Complainant

Respondent

Parties

Nazia  Kashif

Vela Restaurant

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00052076-001

03/08/2022

The Complainant worked for the Respondent restaurant for a period of 5 months in 2022.

She resigned on the 2nd of May 2022.

On the 3rd of August the Complainant submitted a complaint under the minimum wage act.

Ms Kashif attended the hearing and provided evidence under oath.

She began working for the Respondent in February 2022 as she needed another job for additional income.

She was not given a clear hourly rate but a €90 per shift rate. The hours could different, but they frequently went on into the night.

The Complainant is a single mother and had childcare responsibilities, but the Respondent didn’t care about this. On a number of occasions, they kept her working past her bus schedule and she had difficulty getting home.   

The Complainant was also working as a security guard Monday to Wednesday. As she started working for the Respondent her working family payment was stopped.

She was not paid regularly and was owed wages upon her resignation which were not paid.

The Respondent provided written submissions and Mr Bocchini the General Manager attended the hearing.

The Complainant was working as a security guard while she was working in the restaurant. At first she would not provide her PPSN. As a result she was being emergency taxed.

The Respondent tried to assist her with cash payments while her tax was being sorted. This resulted in overpayments to the Complainant.

Their rosters demonstrate that she was being paid properly.

The Respondent didn’t become aware of minimum wage complaint until it was referred to the WRC.

The Minimum Wage Act provides as follows:

24 [(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,

or

(b) where, in respect of the same alleged under-payment, the employer is or has been—

(i) the subject of investigation by an inspector under section 33 or 34, or

(ii) prosecuted for an offence under section 35.

As outlined above, the minimum wage act contains an additional hurdle for a Complainant seeking redress. They must first seek a Section 23 statement from the employer. If they have not done this an adjudication officer has no jurisdiction to hear the case.

On review of both parities evidence, I am satisfied there was an active dispute about wages going on before the Complainant referred this complaint to the WRC. However, there was no request under section 23 or of such similarity to section 23 that I could have proceeded to consider the matter further.

As such I have no jurisdiction to consider the matter.

I find that the complaint is not well founded.