Complainant

Respondent

Parties

Warren  Dolan

Joe Duffys BMW

Representatives

Self

Don Garry

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-00049230-001

16/03/2022

A complaint was received by the Director General of the Workplace Relations Commission from Warren Dolan alleging that the Respondent contravened the provisions of the National Minimum Wage Act, 2000 in relation to him between January 2020 and September 2020.  The said complaint were referred to me for investigation. A hearing for that purpose was held on 26 October 2022. 

The Complainant submitted that he had been employed as an apprentice with the Respondent from 2 January 2020 until 28 January 2022 but that the Respondent did not register him as with Solas until September 2020.

The Complainant submits that from January 2020 until September 2020 he was paid the apprentice rate of €600 per month for a 40 hour week.  The Complainant contends that he should have been paid the minimum wage of €9.80 per hour during that period as he was not registered with Solas.

The Respondent submits that the Adjudication Officer of the WRC does not have jurisdiction to hear this complaint as the Complainant has not fulfilled the requirements of section 23 of the National Minimum Wage Act, 2000 which requires that the Complainant request of their employer a statement of their average hourly rate of pay in respect of a relevant pay reference period.

The Respondent cited the Labour Court case Mansion House Ltd v Izquierdo MWD043 in support of its position.

The Law

Section 10 of the National Minimum Wage Act 2000 states that “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 National Minimum Wage Act 2000 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.”

At the adjudication hearing, the Complainant confirmed that he had not requested a pay reference period statement as required under section 23 of the National Minimum Wage Act. I note that on his complaint form submitted to the WRC on the 7th July, 2020, 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 ticked the ‘No’ box. 

Section 24 of the National Minimum Wage Act 2000 deals with disputes about entitlement to the minimum hourly rate of pay. It 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 thatsection 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”

Findings

It is clear that Section 24 makes it mandatory for an employee to request of their employer a statement of their average hourly rate of pay in respect of a relevant pay reference period, in order to pursue a dispute about his/her entitlements under the Act. As the Complainant has not obtained the statement as required by section 23 of the Act, which by virtue of section 24 is mandatory, I find that I do not have jurisdiction to hear this complaint.

In Mansion House Ltd v Izquierdo MWD043, the Labour Court commented as follows in relation to the approach of the WRC Adjudicator:

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

I find that I do not have jurisdiction to hear this complaint, In line with the findings of the Labour Court above.  The Complainant is not precluded from re-entering the same complaint having complied with section 23 of the Act, subject to relevant time limits.

For the reasons outlined, I find that I do not have jurisdiction to hear this complaint.

Absence of statement required under section 23 of the minimum wage act