FULL RECOMMENDATION
SECTION 27 (1), NATIONAL MINIMUM WAGE ACT, 2000 AND 2015 PARTIES : IMTIAZ AHMED RANJHA SKY SOLICITORS - AND - IMTIAZ KHAN (REPRESENTED BY CAOIMHE RUIGROK BL INSTRUCTED BY G N & CO SOLICITORS) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No.(s) ADJ00020327, CA-00026759-001, CA-00026759-002 In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Imtiaz Khan is referred to as the Complainant and Imtiaz Ranjha in the style and practice of Sky Solicitors is referred to as the Respondent. There were a number of key facts in dispute in this case. The Respondent did not accept that the correct employer had been named. In response to that, the Complainant sought to make an application under section 39 of the Organisation of Working Time Act to change the name of the employer. The Respondent did not accept that the Complainant was an employee. The parties could not agree on the hours that were worked or what payment was received by the Complainant. The Respondent submitted that even if the Complainant was an employee his complaint was out of time. The Complainant gave evidence, and the Respondent had a witness who gave evidence. Both witnesses in giving their oral evidence contradicted and sought to resile from documents that they had signed or sought to rely on in respect of different elements of the claim. Background: The Court decided to deal with the issue of whether or not the correct employer had been identified in the complaint first. It was the Respondent’s submission that the correct employer was Imtiaz Ranjha and Donal O’ Riordan in the style and practice of Sky Solicitors and not Imtiaz Ranjha in the style and practice of Sky Solicitors. In trying to identify the correct employer the Court reviewed multiple documents including documents from the Law Society, provided by the parties. The Court noted from these documents that in September 2016 Mr Imtiaz Ranjha received his authorisation for commencement of practice in Ireland. The correspondence with the Law society at that time indicates that the firms name was to be Imtiaz Ranjha & Co. Solicitors trading as Sky Solicitors. In August 2017 Mr Imtiaz Ranjha entered into a Memorandum of Understanding with Mr Imtiaz Khan. This Memorandum states that the firms name is Sky Solicitor’s, and that the Memorandum came into effect on the 7 August 2017. The Memorandum also states that Mr Khan will report to Mr Imtiaz Ranjha and identifies Mr Ranjha as the Principal and states Mr Khan will be paid a salary as per Law Society requirements, including during PPC 1 and PPC 2. A letter from the Law Society of 23rdAugust 2017 notes that Mr Imtiaz Ranjha at that time was a sole practitioner and would need to close same to commence a practice as a partnership with Mr Donal Ryan (should have been O’ Riordan ). Per letter dated 4thDecember 2017 the Law Society confirm that with effect from 1stSeptember 2017 Donal O’ Riordanbecame a Partner in the firm Sky Solicitors. On the 29thSeptember 2017 Mr Ranjha sent an email to “quisare” (which the Court understands to be the Respondent’s accountant) noting that with effect from 1stSeptember 2017 Sky Solicitors sole practice was closed and Sky Solicitors Partnership was started from that date. The two partners were Mr Imtiaz Ranjha and Mr Donal O’Riordan, who was a 1% Partner. In a letter of 5thJune 2018 from Donal O’ Riordan Partner and Supervising Solicitor Sky Solicitors he confirms that Mr Khan joined the Company (Sky Solicitors) as a legal executive in August 2017. By letter of 28thAugust 2018 Donal O’Riordan contacted the Law Society seeking to terminate the training indentures as he was having a number of issues including issues with the trainees not getting paid and his internet and emails in Sky Solicitor had been filtered and cut off. The letter was signed Donal O’ Riordan Solicitor on the headed paper of Sky Solicitors which named the Partners of the firm as Donal O’ Riordan and Imtiaz Ranjha and stated that the firm was regulated by the Law Society. The Law Society responded by letter of 31stAugust 2018 advising that the issue would be dealt with by the Education Committee on the 4thOctober 2018. On the 4thSeptember 2018 on headed paper of Sky Solicitors Mr O Riordan wrote to the Law Society advising that he was no longer a partner at Sky Solicitors. By letter of the 17th September 2017 Mr Ranjha wrote to the Law Society on Sky Solicitors headed paper which indicated that Mr Ranjha was the only partner and Mr O’ Riordan was a consultant. The date Mr Khan’s employment came to an end is in dispute, but it is either 31stAugust 2018 or 5thOctober 2018. The complaint before the Court is in the name of Imtiaz Ranjha in the style and practice of Sky Solicitors. The question for the Court is, is that the right employer? Mr Ranjha states it is not and that the correct employer is Imtiaz Ranjha and Donal O’ Riordan in the style and practice of Sky Solicitors. This Partnership was officially dissolved in and about February 2019. The Complainant has looked to have Mr O’Riordan added relying on section 39 of the Organisation of Working Time Act. Mr Ranjha objected to the application on the basis that this was not raised at first instance. At