Complainant

Respondent

Parties

Tatyanne  De Oliveira Margon Maciel

LCMN Catering Limited  

Representatives

Self-Represented

Self-Represented

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-00059010-001

25/09/2023

The Complainant commenced employment with the Respondent on 20th June 2023. The Complainant’s employment was brief, with the same being terminated on 14th August 2023. The Complainant’s rate of pay and weekly working hours were the subject matter of the hearing.

The Complainant referred the present complaint to the Commission on 25th September 2023. Herein, the Complainant alleged that the Respondent had failed to pay her for each hour worked and that her total pay fell well below the national minimum wage. By response, the Respondent stated that he had difficulties with setting up the Complainant on his payroll system as she did not, at that time, have a valid PPS number. He submitted that once that same was provided, he was willing to discharge all outstanding wages.

A hearing in relation to this matter was convened for, and finalised on, 4th December 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing.

At the outset of the hearing, the Adjudicator raised a preliminary point as to jurisdiction.

At the outset of the hearing, the Adjudicator raised the issue of the Complainant’s compliance with the procedural steps outlined in the impleaded Act. In particular a query was raised as to whether the Complainant complied with the notification requirements set out in Section 24.

In this regard, Section 24 of the Act provides that,

“(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 [adjudication officer] may allow) has not elapsed since that statement was obtained or time elapsed, as the case may be”

Section 23 of the Act provides that,

“(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.

(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance with section 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the request would be frivolous or vexatious.

(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.

(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 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.

(5) A statement under subsection (4) shall be signed and dated by or on behalf of the employer and a copy shall be kept by the employer for a period of 15 months beginning on the date on which the statement was given by the employee.”

Having regard to the foregoing, it is clear that Section 24 mandates that the Complainant must obtain a statement in accordance with Section 23 in order to pursue a claim under the Act. During the hearing the Complainant, when asked directly, confirmed that he had not sought such a statement from the Respondent.

In the matter of Mansion House Ltd v Izquierdo MWD043, the Labour Court held that,

“…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 claimant’s right to re-enter the same complaint having complied with the said section…”.

Having regard to the foregoing, I find that I do not have jurisdiction to hear the present complaint. Notwithstanding the same, I note that the Respondent has undertaken to contact the Complainant directly in an effort to discharge all sums due and owing to her.

I find that I do not have jurisdiction to hear the complaint. As a consequence of the same, I find that the compliant is not well-founded.

National Minimum Wage, Jurisdiction, Section 24