Complainant

Respondent

Anonymised Parties

Electrician’s Apprentice

Electrician

Representatives

Self-Represented

Mr. Michael O'Sullivan, Arra HRD

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-00035851-001

27/04/2020

The Complainant commenced employment with the Respondent on 30th April 2019. The Respondent is an electrician, with the Complainant acting as his apprentice. The Complainant worked 39 hours per week, for which he received a weekly payment of €246.63. The Complainant resigned his employment on 5th December 2019.

On 27th April 2020, the Complainant lodged the instant complaint with the Commission. Herein he alleged that he received an effective rate of €6.33 per hour, well below the National Minimum Wage. While he accepts that he was acting as an apprentice at the relevant time, he did not accept that the exemption in the Act applied as this apprenticeship was not registered with the appropriate third-party body. By response, the Respondent denied the claim, stating that the Complainant was paid the appropriate rate for an electrician’s apprentice. They further submitted that it was the Complainant’s responsibility to register himself with the third party. While this was belatedly completed, the Complainant’s tenure with the Respondent was recognised as an official period of apprenticeship by the third party.

A hearing in relation to the matter was convened and finalised on 28th January 2021. This was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. Both parties issued written submissions in advance of the hearing.

Prior to the substantive hearing, the Respondent submitted that the Complainant had not met the conditions precedent stipulated by the Act and, consequently, I did not have jurisdiction to hear the substantive complaint. 

The Respondent submitted that the Complainant had not complied with the conditions set out in Section 24 of the Act and consequently the Complaint could not proceed.

In this regard, Section 10 of the Act provides,

“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 Act 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.”

On the complainant form, 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 answered “no”. In answer to the question “have you or did you request a statement from your employer of your average hourly pay for your pay reference period” the Complainant also answered “no”. During the hearing the Complainant, when asked directly, confirmed that he had not sought such a statement from the Respondent. While the Complainant did issue correspondence after the lodgement of the present claim, this did not comply with the terms of Section 23 above.

Section 24 of the Act provides that,

“(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”

Having regard to the foregoing, it is clear that Section 24 mandates that the Complainant must obtain a statement in accordance with Section 23 in order to pursue a claim under the Act.

In the matter of Mansion House Ltd v Izquierdo MWD043, the Labour Court held that,

“…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 claimant’s right to re-enter the same complaint having complied with the said section…”.

Having regard to the foregoing, I find that I do not have jurisdiction to hear the present complaint.

CA-00035851-001 Complaint under the National Minimum Wage Act                                                                                                                                  

I find that I do not have jurisdiction to hear the Complainant.

National Minimum Wage, Statement of Hourly Pay.