Complainant

Respondent

Parties

Taylor  Evans

John Golding Ltd. t/a Refrigeration Solutions

Representatives

  Self-represented

Peninsula

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-00060101-001

17/11/2023

The Complainant was employed as a Refrigeration and Air Conditioning Apprentice from 29 August 2022 until 22 December 2023. He contended that, as he was not registered as an apprentice with the Respondent until 3 February 2023, he should have received the national minimum wage for the period between 29 August 2022 and 3 February 2023. The Respondent denies the claim.

Evidence of the Complainant (under affirmation)

The Complainant outlined that he commenced employment on 29 August 2022 as a Refrigeration and Air Conditioning Apprentice. He had previously been employed on an electrical apprenticeship with another employer. The Respondent said to him that his apprenticeship would carry over from that employment to the Respondent, and therefore he was placed on an hourly rate of €9.50. However, it transpired that this apprenticeship could not be carried over as they were two different apprenticeships: one electrical and the other refrigeration and air conditioning. The Complainant was not registered as a Refrigeration and Air Conditioning Apprentice with the Respondent until 3 February 2023. He submitted that he had no idea why it took 6 months for the Respondent to register him as an apprentice. Given he was not registered as an apprentice from 29 August 2022 until 3 February 2023 he should have been on the national minimum wage during that time. The national minimum wage was €10.50 in 2022 and €11.30 from 1 January 2023. It was a requirement of registration as an apprentice to have an eye test completed. The complainant had his eyes tested in December 2022. The Complainant accepted that it could have been January 2023 by the time he had submitted all the forms requested of him by Ms Byrne. The Complainant outlined that he presented his complaint to the Workplace Relations Commission (WRC) on 17 November 2023, and that the reason for the delay in presenting his complaint to the WRC was because he was not aware that he had an entitlement to the national minimum wage for the period that he was not registered as an apprentice. The Complainant submitted that the time frame for the referral of the complaint commenced February 2023, and not August 2022 as submitted by the Respondent.

The Complainant confirmed that he did not request a statement as provided for under s 23 of the Minimum Wage legislation.

Evidence of Ms Byrne (under affirmation)

Ms Byrne outlined that the Complainant had already completed 6 months of an electrical apprenticeship prior to him joining the Respondent and that the Respondent had hoped the Complainant could have had the benefit of that 6 months already done, but SOLAS confirmed in September 2022 that this could not be done as the two apprenticeships were not the same. Therefore the Complainant had to be registered as a new apprentice with the Respondent. This information was relayed to the Complainant at this time. On 7 October 2022 Ms Byrne contacted the complainant requesting a copy of his leaving certificate results; a colour vision test; and a passport photo so she could complete the apprenticeship application. A copy of this communication was opened to the hearing. Ms Byrne verbally asked the Complainant for these documents again at various times; however, the Complainant did not submit the eye test results until December 2022, and the leaving certificate results until January 2023. Once these were received, Ms Byrne completed the apprenticeship registration form and it was signed by the Complainant and co-signed by the Respondent on 24 January 2023. It was then submitted to SOLAS immediately. Ms Byrne told the hearing that the reason the Complainant was paid an apprenticeship rate is that he was registered as an electrical apprentice when he joined the company. All he was entitled to was €7.16, however, the Respondent paid him €9.50 per hour. All over-time hours worked by the Complainant were paid at an amount greater than the national minimum wage.

It was submitted on behalf of the Respondent that the Complainant did not request a statement of his hourly rate of pay in respect of any relevant period and therefore the WRC has no jurisdiction to hear the complaint. The Respondent’s written submission directed the hearing to the Labour Court decision in Masion House Ltd v. Izquierdo (MWD043); Warren Dolan v. Joe Duffy’s BMW (ADJ000-37772); and A Horticultural Operative v. Mushroom Production Company (ADJ000-46636) in support of this proposition. Further, it was submitted on behalf of the Respondent that the complaint is out of time. The complaint relates to the non-payment of the national minimum wage from 29 August 2022 to 3 February 2023. The complaint was not presented to the WRC until 17 November 2023. Section 41(6) of the Workplace Relations Act (2015) requires the referral of a complaint within 6 months beginning on the date of the contravention to which the complaint relates. The hearing was directed to the decision of Hogan J in HSE v. McDermott [2014] IEHC 331. With respect to ‘reasonable cause’ the hearing was directed to Cementation Skanska v. Carrol (DWT0338); the maxim ‘ignorantia juris non excusat’;and various decisons including Galway and Roscommon ETB v. Josephine Kenny (UDD1624).

Section 23(1) of the National Minimum Wage Act 2000 (“the 2000 Act”) provides:

“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 24(2) of the 2000 Act provides:

“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 . . . .”

In Mansion House Ltd v. Izquierdo (MWD043), the Labour Court stated as follows in relation to the jurisdiction of the WRC:

“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 did not request a statement as provided for under s 23. Accordingly, in line with the decision in Mansion House Ltd. I find I do not have jurisdiction to inquire into this complaint.

I decide I do not have jurisdiction to inquire into this complaint.

National Minimum Wage. Jurisdiction.