Complainant

Respondent

Anonymised Parties

A Driver

A Delivery Company

Representatives

  Self

HR Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00043647-002

18/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043647-003

18/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00043647-004

18/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00043647-005

18/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00043647-006

18/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00043647-007

18/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00043647-008

18/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000

CA-00043647-009

18/04/2021

The Complainant commenced his employment on 18th May 2020. His employment transferred to the Respondent on 8th June 2020 under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003. 

The Complainant referred his claims to the Director General of the WRC on 18th April 2021.

The Complainant submits as follows.

The Complainant was hired as a van driver on 18th May 2020. His employment transferred to the Respondent under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 on 8th June 2020.

The Complainant submits that on the commencement of his employment he was asked to sign a document which indicated that his rate of pay was €500 net per week. It was stated in the document that he would be required to work 50 hours a week Monday to Friday. It was custom and practice that this payment would increase to €525 net per week after three months of employment, which it did. The Complainant submits that his payslips were stored electronically using a HR portal to which he had access. The payslips for the period prior to the transfer of undertakings were removed from the portal.

The Complainant submits that after several weeks in employment, he checked his payslips and noticed that he was not paying any PAYE. He queried that with the Head of HR and Payroll by emails as he knew from his driver colleagues who were earning the same net income that PAYE was deducted from their salaries. The response he got was that he accumulated tax credits from  the start of the year. The Complainant submits that he queried that with the Revenue at the time and was informed that the net amount on his payslips was reported to the Revenue as his gross pay. The Complainant submits that it was obvious to him that the Respondent reported a lower gross income level than that of his colleagues to take advantage of his personal accumulated tax credits. The Complainant’s payslips toward the end of his employment showed various levels of gross salary not including overtime demonstrating how the gross salary level figure was manipulated to achieve the desired net result. The matter came to a head at the start of 2021. Since a new year started, the Complainant’s tax credits were calculated on a week 1 basis from 1st January 2021 with no accumulated tax credit position as it was the start of the new year. The Complainant submits that the last two payslips that he received were the only ones that showed the PAYE deductions and were for the pay periods 53 (pay date 30th December 2020) and pay period 1 (pay date 8th January 2020).

The Complainant contends that his accumulated tax position from the start of 2020 allowed the Respondent to manipulate the figure of his gross salary to the Revenue to a lower level than that paid to the other drivers on the same pay and conditions and arrive at the same net payable to the Complainant as everyone else. The Complainant contends that in doing so, the Respondent made an illegal deduction from his wages.

At the adjudication hearing, the Complainant contended that his understanding was that the payment of €500 net or €525 net was exclusive of the subsistence of €70.05 per week. He said that he received an additional payment of €152 for work performed on a Saturday.

The Respondent submits that the Complainant had signed a contract which stated that he would receive €500 net per week, which would be increased to €525 net, inclusive of a weekly subsistence payment of €70.05 . His payslips show that he received same. The Complainant did not question the matter of his wages or subsistence throughout his employment. The Respondent said that it appears that only at the hearing the Complainant contended that he did not realise that the weekly payment included the subsistence.

The Respondent exhibited a copy of a document entitled Written Statement of terms of Employment (Contract of Employment).  The Respondent asserted that the Contract was signed by the Complainant, but no signed copy was available. The document stated in the relevant parts:

Page 3:

“Pay

Your rate of pay will be €500 per week. Unless specified otherwise by legislative requirements, custom and practice or administrative arrangements, this is payable in arrears. You will be paid weekly by credit transfer.

For the purpose of the National Minimum Wages legislation your pay reference period is a month and you are entitled to request a statement of pay for any reference period during the previous 12 months. Overtime will be paid at time and a half. You will be paid a subsistence payment each week as a driver. This will be in accordance with revenue guidelines. You must qualify within these guidelines to receive the payment”.

Page 8

“Pay Your rate of pay will include €70.05 per week Gross Pay increase after 3 months of €25.00 per week NETT”

The Respondent submitted that it was noted in its HR system that the Complainant signed the Contract.

Wages are defined in Section 1 of the Act in relevant parts as:-

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice: Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind.”

Section 5 of the Act stipulates as follows:-

“5. Regulation of certain deductions made and payments received by employers

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an 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.”

In relation to the claim of alleged underpayments of wages I find as follows.