first instance Mr Ranjha had indicated he would accept responsibility for any liability arising from this complaint and that statement was contained in one of the submissions he made to the Court. However, at the Court hearing on 1stJune 2021 Mr Ranjha confirmed to the Court that he was resiling from that position. Mr O’ Riordan has written to the Court stating if he is added he wants the right to cross examine the complainant even though Mr Ranjha has already done that. It appears to the Court based on the above facts that the status of the Firm Sky Solicitors changed on more than one occasion during the Complainant’s period of employment. Based on the correspondence to and from the Law Society it appears to have gone from being a sole practice to a Partnership and then back to a Sole Practice. The one constant in the firm throughout the relevant period has been Mr Ranjha. The Court in looking at Section 1 (2) of the Partnership Act 1890 notes that solicitors at the relevant time could not form companies and could only form partnerships. The Court also notes that a Partnership is not a separate legal entity and therefore Partners can be sued in their own name and each Partner is liable for the debts of the partnership without limit. In particular the Court took cognisance of the Partnership Act 1890 which states as follows: “Section 10: Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the firm, or with the authority of his co-partner, loss or injury is caused to any person not being a partner in the firm, or any penalty is incurred, the firm is liable therefor to the same extent as the partner so acting or omitting to act. Section 11 ….. Section12Every partner is liable jointly with his co-partner and also severally for everything for which the firm while he is a partner therein becomes liable under either of the two last preceding sections.” Section 10 and 12 of the Act provide that every Partner is liable jointly with his co-partner and also severally for everything for which the firm is liable. Therefore, it would appear to the Court that the Complainant had the option in respect of the period when the firm was a partnership of naming either both partners or just one partner. It is clear from the Act that he is not obliged to take his case against both partners. The Court determines that the right employer has been named in the complaint. On that basis the Court does not need to consider the application from the Complainant under section 39 (2) of the Organisation of Working time Act which provides that the name of the employer on the complaint may be amended. The next issue the Court considered is whether the Complainant was an employee during the relevant period. The Respondent submits that the Complainant was a Partner in the firm as set out in the memorandum of understanding referenced earlier and was never an employee. It is his submission that if the Complainant was an employee, it was only for the purpose of the Law Society. The Complainant submitted that he was an employee. He had been self employed as a lay adviser on immigration issues and merged his business with the Respondent’s legal practice to allow him study for his qualifications as a solicitor. The Complainant’s representative submitted that it was not possible for the Complainant a non-solicitor to be in a legal partnership with the Respondent a solicitor. It appears to the Court from the submissions received and the evidence given that there are three distinct period to be considered. The first period is the 7thAugust 2017 to the 4thSeptember 2017 In September 2016 Mr Imtiaz Ranjha received his authorisation for commencement of practice in Ireland. The correspondence with the Law society at that time indicates that the firms name was to be Imtiaz Ranjha & Co. Solicitors trading as Sky Solicitors. Further correspondence dated 23rd August 2017 with the Law Society indicates that at the relevant time he was operating as a Sole Practitioner. It is difficult for the Court to reconcile the correspondence from the Law Society which indicated that he was a Sole practitioner with the Respondent’s submission that the Complainant was a Partner. The Court attention was drawn to a letter of 5thJune 2018 from Donal O’ Riordan Partner and Supervising Solicitor Sky Solicitors to the Irish Naturalization and Immigration Services confirming that Mr Khan joined the Company (Sky Solicitors) as a legal executive in August 2017. The Court finds that based on the facts set out above that on the balance of probabilities that the Complainant was an employee during this period. The second period is the 5stSeptember 2017 to the 31stAugust 2018. It was confirmed by the Law Society by email to Mr Donal O’ Riordan, that Mr Khan attended the 2017 PPC which ran from the 5thSeptember 2017 to 15thMarch 2018 and that his training contract commenced on 29thMarch 2018. Indentures of apprenticeship were signed and dated 11thSeptember 2017. The memorandum referenced earlier stated that Mr Khan will be paid a salary as per Law Society requirements, including during PPC 1 and PPC 2. The Respondent accepts that he submitted revenue returns showing the Complainant as an employee. The Respondent