Complainant

Respondent

Anonymised Parties

A Shop Assistant

A Food Shop

Representatives

Appeared in Person   

 Proprietor

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-00039053-001

06/08/2020

On 6 August 2020, the Complainant, a Brazilian National submitted a complaint that she had not received the National Minimum Rate of Pay. She confirmed that she had received a statement from her employer of her average hourly rate of pay for her pay reference period.

The Respondent has rejected the claim.

Both parties submitted some written detail on their outlined positions.

At the commencement of the hearing, I asked the complainant to exhibit whatever documents she had in relation to the requirements of Section 23 of the Act. As nothing was forthcoming, I read out the terms of Section 23 of the Act. I afforded the complainant two breaks to obtain these documents, which I explained were crucial to my carriage of the case. At all times, the complainant assured me that she had requested a statement in accordance with Section 23 of the Act.

The Complainant exhibited some forms from an Employment advisory body, but I did not receive any documentation relevant to Section 23 of the Act. Considering the Complainants insistence that she had this document in her possession, I afforded her 7 days to submit any documents in relation to Section 23 of the Act to the WRC.

The Respondent denied having ever receiving   a request in accordance with Section 23 of the Act.

Both parties in this case were lay litigants. The Complainant had inserted that she intended to proceed without representation on her complaint form.

The Respondent attended with two members of his Management Team.

The Complainant outlined that she had worked as a Shop Assistant from 21 June 2019 until her departure for Brazil in January 2020.

 She submitted that she had remained in employment to the present day.

The complainant exhibited a Statement of Terms and Conditions of Employment dated 4 July 2019, which reflected a starting salary of €9.80 per hour. She confirmed that she had received copies of the respondent submissions in advance of the hearing .

The Complainant submitted that the week of 23 December 2019 reflected the latest date on which she alleged that she had received a payment less than the minimum wage. She confirmed that she had obtained a statement from the Respondent on the average hourly rate of pay for the reference period.

The Complainants written complaint, dated 6 August 2020 comprised of:

1.       She had not been paid for 3 training days

2.       First two weeks of employment were €1.00 less per hour than Minimum Wage.

3.       Seeking Public Holidays and Annual Leave

4.       Uncertainty of employment status.

The Complainant went on to rule out Mediation.

A follow up email dated 7 September 2020 mentions “Complaints of Constructive Dismissal / Employment Equality “

Unpaid hours.

I had some reservations regarding the complainant’s capacity to understand the process she had engaged in. I had some concerns regarding her comprehension of the English language. I was mindful that the complainant had not requested the support of an Interpreter and had no desire to underestimate her capacity in that regard.

Her written submission was well structured. The complainant left me in no doubt of her comprehension when she engaged freely with the respondent in exploring a mechanism for settlement towards the end of the hearing. While I was not present for that engagement, I found that the complainant appeared comfortable both prior to and in the aftermath of that engagement.

I am satisfied that she comprehended the English language.

The Complainant told the hearing that she had been paid on occasion for 19 hours instead of 20. she had raised the matter without resolution.

In October 2019, she requested Annual Leave to return to Brazil. This was approved and her last day of work was 22 December 2019.

Her stay in Brazil necessitated an extended stay due to her becoming ill and needing treatment.

She decided to leave the job as she could not comply with the roster from Brazil. She pursued annual leave from October -December 2019 but was unsuccessful.

The Complainant told the hearing that her notification of leaving had upset the respondent and she was informed it was inconvenient as notice of leaving was required.

The Complainant eventually returned to Ireland on 4 July and following her quarantine, she followed up on her roster as she understood that she owed the respondent a week work in notice. She said that she was not looking for her job back and had since found new work in December 2020.

She had a chance encounter with the respondent on the street and was refused the payments she sought. She contacted an Employment Advisory Agency.

When asked to produce a copy of whatever documents she held under S 23 of the Act, she exhibited  Personal Documents from the Advisory  Agency on advocacy and permission to act .

 I gave the complainant a break to seek to find the documents I sought and once again, explained that I needed to have documents which complied with S23 of the Act, or confirmation of when she requested the statement  to proceed with the case.

The Complainant submitted a large dossier of payslips and records of shortfall in salary received from her file.

During the hearing, the complainant agreed to accept the respondents offer to pay her outstanding annual leave.

On 22 February, I received a copy of an unsigned contract of employment. This was marked in response

“Please find in attachment contract in response to request about Section 23 of the Minimum Wage Act “

No further documentation followed.

The Respondent operates a food shop and confirmed that the complainant had commenced work in June 2019. The Respondent had entered an early written response to the claim in September 2020.

The Proprietor clarified that the complainant had prefaced her employment by engaging in 4 hours of induction on a non-pay basis.

 They paid a 90% training wage for 2 weeks at the commencement of employment and was unaware of its abolishment from March 2019. The Respondent submitted that the complainant had received Minimum Wage of €9.80 an hour for the duration of her employment.

 The respondent agreed that there was an outstanding liability on annual leave from October and had agreed to forward this to the complainant prior to the hearing, without response.

The Respondent was happy to grant annual leave to the complainant from 22 December 2019 to 23 23 January 2020. Her request for an extension for 1 week was granted to facilitate a health issue.

On 31 January 2020, the Complainant informed the Business by email that the complainant would not be returning to Ireland for several months and that she had decided to leave the Business.

“……. I know that you cannot wait for me, so I decide to leave my job in X. Could you let me know what I need to do? Do you need a letter? I really appreciate all support I got from you and X team”

The Respondent submitted that the complainant’s resignation was accepted by What’s App in January 2020 and disputed the complainant’s contention that the employment relationship was still live.