In Marek Balans v Tesco Ireland Limited [2020] IEHC 55 Finnegan J. considered Section 5 of the Act as follows:

“36. The provisions of s. 5(6) of the Act of 1991 were considered by Finnegan P. in Dunnes Stores (Cornelscourt) Limited v. Lacey [2007] 1 I.R. 478. A Rights Commissioner had found in favour of the respondents holding that the cessation of service pay amounted to an unlawful deduction, which was upheld by the EAT. It was argued that the EAT should address the question of remuneration properly payable to an employee before considering the question of a deduction or whether a deduction was unlawful. Finnegan P. concluded at p. 482:-

“I am satisfied upon careful perusal of the documents relied upon by the respondents that the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the respondents, such a determination being essential to the making by it of a determination. Insofar as a finding is implicit in the determination of the Employment Appeals Tribunal that the appellant agreed to pay to the respondents service pay and a long service increment, then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the respondents within the terms of the Act of 1991 but rather their remuneration has been unilaterally increased by the appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September, 2002. In either case there has been an error or law. Accordingly I allow the appeal.””

The High Court made it clear that, when considering a complaint under the Act, the Adjudication Officer must first establish the wages which were properly payable to the employee before considering whether a deduction had been made. If it is established that a deduction within the meaning of the Act had been made, the Adjudication Officer would then consider whether that deduction was lawful.

It is for the Complainant to make out that the wages payable to him during the period encompassed by the claim are properly payable to him under the Act.

The Labour Court in Hannigans Butchers Limited v Jerko Anders Hresik Bernak DWT 194 held as follows;-

“This Court in Melbury Developments Ltd v. Arturs Valpeters EDA0917, in a case under the Employment Equality Acts, put it clearly in stating, ‘Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn’ and that ‘The Complainant must first establish facts from which discrimination may be inferred’. While these observations of the Court reference specific requirements under the relevant legislation, the sentiments are equally applicable to the exercise of rights under other Acts covering employment law. Indeed, it is a well-established general rule of evidence to quote Palles CB in Mahony v. Waterford, Limerick and Western Railway Co., (1900)2 IR 273,that ‘…it is a general rule of law that it lies upon the plaintiff to prove affirmatively all the facts entitling him to relief…’

In the present case, the Complainant submitted that the Respondent had made and unlawful deduction from his wages. He did not offer the date of the alleged deduction or the amount of the deduction. The complaint was referred to the WRC on 18th April 2021, therefore the cognisable period is from 19th October 2020 to 18th January 2021 when the Complainant’s employment was terminated. In the initial referral to the WRC, the Complainant outlined the tax implications in respect of the payments he received from the Respondent and the alleged failures on the Respondent’s part to deal with the matter appropriately. At the adjudication hearing, the Complainant contended that the Respondent unlawfully included the subsistence payment in his overall weekly wage.

The Respondent argued that the Complainant’s contract provided that he would be paid  €500 net per week initially, which would increase to €525 net after three months in employment, and that this was inclusive of the subsistence.

While the Contract of Employment exhibited by the Respondent at the hearing was not signed by either party, I note that the Complainant confirmed that he did sign a contract which provided that his pay would be €500 net, increasing to €525 after three months.

Having considered the submissions of the parties and all evidence adduced, I find that there was no evidence offered to me to show that the Complainant was properly entitled to a payment of more than that €500 net weekly in the period from 14th May 2020 to 13th August 2020 and €525 net thereafter per week. 

I have reviewed the payslips provided by the Complainant. I note that on one occasion within the cognisable period the Complainant was paid less than the agreed net rate of pay. A payslip dated 30th December 2020, shows a payment of €490.25 net which is less than €525 properly payable to the Complainant.

I declare this complaint to be partially well founded. I require the Respondent to pay the Complainant €34.75 net.

The Complainant submits that he received a statement of his core terms which deliberately contain false or misleading information.

The Complainant contends that when the Respondent stated that it would pay a net salary of an initial €500 and subsequent €525 net per week, it gave the misleading impression that the gross salary would be higher and it was able to use this misleading information to its advantage to artificially lower the rate of gross pay to the Complainant relative to the other drivers on the same pay and conditions.

The Complainant also contends that when he received his termination letter, the date of starting of his employment was inaccurately shown as 8th June 2020, the date when the transfer of undertaking took place and not the actual date of 18th May 2020. The Complainant further submits that his termination letter stated that he was released from a casual contract of employment. The Complainant submits that he was hired for a full-time position, not on a casual basis. The Complainant contends that these two statements are included to create the misleading information that he was employed on a short-term casual contract basis.

