the complaint and has stated that the Complainant’s average working week was twelve hours including two hours for completing required reports and that regardless, he was paid for twenty hours @€14/hour.

Section 8 of the National Minimum Wage Act [2000-2020] defines working hours “in relation to an employee in a pay reference period”.

Section 10 of the National Minimum Wage Act [2000-2020] states that “An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month”.

Section 23 of the National Minimum Wage Act [2000-2020] provides that:

“(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.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(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.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.”

At the adjudication hearing I queried the Complainant on whether he had requested a pay reference period statement and he stated that he had not asked. I note that on his complaint form submitted to the WRC on the 7th July, 2020, in answer to the question “Have you obtained a statement from your employer of your average hourly rate of pay for your pay reference period?” the Complainant wrote “copy of payslips attached”. I do not consider the provision of payslips a substitute for the required statement stipulated at Section 23 of the Act. In light of the foregoing, I find that I have not been provided with a statement of the Complainant's average hourly rate of pay for any pay reference period, in accordance with the provisions of Section 23 of the National Minimum Wage Act [2000-2020].

Section 24 of the National Minimum Wage Act [2000-2020] deals with disputes about entitlement to the minimum hourly rate of pay. It stipulates:

“(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 [adjudication officer] may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be”

It is clear that Section 24 makes it mandatory for an employee to request of their employer a statement of their average hourly rate of pay in respect of a relevant pay reference period, in order to pursue a dispute about his/her entitlements under the Act. As I have not been furnished with the statement provided for by Section 23 of the Act which by virtue of Section 24 is mandatory, I find that I do not have jurisdiction to hear this complaint.

In Mansion House Ltd v Izquierdo MWD043, the Labour Court commented as follows in relation to the approach of the WRC Adjudicator:

“For the sake of completeness the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimants right to re-enter the same complaint having complied with the said section….”.

CA-00038734-002

The Complainant has also submitted his complaint under the Payment of Wages Act, [1991-2019].

Section 5(1) of the Payment of Wages Act, [1991-2019] states:

“An employer shall not make a deduction from the wages of an employee (or receive any payment from the employee) unless –

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it”.

Section 5(6) of the Act states that where:

“(a) the total amount of wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”   

The effect of the above provisions is to make unlawful any deduction from wages unless it is required by statute or contract or unless the employee has consented to it in advance.  The effect of Section 5(6) is to allow a reduction in wages to be treated as a deduction. This approach was endorsed by the High Court in the case of EARAGAIL EISC TEORANTA V Ann Marie Doherty & Ors [2015] IEHC 347, where Kearns J. determined “that the reduction to the employees wages in the present case may have constituted a deduction in breach of the 1991 Act”.

In considering the application of the above provisions to the Complainant’s complaint about his hourly rate of pay, I find that the Complainant was paid in accordance with the terms of his contract of employment and the letter of 17/7/2017. These clarify that the Complainant was being employed as an on call week-end recruitment consultant, that his salary/week was €280 and that for additional hours worked he would be paid @€14/hour. Whilst the Complainant submits that he has been underpaid given the totality of his hours from Friday 18:00 – Sunday 21:00/ie 34 hours, I am of the view that he has not particularised a deduction or reduction of wages contrary to his contractual terms of employment, as provided for at Section 5 above. Accordingly, I find that the complaint under the Payment of Wages Act [1991-2019] has not been made out.

CA-00038734-001

For the reasons outlined I do not have jurisdiction to hear this complaint.

CA-00038734-002

For the reasons outlined I find this complaint is not well founded.

On Call hours; Minimum Wage; Payment of Wages