states that if the Complainant was an employee that his employment ceased on 31stAugust 2018 . In support of that he is relying on an email he sent to his Accountant on the 3rd September 2018 instructing that the Complainant be removed from PAYE with effect from 31stAugust 2018 and issued with his P45. The Respondent sent an email to the Complainant on the 3rdSeptember advising that his training contract could no longer be continued as Mr O Riordan was no longer a Partner and advising that he could be retained as a self- employed legal consultant. The Complainant submitted that he was an employee at all times. The Court finds based on the information set out above and in particular the correspondence from the Law Society that on the balance of probabilities the Complainant was an employee during this period. The third and final period is 1stSeptember 2018 to the 5thOctober 2018. The Respondent submitted that the Complainant submitted invoices for work done after the 1stSeptember 2018 and provided the Court with copies of the invoices. The Complainant did not dispute that he had submitted invoices and in his evidence to the Court he stated that these were in respect of a different company despite the fact they were on the Respondent’s headed note paper. The Complainant ‘s submission was that he was employed with the Respondent as an employee until his Articles of Indenture were transferred to his new employer. The assignment of indentures was made on 8thOctober 2018 between Donal O’ Riordan Solicitor of Sky Solicitors and the Complainant’s new employer. The Articles of Indenture states that at the time of signing, the Complainant, had completed six and a half months of in-office training commencing on the 29thMarch 2018 in the office of Sky Solicitors. In a statutory declaration by the Training Solicitor Mr Donal O’ Riordan as to service by the Complainant as a trainee solicitor he declared that the Complainant had already completed a period of in -office training commencing on the 29thMarch 2018 of at least six and a half months and had been absent only for 3 working days. That document was signed by Mr O’ Riordan and witnessed by another solicitor. Six and a half months commencing on the 29thMarch 2018 brings you up to the middle of October 2018. While there is conflict between the parties in respect of the purpose of the invoices submitted in September 2018. The Court does not believe it has to resolve this conflict. In terms of determining if the Complainant was an employee for the period 1st September 2018 to 5thOctober 2018 the Court finds that the Statutory Declaration signed by the Training Solicitor and the assignment of Indentures are significant documents that the Court can rely on as being factually correct. On that basis the Court determines that the Complainant was an employee from the 1stSeptember 2018 to the 5thOctober 2018. Based on the above examination of the situation that pertained at the material time the Court determines that the Complainant was an employee of the Respondent from the 7thAugust 2017 to the 5thOctober 2018. Time limits Section 24 of the Act states; Complainant’s case The Complainant commenced employment with the Respondent on the 7thAugust 2017. It is his submission that he regularly worked 50/60 hours and more during his period of employment. It is his submission that he was not paid the minimum wage during his term of employment. The Complainant in his evidence took the Court through a table he had drawn up for each month showing the hours he had worked, the payment he had received and the shortfall in payment when the minimum wage was applied to the hours worked. It was the Complainant’s evidence that he had drawn up that table from his best recollection and relying on emails and text messages that showed him working late, all those documents were contained in the appendices to his submission. The Complainant also sought to rely on a handwritten note by Mr Donal O’ Riordan his training Solicitor when he was working for the Respondent. The note dated 5th November 2018 and signed by Mr O’ Riordan stated amongst other things that,“To my knowledge Khan worked approximately 50/60 hours per week.” It was the Complainant’s evidence that when he was at lectures he would go straight back to the office when the lectures were over and that he worked late into the evening and at times he worked weekends. When he was not attending lectures, he worked full-time and often worked late into the night. It was the Complainant’s evidence that he carried out work assigned to him by his training solicitor. It was his evidence that Mr Ranjha was not based in the Dublin Office and only attended there occasionally so would not necessarily have been aware of the hours he worked. It was put to the Complainant in cross examination that when he was in the office, he did other work linked to other interests that he had. The Complainant denied this. When asked to comment on a personal email that was sent by him during working hours on the 20thDecember 2017 it was the Complainant’s evidence that he was on his tea break when he sent that email. It was put to him in cross examination that from the 1stSeptember 2018 he had