The Complainant also contends that when the Respondent removed payslips from the HR portal relating to the portion of the Complainant’s employment with the Transferor it did so to give the false and misleading impression that hie employment started at a later date of 8th June 2020 rather than the actual date of 18th May 2020.

At the adjudication hearing, the Complainant said that he felt mislead from day one. While he said that he did not have a copy of his contract, he confirmed that he did sign one. He was not sure about matters such as a probationary period or subsistence in the contract.

The Respondent submits that the contract the Complainant had signed was clear and contained no misleading information. It said clearly that the Complainant would be paid €500 net (increasing to €525) including subsistence.

The Respondent asserted that the document was signed by the Complainant, it had an electronic “tick” box system to confirm that an employee had signed their contract. The Respondent conceded that the signed copy was not available.

The Respondent did not dispute that the termination letter erroneously said that the Complainant was employed on a casual basis, which was not the case.

Section 6(B) of the Terms of Employment (Information) Act 1994 provides as follows:-

“6B. Offences

(2) An employer who deliberately provides false or misleading information to an employee, or who is reckless as to whether or not false or misleading information is provided, as part of the statement required by section 3(1A), shall be guilty of an offence.

(3) A person guilty of an offence under this section shall be liable on summary conviction to a class A fine or imprisonment for a term not exceeding 12 months or to both.

(4) Where an offence under this Act is committed by a body corporate and is proved to have been so committed with the consent or connivance of any person, being a director, manager, secretary or other officer of the body corporate, or a person who was purporting to act in any such capacity, that person shall, as well as the body corporate, be guilty of an offence and shall be liable to be prosecuted against and punished as if he or she were guilty of the first-mentioned offence.

(5) Summary proceedings for an offence under this section may be brought and prosecuted by the Commission.”

Section 7 states:- “(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6 or 6C shall do one or more of the following namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6 or 6C, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under section 3, 4, 5 or 6, and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

(e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.”

The Complainant’s claim relates to an offence that does not fall within the remit of the Adjudication Services.  I find that I have no jurisdiction to hear a complaint pursuant to section 6(B) of the Act.

I have no jurisdiction to hear this complaint.

The Complainant submits that he was not notified  in writing of a change to his terms of employment.

The Complainant submits that he commenced his employment on 18th May 2020 and was not notified that in writing or verbally that his employment transferred to the Respondent on 8th June 2020. He submits that he only became aware of this change to his terms and conditions of employment when the name of the Respondent appeared on his payslip.

In relation to the Respondent’s submission that a meeting took place of 8th June 2020, the Complainant contented that he did not attend the meeting and he did not believe it took place. The Complainant submitted that he does not remember receiving any letter from the Respondent.

The Respondent submits that a letter was issued on 7th May 2020 by email to all employees including the Complainant. The Respondent further submits that a meeting was held on 8th June 2020 with all employees by a representative of the Head Office and the Depot Manager at the depot to discuss the transfer of undertakings. The Respondent submits that, as the Complainant joined after 7th May 2020, the letter of 7th May 2020 was given to him together with his contract at the commencement of employment. 

The Respondent asserted that a further letter in respect of the transfer was given to all employees.

The Respondent conceded that there was no record of the meetings kept and no minutes taken.

The Terms of Employment (Information) Act, 1994 stipulates as follows:-

“5. Notification of changes

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect, …”

The Complainant claims that the change of employer occurred on 8th June 2020 and the Respondent failed to so notify him within one month of the change which was in breach of Section 5 of the Act.

The Complainant stated that other than the change of employer there were no other alterations to his terms and conditions of employment as a result of the transfer. All his terms and conditions, including pay and hours of work remained the same.

It was not in dispute between the parties that the transfer of undertakings took place on the 8th June 2020. I am satisfied that the change of employer constituted a material change to the Complainant’s terms and conditions of employment. Moreover, I am satisfied that there was an obligation on the Respondent in accordance with the provisions of Section 5 of the Act to notify the Complainant of this change within one month of the change taking effect.

The Respondent submitted that staff were notified in writing of the changes by letter dated 7th May 2020 and by further letter, a date of which was not available. The Complainant denies that he received any such letter. 

