MWD231

1.Appeal of Adjudication Officer Decision No. r-156641-mw-14/EH.

BACKGROUND:

2.The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 20 April 2016 in accordance with Section 27(1) of the National Minimum Wage Act, 2000 and 2015. A Labour Court hearing took place on 4 May 2023. The following is the Determination of the Court.

DETERMINATION:

This is an appeal by Marek Bartosik (the Complainant) against an Adjudication Officer’s Decision r-156641-mw-14 given under the National Minimum Wage Act 2000 (the Act) in a claim that Citi Bus Ltd (the Respondent) failed to pay him the minimum rate of pay. The Adjudication Officer held that the complaint was not well founded.

Background

The Complainant commenced employment with the Respondent on the 24^thMay 2013 and resigned from his position on the 15^thJune 2015.The Complainant submits that within the cognisable period he was not paid the minimum hourly rate of pay. The Respondent denies that the Complainant was not paid at least the minimum hourly rate of pay. The complaint was lodged on the 27th May 2015. The cognisable period for the purpose of the Act is 28^thNovember 2014 to 27^thMay 2015. It was accepted by both parties that the hourly minimum rate of pay during the cognisable period was €8.65. This case is linked to UD/16/31, WTC/16/57 and CD/16/122.

Summary of Complainant’s submission and evidence

Mr Kelly on behalf of the Complainant submitted that he does not believe that he was paid in accordance with Act. By email of the 25 April 2015, he had requested in line with the legislation a breakdown of his pay rate which at that time was €105 per day inclusive of Sunday premium and travel and subsistence. No response to his email of the 25^thApril 2015 was received so he sent a further email on the 21^stMay 2015.

The Complainant in his evidence to the Court stated that it was his position that from the minute he got on the bus to the minute he got off was working time. However, the Respondent was not counting his downtime in Dublin which could be up to four hours as working time. He believed it was working time as he had to look after the money and carry it around with him. He considered this to be evidence of the fact that he was still working during that period. If those hours are taken into account, then he could be working for up to 12 hours a day at arate of €105 which includes Sunday premium and expenses. Under the Act the Sunday premium and subsistence have to be excluded. Therefore, his hourly rate was less than the minimum hourly rate at the time. A number of questions were put to the complainant in cross examination. The Complainant’s response was that the questions were below his level. He stated that the break time was working time because he had the cash. He accepted that on occasions he brought the cash home at night and that he was not saying that was working time.

Summary of Respondent’s submission.

Mr O’Toole on behalf of the Respondent submitted that the Complainant’s scheduled working day on the Ennis Dublin Ennis route is seven Hours. However, when calculating the rate per trip of €105 they stress tested the hourly rate of pay to allow for delays due to traffic, allowing for an 8-hour working day for each Driver. Once the Driver arrives in Dublin, they remove their tachograph and leave the bus. They are officially on a break and not under the control of the employer. They return to the bus at the rostered time and insert their tachograph. The driver is not obliged to hold on to the cash they have collected. They have the option on the way into Dublin off dropping it off and the Complainant has done so on a number of occasions.

The Respondent submits that there is no requirement for them to include breaks when calculating his hourly rate for the purpose of the Act.

Discussion

The Court notes that there is no requirement under the Act to include the Complainant’s unpaid break time when calculating his hourly rate. The Act goes further and specifically excludes from the calculation of working time, hours spent on standby at a place other than the workplace or a place provided by the employer, for the purpose of determining pay within the reference period under this Act. In this case the Complainant was not in standby. He was on a break and free to do whatever he wished during that period.

Determination

The Court finds that no breach of the Act occurred during the relevant period.

The Complainants appeal fails. The Decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
TH	______________________
9 June 2023	Deputy Chairman