been self-employed, his attention was drawn to a number of invoices he had submitted. It was his evidence that the invoices although on the Respondent’s headed paper related to another business. It was the Complainant’s submission that by email of the 17thOctober 2018 he had advised the Respondent that he was owed money for the 13 months he had worked for the firm, that he had worked on average 50/60 hours, and that he was entitled to be paid the minimum wage. The Complainant also drew the Respondent’s attention to the fact that there were wages outstanding and requesting that same be paid. In his second email dated 22ndOctober 2018 the Complainant pointed out that he had not been paid for six months work and that some months he was only paid the equivalent of €5 an hour and requesting that all outstanding wages be paid to him. It is the Complainant’s submission that those emails meet the requirements under sections 23 (1) (2) and (3) of the Act. It is his submission that the Respondent had responded initially to say he would check his accounts and pay whatever monies were outstanding. However, by email of the 21stNovember the Respondent stated that the Complainant had not provided a break down and that he had already been paid enough. The Respondent did not provide a breakdown of the Complainant’s earning for the relevant period as requested. It is the Complainant’s submission that under section 22(1) of the Act the Respondent is obliged to keep records to show that the Act has been complied with for three years. If the Employer fails to keep the records then section 22(3) provides that the onus of proving compliance with the provisions of the Act lies with the Respondent Respondent’s case It is the Respondent’s submission that the Complainant was not an employee and that if he was an employee, it was only for the purpose of complying with the Law Society requirements. The Respondent submitted that the Law Society’s requirements were not something that this Court should give any consideration too. On the basis that the Respondent did not consider the Complainant to be an employee it was the Respondent’s submission that he did not keep records showing compliance with the various provisions of the Act. It was the Respondent’s submission that the Complainant did not work the hours he was claiming he worked and that while he may have been in the office late in the evening, he was not doing work for the firm it was his own personal work related to campaign’s that he was involved with. Mr Donal O’ Riordan who was the Complainant’s Training Solicitor while he was with the Respondent gave evidence on behalf of the Respondent. It was his evidence that the Complainant worked about four and a half hours a day under his supervision totalling on average twenty- two hours a week and that the Complainant never photocopied or stayed behind to do work. It was Mr O’ Riordan’s evidence that he himself generally left the office at about 4.15 pm and when he left, he did not leave work for the Complainant to do. It was put to Mr O’ Riordan in cross examination that he had written and signed a letter dated 5thNovember 2018 confirming that the Complainant worked on average 50/60 hours a week. It was Mr O’ Riordan’s evidence that “it was not a letter it was a handwritten note”. It was his evidence that the Complainant had approached him to write the note. Mr O’ Riordan did eventually concede that it was his signature on the note. It was his evidence that the hours worked by the Complainant were as per his evidence on average twenty- two hours a week. He had written that note because the Complainant had asked him, at the time he did not believe that it was anything to do with the Complainant’s training. It was the Respondent’s submission that the Complainant’s case must fail as the Complainant did not comply with section 24 (2) (a) (i) of the Act. It is the Respondent’s submission that the emails sent by the Complainant were not valid requests under the Act. Section24 (2) (a) (i) requires that an employee obtain under section 23 of the Act a statement of his or her average hourly rate of pay in respect of the relevant pay reference period. The correspondence from the Complainant did not cite the relevant section nor did it reference the Act. It was the Respondent’s submission that the Complainant did not set out what he believed the shortfalls were or what the pay reference period was. The Complainant was asked to provide a breakdown but did not supply same to the Respondent. It is the Respondent’s submission that the Court does not have jurisdiction as the Complainant, was not an employee and if he was an employee his employment ended on 31stAugust 2018 and therefore his claim is out of time. Discussion The first issue for consideration is whether or not a valid request for a statement as required by the Act was made by the Complainant. Section 23 of the Act States: (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 withsection 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the requestwould 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. In the case to hand the Respondent did not provide the Complainant with a contract of employment and