Section 5(1)(a) of the Act requires an employer to give written notification of a material change to an employee’s terms and conditions within one month of the change taking effect. In the absence of any evidence to support the Respondent’s position that such notification was issued I find that a breach of section 5 occurred.

I declare this complaint to be well founded. I require the Respondent to pay the Complainant €525 being approximately equivalent to one week’s net pay by way of compensation for breach of a statutory right.

The Complainant submits that he was not notified of the working hours regulations applying to the road transport sector.

The Complainant submits that at the start of his employment, he was asked to sign a document which indicated that his rate of pay would be €500 net per week and that he would be obliged to work 50 hours per week Monday to Friday. It was not stated in the document what working hours regulations apply to the road transport sector nor was the Complainant verbally advised what they were either.

The Respondent submits that the Complainant’s hours of work and break were clearly outlined in his contract.

The European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 were made for the purposes of giving effect to Directive 2002/15/EC of the European Parliament and of the Council of 11th March 2002.

The scope of the Regulations is set out in Regulation 3 which provides that:

“3.these regulations apply to -

a) mobile workers who are employed by or who do work for one or more undertakings established in a member State, and

(b) self-employed drivers

Participating in road transport activities to which either the Council Regulations or the AETR applies.”

The Regulations permit mobile workers to refer complaints to the Workplace Relations Commission in relation to a contravention of a provision or requirement set out in the legislation. This avenue for redress is only available to mobile workers. 

The scope of the Directive covers only mobile workers employed by transport undertakings established in a Member State participating in mobile road transport activities covered by Regulation (EEC) No. 3820/85 as amended by Regulation 561/2006, or by the European Agreement concerning the work of crews of vehicles engaged in international road transport.

The scope of Directive 2002/15 is limited to vehicles used for the carriage of goods where the maximum permissible weight of the vehicle, including any trailer or semi-trailer, is 3.5 tonnes or more covered by the European Agreement Concerning the Work of Crews Engaged in International Road Transport (“AETR”). It also applies to passenger-carrying vehicles that are built or adapted to carry more than nine people, including the driver.

The Complainant’s evidence at the adjudication hearing was that he held a category B licence, he drove a vehicle under 3.5 tonnes, which was not fitted with a tachograph.

I am satisfied from the evidence adduced that the Complainant is not covered by Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

I declare this complaint to be not well founded.

The Complainant submits that his employer is not keeping statutory employment records, specifically that the hours worked by the Complainant were not recorded and not advised to him.

The Complainant agreed that an overtime sheet was kept but he was not given one.

The Respondent submits that there are timesheets filled in by each employee. The Respondent said that start and finish times were recorded and signed off by the employees.

As I have already indicated above, I am satisfied that the Complainant was not a mobile worker within the meaning of the Regulations. In the circumstances, I find that his complaint under the Regulations is not well founded.

I declare this complaint to be not well founded.

The Complainant submits that he did not receive equal pay because of his family status.

The Complainant submits that the gross level of pay paid to him was artificially lower than that paid to his colleagues because his accumulated tax credits position occurred from his status as primary carer for his children until he commenced employment with the Respondent. The Complainant submits that in paying him a lower gross salary than his colleagues for the same work, he was discriminated against because of his family status. The Complainant named a comparator Mr GR.

At the adjudication hearing, the Complainant said in his evidence that the matter is convoluted to explain but it means that the Respondent was allowed to pay a different salary based on family status.

The Complainant explained that he was single, and his colleagues were married which was less “costly” to the Respondent; net pay could be the same but gross pay would be less because of tax credits accumulated.

In respect of the Comparator, Mr GR, the Complainant said that he did not know the details and had no information in relation to his salary. The Complainant said that he knew his name and assumed it would be a contrast to his own circumstances.

The Respondent submits that the Complainant was hired on a net pay basis. At no point was he asked about his tax credits or family status. The Respondent contends that all drivers are paid the same net salary, irrespective of their family status.

The Respondent asserted that the Comparator, Mr GR was paid the same €525 net per week.

The Complainant claims that he was subjected to discrimination on the grounds of family status. The Complainant submitted that, as a result of being single and primary carer for his children he was paid less than his colleagues.

The Complainant named a comparator, Mr GR. The Complainant contented that he did not know what salary Mr GR was paid or what exactly were his family circumstances. The Respondent argued that all drivers are paid exactly the same salary of €500 net per week, which increases to €525 after three months in employment. The Respondent argued that tax implications are subject to the Revenue Commissioners’ regulations.

