Complainant

Respondent

Parties

Alan  Doyle

South Dublin Co Council

Representatives

 Local Government Management Agency (LGMA)

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-00057667-001

11/07/2023

The complainant started working with South Dublin County Council in November 1976 and began driving a JCB in 1979. He has referred a complaint under the National Minimum Wage Act, 2000.

In 2008, the complainant  approached his union representative as he felt the hourly rate was low for a JCB driver. There is also an issue as to whether his allowances form part of his weekly wage.  

He says  he was not paid the correct hourly rate for all the years of overtime he completed.

More recently his current union representative took up the complaint over the last twelve months and confirmed that after investigating this complaint that the allowances do not make up the hourly rate.

On April 28th, 2023, he was at a meeting in the HR Department in Dublin County Council subsequent to which he got  a breakdown of wages which stated that his extras allowances were included in the hourly rate.

The complainant  commenced employment with Dublin County Council in 1976 and was appointed to Excavator Loader (JCB) Driver in July 1981. He submitted a claim for adjudication to the WRC on July 11th,  2023 under Section 24 of the National Minimum Wage Act 2000 following raising an initial query in relation to his rate of pay with the respondent in April 2023.

The complaint is under the NMW Act 2000 suggesting that the Council is in breach of the Act by not paying the complainant  at least the National Minimum Wage currently €11.30 per hour.

The  Council has taken a reference pay period during the cognisable period in accordance with S.24 of the NMW Act 2000 (within the six-month period prior to the submission of the complaint).

 Our calculation is made in accordance with Section 20 of the NMW Act 2000

During the reference period the complainant’s hourly rate was calculated as follows:

Basic Pay (exclusive of all additional differentials and allowances)  78 hours. €1,294.32. This results in a calculation of €16.59 per hour.

The Council’s position is that as per the terms of the NMW Act 2000, it is fully compliant regarding the complainant’s hourly rate of pay. His hourly rate of pay is in excess of the national minimum wage which is currently €11.30.

His hourly rate of pay is as per the reference period €16.59/hour which is €5.29/hour in excess of the national minimum wage of €11.30  For this reason, the respondent asks that the complaint be dismissed.

While the complaint was listed as being under the National Minimum Wage Act and was referred to as such in all pre-hearing notices, this appeared to come as something of a surprise to the complainant at the start of the hearing.

It seems that he understood the purpose of the hearing as being to determine a pay claim based on relativities with workers in the private sector doing similar work to that carried out by him in a local authority.

It is, to put it mildly, extraordinary that a worker who has been employed in a local authority since 1979, and is a member of a trade union, could believe that it was possible to detach himself from the local authority and general public service collective bargaining and pay determination processes, and pursue an individual pay claim on his own account.

But this is what he did believe and it is entirely misconceived.

By way of background, the complainant’s initial complaint form received on July 11th, 2023, failed to select any legislation under which he wished to proceed.

On  being invited to clarify his complaint, on a second form, submitted on July 28th he clearly selected that part of the form under ‘Pay’ relating to the National Minimum Wage. While at the hearing he professed a degree of confusion about the form he had actually gone further in filling it out, and, in response to a question elsewhere on the form as to the most recent incident of a failure to pay him the minimum wage he specified July 17th, 2023.

So, this cannot be explained as a minor error.  The complainant made a very deliberate choice of the legislation under which he wished to proceed.

It does not end there. On August 11th, 2023, the complainant received a letter from the WRC which contained  the following.

Dear Mr. Doyle,

I acknowledge receipt of the above complaint/dispute received by the Workplace Relations Commission on 11/07/2023.  A copy of your complaint/dispute has been forwarded to the Respondent. If you submitted any complaints for inspection, they will be handled by the Inspection Services who will contact you directly.

You will see from this letter that the WRC has generated specific complaints from the contents of the selections made in your submitted complaint form. Please check that the specific complaints stated above reflect all the issues you wish to raise with the WRC. Please alert the WRC if there are issues you have raised but for which a specific complaint has not been generated.

(Underlining added.)

He did not reply or take any steps to correct the original referral.

Given all of this, there can be no possible suggestion that he was not aware of the nature of the complaint before the hearing. The legislation under which his complaint would be heard was also specified in the notice of the hearing sent to his representative on November 7th,  2023.

So, I find that the complainant specifically and knowingly referred a complaint under the National Minimum Wage Act, and ought to have been clear about that.

And yet he persisted, indifferent to the waste of resources that would result, with an entirely misconceived and vexatious complaint which he must have known from all his time as a public sector worker and a trade union member would be impossible to progress.

In any event, the hearing had no jurisdiction to do other than hear a complaint under the minimum wage legislation and the respondent was easily able to demonstrate that the complainant’s wages at €16.59 per hour are €5.29 per hour in excess of the national minimum wage of €11.30. His total gross weekly pay , including allowances was €1030.86 per week.

The respondent had set out a full statement of his wages and allowances in a letter of May 23rd, 2023, so he knew very well that his remuneration was well in excess of the minimum wage.

The complaint is therefore, not well founded.

For the reasons set out above Complaint CA-00057667 is not well founded.

Minimum Wage.