The Complainant had decided not to return, which had been inconvenient for the respondent.

The Respondent confirmed that the complainant had not requested a statement of her average hourly rate of pay in respect of the relevant pay reference period. The Respondent had not been the subject of a WRC Inspection in that regard.  The Respondent had not compiled a statement a statement in accordance with Section 23 of the Act.

Following on from the theme contained in the respondents pre-hearing communication, the respondent sought some time to seek to explore any basis for a compromise in the case. This time was granted, and the parties engaged separately over a 20-minute time frame without reaching resolution in the case.

The Respondent re-affirmed that the Business was prepared to meet a payment of €290.70 in unpaid annual leave.

The Respondent committed to sending in an email dated July 15, 2020 which would clarify the confirmation of cessation of employment.

I have not received this requested follow up.

I have been asked to decide in the claim for payment of the National Minimum Wage. I have had an opportunity to review the original complaint form and I am satisfied that the complaint is framed as a complaint under the National Minimum Wage Legislation.

The original complaint form received on line on 6 August 2020 was framed as a complaint under the National Minimum Wage Legislation. Another more expansive complaint form was received the next day. It was also framed as a complaint under the National Minimum Wage.

Both complaint forms outlined that the complainant was to present her case without representation or the need for special facilities. However, I was drawn to the recorded detail on the complaint form of 7 August 2020.

The form was populated by the WRC with the following text:

An Adjudication Officer cannot (embolden) deal with your complaint unless you obtain a statement from your employment on your average hourly rate of pay for your pay reference period or you requested a statement, but the employer did not provide it within 4 weeks of your request.

The Complainant was then asked if she had obtained that statement? to which she answered yes. She was then asked to forward the statement. This was not received before the Hearing date of 12 February 2021 and the quest for same took a considerable period at hearing. I thank the parties for their patience in that regard.

I have not received this statement or details of when the request was made. The complainant sent in a copy of the contract of employment already on file post hearing.

I am satisfied that the complainant understood my request for this Statement and my seeking details of when she had made the request for the statement.

The Respondent adopted a consistent position of not having been requested to provide such a statement at any time.

The Complainant raised several other issues regarding her employment at hearing. Annual leave and public holidays. She confirmed that she had not activated the grievance procedure in pursuit of these during her employment. I cannot accept, that these matters fall within the contours of the complaint made. I appreciate that the parties communicated an understanding on payment of annual leave during the hearing. I explained that that matter was not before me.

I must decide that these matters are not properly before me and I am confined in my decision making to the complaint under the National Minimum Wage Act.

The entitlement to a minimum rate of pay is governed by the National Minimum Wage Act, 2000. It is an hourly rate of pay and is set, from time to time by the relevant Minister on the recommendation of the Low Pay Commission. during the time line of this case, the minimum wage was set at €9.80 per hour. It currently stands at €10.20 per hour.

The Act applies to persons who are employees in accordance with Section 2 of the Act.

Reckonable components comprise of basic salary, shift premium, piece rates, monetary value of board and lodgings, service charge, payments under Section 18 of Organisation of Working Time Act 1997 and pay reference period payments. There are 19 non-reckonable components. There are also several exclusions such as time spent on standby, annual leave, sick leave or lay off or when paid during notice.

The Act goes so far as to provide in section 41 that an employer who experiences financial difficulty can make an application to the Labour Court for an exemption from the obligation to pay. However, there are strict criteria and the mechanism has not been utilised to date.

Section 23 of the Act provides:

Employee entitled to statement of average hourly rate of pay for pay reference period.

23

23.— (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 to the employee.

(6) An employer who, without reasonable excuse, fails to comply with this section or a request under this section, or who provides false or misleading information to an employee in a statement under subsection (4) knowing it to be false or misleading, shall be guilty of an offence and be liable on summary conviction to a fine not exceeding £1,500.

An employee can only proceed to make a complaint to the WRC seeking arrears of pay by reference to the minimum wage if they obtain a statement of earnings under this provision in respect of the reference period to which the complaint relates .Where , however, the employer fails to provide the statement within four weeks from the date of the request , the employee  may nonetheless proceed with the complaint .

The Minister (see 515 Dail DebatesCol. 975) described this section as having been designed “to provide a structure that allows any potential dispute to be resolved speedily between an employee and an employer”.

The section does not specify a statutory form for compliance with its provisions. Accordingly, a letter to the employer, pointing out that the complainant considered she was entitled to a dated payslip with a record of how much he was being paid per hour, met the statutory requirements: Carway V Vacas MWD 13/2013

My jurisdiction in this claim is set out in Section 24 of the Act.

24. Disputes about entitlement to minimum hourly rate of pay

[(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,

I have not received a record of a Statement under Section 23 of the Act. I am not satisfied that the complainant requested this statement. On this, I accept the evidence of the respondent.

I afforded the parties time away from the hearing, at the request of the respondent   to consider a possible solution in this case, none was forthcoming. I explained that those discussions would be without prejudice to the substantive case.

I must conclude that the complainant has failed to request or produce a statement, in accordance with Section 23(1) of the Act.  My jurisdiction to progress the case is now halted.

Mindful of the Labour Court in Mansion House ltd V Izquierdo MWD/2014, My role in this case has now concluded for lack of jurisdiction.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 24 of the National Minimum Wage Act, 2000, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I must conclude that the complainant has failed to request or produce a statement, in accordance with Section 23(1) of the Act.  My jurisdiction to progress the case is now halted.

Mindful of the Labour Court in Mansion House ltd V Izquierdo MWD/2014, My role in this case has now concluded for lack of jurisdiction.

Prior Notification Requirements under National Minimum Wage Act, 2000.