Section 85A of the Employment Equality Acts sets out the burden of proof which applies in a claim of discrimination.  It requires the Complainant to establish, in the first instance, facts from which it may be presumed that there has been discrimination in relation to him.  If he succeeds in doing so, then, and only then, is it for the Respondent to prove the contrary.  The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of “sufficient significance” before a prima facie case is established and the burden of proof shifts to the Respondent. 

In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the Complainant. It is only where such a prima facie case has been established that the burden of proving there was no infringement of the principle of equal treatment passes to the Respondent. The Labour Court elaborated on the interpretation of Section 85A in the case of Melbury v. Valpeters EDA0917where it held that Section 85A:

"…. provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts, which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the Complainant and the language of this provision admits of no exceptions to that evidential rule.”

Having regard to the totality of the evidence adduced, I am satisfied that the Complainant has failed to establish facts from which it could be inferred that persons of a different family status were or would have been treated more favourably than him in relation to the matters which he has sought to rely upon in the context of the instant complaint. The Complainant has failed to adduce any significant evidence to support his claims that the alleged treatment was discriminatory on the ground of family status. He has essentially relied upon assumption and assertion in support of these claims. In coming to this conclusion, I am also cognisant of the Complainant’s own evidence that it was custom and practice that the initial payment of €500 net increased to €525 net after three months in employment. This “custom and practice” implies that the payment applied to the drivers regardless their family status. 

Having regard to the foregoing, I find that the Complainant has failed to establish a prima facie case of direct discrimination on the grounds of family status.

I declare this complaint to be not well founded.

The Complainant submits that he was required to work than the maximum permitted number of hours. He asserts that he worked 6 days Monday to Saturday over the last four months of employment and worked more than 48 average hours per week.

The Complainant asserted that his payslips show that he would have worked 45 hours and additional time on Saturdays. He said that he worked six Saturdays before Christmas starting at 6-6.30am until 4-5pm.

The Respondent denied that the Complainant worked excessive hours.

The Respondent conceded that on some weeks the hours of work would increase up to 54 hours but argued that this was not permanent. The Respondent did not disagree that the Complainant would have at times worked 54 hours. The Respondent conceded that the Complainant worked a number of Saturdays before Christmas 2020, but argued that this was not the norm.

The Respondent confirmed that it had no records available to verify the hours worked.

Section 15. Weekly Working Hours of the Acts provides as follows:-

“(1) An employer must not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed— calculated over a period (hereafter in this section referred to as a “reference period”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 3, points (a) to (e) of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection, or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.”

The instant complaint was made to the Workplace Relations Commission on 18th April 2021. Therefore, the cognisable period for the instant complaint in accordance with the provisions of Section 41(6) of the Workplace Relations Act 2015 is the six-month period prior to the referral of the claim i.e. from 19th October 2020 to 18th January 2021 (i.e. the date of termination of the Complainant’s employment).

Burden of Proof

Section 25 of the Act provides for the keeping of records, it states: -

“25.—(1) An employer shall keep, at the premises or place where his or her employee works or, if the employee works at two or more premises or places, the premises or place from which the activities that the employee is employed to carry on are principally directed or controlled, such records, in such form, if any, as may be prescribed, as will show whether the provisions of this Act are being complied with in relation to the employee and those records shall be retained by the employer for at least 3 years from the date of their making.

(2) The Minister may by regulations exempt from the application of subsection (1) any specified class or classes of employer and regulations under this subsection may provide that any such exemption shall not have effect save to the extent that specified conditions are complied with.

(3) An employer who, without reasonable cause, fails to comply with subsection (1) shall be guilty of an offence.

(4) Without prejudice to subsection (3), where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the said provision was complied with in relation to the employee shall lie on the employer.”

Accordingly, based on the provision at Section 25(4) of the Act, the onus of proving compliance with the Act rests with the Respondent.In Jakonis Antanas v Nolan Transport[2011] 22 E.L.R. 311 the Court held in relation to the application of that subsection as follows: -

“The burden on a respondent of proving compliance with the Act arises in proceedings in which a complaint of non-compliance is made. It is clear from s.27(2) of the Act that the jurisdiction of the Rights Commissioner is invoked by an aggrieved worker, or his or her trade union, by presenting a complaint to a Rights Commissioner that his or her employer has contravened a relevant provision of the Act in relation to him or her. The subsection goes on to provide that where a complaint is made the Rights Commissioner shall give the parties an opportunity to be heard and to present to the commissioner any evidence relevant to the complaint.