or a statement of terms and conditions of employment. It would be normal practice in employment for the pay reference to be set out either in the contract or in the terms and conditions of employment if they were different documents. The Respondent does not appear to have set out at any time what the pay reference period was. The Complainant in his emails to the Respondent referenced the national minimum wage and the current rate of same at the time he wrote the email. He also referenced a thirteen month period where he regularly worked 50/60 hours a week and the fact that the payments he received, fell short of the minimum wage. He requested that he be furnished with all of his payslips amongst other things. The Act provides that the Complainant may request a written statement of the employee’s average hourly rate of pay for a pay reference period. While the Complainant did not use the language of the Act when making his request the Court finds that his request clearly indicated that he was seeking to establish his hourly rate of pay for the period he worked for the Respondent and that he required the Respondent to set that out for him. On that basis the Court finds that the Complainant did make a request in line with section 23 of the Act. The next issue for the Court to consider is the substantive issue of the hours that the Complainant worked for the period, and the rate of pay he received and whether or not that was in compliance with the Act. The Court was supplied with correspondence, submissions, oral evidence, emails and extracts from text messages all purporting to show that the Complainant had or had not worked the hours he claimed to have worked. A number of the emails and text messages were not dated and were extracted from a chain of correspondence and at best showed the Complainant was issuing personal texts/emails when he was claiming to be at work. The Court did not believe it should attach much weight to the texts and emails for that reason. In respect of the oral evidence before the Court Mr O’ Riordan’s evidence was that the Complainant worked on average twenty-two hours a week and the Complainant’s evidence was that he worked 50/60 hours a week and on occasion more than that. It was difficult for the Court to reconcile these two positions. The Court then looked to the correspondence provided to it. In particular the Court noted the requirement of the Law Society that the Complainant work at least thirty-six hours per week and the confirmation in the Articles of Indentures at the time he transferred that he had completed in-office training in line with the requirements of the Law Society. The next piece of correspondence the Court considered was the handwritten note signed by Mr Donal O’ Riordan Solicitor on the 5thNovember 2018 which stated that to his knowledge the Complainant worked 50/60 hours a week. The Court noted that both the note and the articles of indentures had been written/signed shortly after the Complainant had left work. No credible explanation was put before the Court, as to why the Complainant’s Training Solicitor would sign a note indicating that he worked 50/60 hours a week if that was not true. Nor was any credible reason given as to why if he was only working 22 hours a week and therefore not compliant with the Law Society’s requirements, that this was not commented on in some way when the Articles of Indenture were being transferred. On balance the Court preferred the Complainant’s evidence that he was working on average 50/60 hours inclusive of his hours at lectures, this was supported by the note of 5thNovember 2018. The Respondent’s witness evidence that he was only working 22 hours was contradicted by the note he had signed back in November 2018 and the documents relating to the Transfer of Indentures which he had signed in October 2018. The Complainant provided to the Court a table showing the hours he had worked each month, the amount he was paid, and the shortfall in respect of the difference between what he was paid and the minimum wage. Included in that calculation were the hours he spent at lectures which the Respondent had undertaken to pay at the rate of the minimum wage. The Respondent confirmed to the Court that he had not kept any records of the Complainant’s hours and or rate of pay. Section 22(3) of the Act provides that the onus of proving compliance with the provisions of the Act lies with the Respondent. The Respondent in this case has failed to do so. The Court accepts the table submitted by the Complainant in respect of arrears due. However, the Court cannot concede the element of his claim in respect of statutory leave as little or no details were provided to the Court in respect of this element of his claim. The Court determines that the Complainant was underpaid a total of €22,439.25 for the relevant period and accordingly requires the Respondent to pay the Complainant that amount in respect of his claim under the National Minimum Wages Act 2000 within six weeks of the date of this Determination. The appeal fails. The decision of the Adjudication Officer is varied accordingly. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Elaine McNeela, Court Secretary. |
