Complainant

Respondent

Parties

Darren  Lawlor

McAllister’s Garage Limited

Representatives

  Self-Represented

 Self-Represented

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-00033515-001

20/12/2019

The Complainant commenced employment with the Respondent on 24th January 2018. In late 2018, the Complainant transferred to an associated company within the Respondent’s group of companies.

On 20th December 2019, the Complainant lodged two complaints under the National Minimum Wage Act with the Commission. These complaints allege that the present Respondent, and the company to which the Complainant transfers thereafter, did not pay the national minimum wage during the Complainant’s tenure. The Respondent denied this allegation, submitting that the Complainant was paid the correct rate for a registered apprentice at all times.

Hearings in relation to this matter, and the connected matter against the transfer company, were arranged and convened for 16th September 2021. This hearing 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 submissions in advance of the hearing and expanded upon the same at the hearing. At the request of the Adjudicator, further correspondence was received following the hearing, which was copied to both sides.

At the outset of the hearing, an issue was raised as to my jurisdiction to hear the complaint. This preliminary issue will be considered prior to the substantive matter.

At the commencement of the hearing the it was put to the Complainant that the current Act requires certain prescriptive steps to be followed prior to the legal referral of a complaint. In particular, it was put to the Complainant that he must have sought a statement from his employer seeking an average hourly rate for a pay reference period. It was put to the Complainant that the complaint can only be lawfully referred once this reference has been received or on the expiry of a certain period of time following the receipt of the request.

By submission, the Complainant stated that the Respondent received a solicitor’s letter on his behalf dated 4th July 2019. It was submitted that this correspondence set out the requests prescribed by the legislation, and that consequently the complaint had been lawfully referred.

The Respondent submitted that the Complainant had not complied with the prescriptive steps set out in the legislation and, as such, I had no jurisdiction to hear the complaint.

Section 24(2) of the Act provides that,

“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 rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

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.

Section 10 of the Act provides that,

“An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month”.

The Complainant’s solicitor’s letter of 4th July 2019 contains the following passage,

“We should be obliged if you would let us have a record of (the Complainant’s) hours worked and wages paid for the duration of his employment”.

The first point to be noted regarding this statement is that it seeks details regarding earnings from the commencement of the Complainant’s employment, or 24th January 2018 to the last day of the Complainant’s employment. Such a request does not fall within the 12-month period immediately preceding the request as stipulated by Section 23(1). Furthermore, this request does not identify a pay reference period as requires by Section 23(3) but refers to the entirety of the Complainant’s employment.

In such circumstances, I find that this request of 4th July 2019 does not comply with the requirements set out in Section 23 of 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 complaint as presented.

I find that I have no jurisdiction to hear the complaint as referred.

Statement of Earnings, Pay Reference Period