MWD241

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00041401 (CA-00052456-003)

BACKGROUND:

The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 12 October 2023 in accordance with Section 27(1) of the National Minimum Wage Act, 2000 and 2015. A Labour Court hearing took place on 4 April 2024. The following is the Determination of the Court.

DECISION:

This matter comes before the Court as an appeal of a decision of an Adjudication Officer given under the National Minimum Wage Act, 2000 (the Act) in a complaint made by Cliona Tracey nee Flood (the Complainant) against her former employer Affinity Plus T/a Affinity Plus Home Support Limited Aka Affinity Plus Homecare Limited (the Respondent).

The hearing of the Court

The Complainant and a range of individuals apparently intending to represent the Respondent, were present in the Court room at the commencement of proceedings on the day of the hearing of the Court.

Prior to the commencement of proceedings, the group of people apparently attending to represent the Respondent became aware that the Workplace Relations Commission had issued a ‘correcting order’ amending the name of the employer as carried on the original decision of the Adjudication Officer. The group of people stated that they had no knowledge that a correcting order had been sought by the worker, or that the request had been considered by the adjudication officer or that a correcting order had been made by the Adjudication Officer.

A copy of the correcting order was provided to the group of people. The representative of the group of people then stated that, whereas they had attended the hearing to represent the entity named on the original decision of the Adjudication Officer, they were not representative of the legal entity identified in the corrected decision of the Adjudication Officer. They withdrew from the hearing and withdrew any written submission which had earlier been made to the Court by them.

The Court therefore heard from the worker but did not hear from an employer in the matter.

Relevant law

The Act at Section 23 in relevant part makes provision as follows:

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.

(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.

Section 24 of the Act in relevant part makes provision in relevant part as follows:

Disputes about entitlement to minimum hourly rate of pay.

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,

Summary submission of the Complainant

The Complainant submitted that, across the period of her employment from April to August 2022, on more occasions than not, the Respondent failed to pay to her the statutory minimum wage in being which was €10.50 per hour. In particular, the Respondent failed to take account of the time spent travelling wholly, exclusively and necessarily in performance of a contractual obligation of her employment in the calculation of her wage.

She acknowledged in oral submission that she had not made a request in writing to the Respondent for a written statement of her average hourly rate of pay for any pay reference period falling within the 12-month period immediately preceding the request.

Discussion and conclusion.

The uncontested submission of the Complainant must, in the absence of the Respondent, be taken as an accurate account of the wages she received and the hours she worked while in employment. That account sets out that, when account is taken of all hours worked including time spent travelling during the course of her employment, she was not in receipt of the statutory hourly minimum rate of pay in place at the material time.

The Act however, at Section 23, makes clear that the jurisdiction of the Court is contingent on the Complainant having made a request to the Respondent in writing for a written statement of her average hourly rate of pay for any pay reference period falling within the 12-month period immediately preceding the request.

The Complainant acknowledged to the Court that she made no such request in writing.

In those circumstances, the Court must, having regard to the Act at Section 24(2), conclude that the within complaint cannot succeed.

Decision

Having regard to the provisions of the Act at Section 24(2), and noting that the Complainant has not, in writing, sought a written statement of her average hourly rate of pay for any pay reference period falling within the 12-month period immediately preceding the request, the Court concludes that the within appeal must fail.

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
SOC	______________________
09 May 2024	Chairman

NOTE

Enquiries concerning this Decision should be addressed to Sinéad O'Connor, Court Secretary.