This suggests that the evidential burden is on the claimant to adduce such evidence as is available to support a stateable case of non-compliance with a relevant provision of the Act. It seems to the Court that, as a matter of basic fairness, the claimant should be required to do so with sufficient particularity as to allow the respondent to know, in broad terms, the nature of the complaint and the case which they are expected to meet. As was pointed out by Lord Devlin in Bratty v Attorney General for Northern Ireland[1963] A.C. 386 an evidential burden is satisfied where the evidence adduced is sufficient to “suggest a reasonable possibility”

The respondent should then be called upon to put the records required by s.25(1) of the Act in evidence showing compliance with the relevant provision in issue. If records in the prescribed form are produced the legal burden will be on the claimant to satisfy the Rights Commissioner, or the Court on appeal, that the records ought not to be accepted as evidence of compliance. Thus the claimant will bear both the evidential and the legal burden of proving, on the balance of probabilities, that his or her rights under the Act were contravened in the manner alleged. If the claimant fails to discharge that burden he or she cannot succeed.

Where records in the prescribed form are not produced, and the claimant has satisfied the evidential burden which he or she bears, it will be for the respondent to establish on credible evidence that the relevant provision was complied with in relation to the claimant. The respondent will thus be required to carry the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the claimant. If the respondent fails to discharge that burden the claimant will succeed.”

This requires the Respondent to satisfy the Adjudication Officer that it is more probable than not that the Act was complied with in respect to the matters complained of by the Complainant. If the Respondent does not do so or if the probabilities are equal the Complainant will succeed.

Based on the terms of the Complainant’s contract of employment which provided for 50 hours working week coupled with seven examples of payslips in the cognisable period which show a payment for work performed on Saturday in addition to his standard working week, I am satisfied that the Complainant has met the evidential burden of proof as the facts presented are sufficient to suggest a reasonable possibility that Section 15 of the Act was contravened. In the absence of any evidence to the contrary, I find that the Respondent has failed to meet the legal burden of proving, on the balance of probabilities, that the Act was not contravened in the manner alleged by the Complainant.

In the well-known Von Colson and Kamann V Land Nordfhein –Westfalen [1984] ECR 1891 case, the CJEU made it clear that where a right which is derived from the law of the Communities is infringed the sanction for breaches must be effective, proportionate and dissuasive and must provide a real deterrent against future infractions. However, the Court also pointed out that the redress must be proportionate and appropriate.

I declare this complaint to be well founded, I direct the Respondent to pay the Complainant compensation of €2,000.

The Complainant submits that he did not receive the national minimum rate of pay. He asserts that on 18th December 2020 he received a payment that was less than that to which he was entitled under the National Minimum Wage Act, 2000.

The Complainant asserted that his total salary divided by the hours he worked showed that he was paid below the minimum wage,

The Complaint did not obtain a statement from the Respondent of his average hourly rate of pay for the pay reference period.

The Respondent submits that it does not believe the Complainant was paid below the national minimum wage.

Section 23 of the National Minimum Wage Act, 2000 provides:

“(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.”

Section 24 of the Act - Disputes about entitlement to minimum hourly rate of pay 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 rights commissioner may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be,

Section 24(2)(a) of the Act provides that a dispute cannot be referred to an Adjudication Officer under the Act unless an employee has received a statement pursuant to Section 23, or having requested such a statement the employer has failed to provide the statement within the period of four weeks.

The Complainant confirmed that he had not requested a statement of average hourly rate of pay from his employer. Therefore, I find that I have no jurisdiction to deal with the matter.   In Mansion House Ltd v Izquierdo MWD 3/2004, the Labour Court held that, where a claimant had failed to request a statement in accordance with section 23(1) of the Act, the “appropriate course of action” was for the rights commissioner to decline jurisdiction without prejudice to the claimant's right to re-enter the same complaint having complied with the said subsection. It was the Labour Court's view that a decision dismissing the claim on its merits on the basis of non-compliance with s.23(1) was neither “appropriate nor is it warranted by any provision of the Act”.

For the reasons set out above, I declare that I do not have jurisdiction to hear this complaint without prejudice to the Complainant's right to re-enter the same complaint having complied with Section 23 of the Act.

Mobile worker- minimum wage – excessive hours - pay