Complainant

Respondent

Parties

Francesco  Serao

Crystal Valet Centre Ltd

Representatives

Orazio Grosso,  Grosso & Maldonado Solicitors

 Self-Represented

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-00049857-001

25/04/2022

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

CA-00049857-003

25/04/2022

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

CA-00049857-006

25/04/2022

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-00049857-007

25/04/2022

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

CA-00049857-008

25/04/2022

The Complainant filed his complaints with the Workplace Relations Commission on 25 April 2022.

At the hearing the Complainant swore an Affirmation. A witness, Mr Mattio Barison also swore an affirmation.

Two witnesses gave evidence on behalf of the Respondent, Mr Lally Craughwell, Managing Director and Mr Cathal Melly, Manager.

Two interpreters were present, one on each day of the hearing, and both swore an Affirmation.

Both parties availed of the opportunity to cross examine.

CA-00049857-001

The Respondent stated in evidence that the Complainant was paid €10.20 per hour as per the payslip submitted.  

CA-00049857-003

It was the Respondent’s evidence that there was a delay in paying the Complainant due to the fact he didn’t have a PPS number as he was new to working in Ireland. The Respondent provided bank statements to show payment was made to the Complainant.

CA-00049857-006

The Respondent presented a contract of employment signed, by which they say, was the Complainant on 2 October 2021.

CA-00049857-007

It was the Respondent’s evidence that they did keep the required records and had been subject to an inspection.  They confirmed the Complainant worked in the one location and was a Valet and did not drive heavy vehicles.

CA-00049857-008

The Respondent stated in its evidence that a contract of employment was given to the Complainant.  

It was flagged to the parties throughout the hearing that the jurisdiction of the Workplace Relations Commission is limited to the complaints set out in the Complaint Form, in this case received on 25 April 2022. There was an abundance of medical documentation along with evidence related to an alleged workplace injury which cannot been considered for the purpose of this decision.

CA-00049857-001

Section 23 of the National Minimum Wage Act, 2000 requires a statement of the employee’s average hourly rate of pay to be sought.

23.—(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.

Section 23 (4) sets out the time period the Respondent has to respond:-

(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 F25[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.

Section 24 (2) explicitly requires that an employee request a statement of the average hourly rate of pay before the matter can be referred to an Adjudication Officer:-

“(2) A dispute cannot be referred to or dealt with by a rights commissioner—

(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 .”

The Complaint submitted the helpful Labour Court’s decision on Section 23 (1) in Mansion House Ltd t/a Fado Restaurant v Jose Izquierdo, MWD043 where the situation of Section 23 is clarified:-

“…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…”

The Complainant wrote to the Respondent seeking a statement of his hourly rate for the period from 22 September to 9 October 2021 by registered letter dated 25 April 2022, allowing the Respondent 7 days to respond. On the same day, 25 April 2022, the Complaint Form was received by the Workplace Relations Commission seeking adjudication of a complaint stating the Complainant was not paid the minimum wage. It is also noted from the Complaint Form that the Complainant answers no to the question as to whether he sought a statement from his employer as to the average hourly rate of pay for the pay reference period.

Where the Complainant has failed to adhere to the pre-requisite condition that a statement of his average hourly rate of pay is sought pursuant to Section 23 and Section 24 of the National Minimum Wage Act, 2000, I must decline jurisdiction as it is not properly before me.

CA-00049857-003

It was the Complainant’s evidence that he ought to have received his wages on 11 October 2021 from the Respondent. He gave evidence that he had to beg the Respondent for his wages after his accident on 9 October 2021.

The Complaint Form was received on 25 April 2022 which is outside the 6-month period prescribed in Section 41(6) of the Workplace Relations Commission:-

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Consequently, I find the complaint is not well founded.

CA-00049857-006

Section 3 (1) provides the onus is on the Respondent to furnish a contract of employment to the employee:-

3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment              

It was the Complainant’ s evidence that the signature on the contract presented at the hearing was not his and he had never received a contract of employment. On the balance of probabilities and where the Respondent could not provide evidence of providing the Complainant with this contract I find the complaint is well founded.

Redress

Section 7 (2) (d) provides for compensation:-

(d) order the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all 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 ,

I am awarding the Complainant the sum of €1,632 being 4 weeks renumeration based on the average hours worked.

CA-00049857-007

Regulation 3 of the S.I. No. 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 has  a specific jurisdiction:-

“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 Regulation or the AETR applies.”

There is no evidence before me that the Complainant was employed as a mobile worker or a self-employed driver participating in road transport activities.

Consequently, I find the complaint is not well founded.

CA-00049857-008

This matter has been adjudicated on under CA-00049857-006.

CA-00049857-001

I do not have jurisdiction to decide on this complaint.

CA-00049857-003

I find the complaint is not well founded.

CA-00049857-006

I am awarding the Complainant the sum of €1,632 being 4 weeks renumeration based on the average hours worked.

CA-00049857-007

I find the complaint is not well founded.

CA-00049857-008

I do not find this complaint to be well founded.

Minimum wage-payment of wages – contract of employment