Complainant

Respondent

Anonymised Parties

A Delivery Driver

Broz Asset Private Limited T/A Mix Spice 3 in 1

Representatives

Migrant Rights Centre Ireland

 No Appearance

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-00063791-001

28/05/2024

The Complainant’s complaint was received by the Workplace Relations Commission on 28 May 2024. The Complainant gave evidence on Oath and was represented at the hearing. Detailed submissions were received from the Complainant in advance of the hearing.

The Respondent did not appear at the hearing to present evidence.

This complaint was heard along with ADJ-00051252.

Anonymisation

Due to the vulnerability of the Complainant in this case, a decision has been made to anonymise the Complainant’s name. Where there was no appearance on behalf of the Respondent, no submission was received on its behalf and therefore, it has been named.

Preliminary Issue

The Complainant sought an extension of time on the basis that he was especially vulnerable. It was submitted that, as the holder of an employment permit, he was not permitted to change employers and was entirely dependent on the Respondent for his accommodation, immigration status, and livelihood in Ireland. He also stated that he was subjected to threatening behaviour by the Respondent. When he was dismissed from his employment, he was under the care of his doctor and was obliged to apply for a valid permit under the Reactivation Employment Permit Scheme.

Substantive Complaint

It was the Complainant’s evidence that he worked for the Respondent from 16 August 2021 until his dismissal on 18 October 2023. While he was listed as being employed as a Chef de Partie , he worked as a delivery driver and has a phone shop assistant. He stated that he held a work permit with the Respondent listed as his employer.

He worked in two locations: Solo Mobile in Limerick City, where he worked from 8:00 AM to 5:30/6:00 PM six days a week. After finishing at the mobile shop, he continued working as a delivery driver for Mixed Spice 3 in 1 in Limerick City from 6:00 PM until 2:30/3:00 AM, seven days a week. The Complainant also stated that he lived at the location of the mobile phone shop.

From 31 August 2021 until 15 April 2023, the Complainant testified that, when he was not working or living at Solo Mobile, he worked in another of the Respondent’s mobile phone shops, Tech More Gadgets, located in Templemore, Co. Tipperary. There, he worked six days a week from 9:00 AM to 7:30 PM as a shop attendant and mobile phone technician.

On occasion, he also worked Sundays at a fourth business owned by the Respondent, Five Star Kebab and Pizza in Castleconnell, Co. Limerick, from 7:00 PM to 12:00 AM.

The Complainant stated that he did not receive wages from the Respondent. Instead, the Respondent provided him with accommodation, one free meal per day, and a car with insurance. He described having to "beg for money" from the Respondent and being given amounts ranging from €10 to €50 on an irregular basis. It was his evidence he did not received payment of wages from the Respondent.

In addition, the Respondent sent an average of €410 per month directly to the Complainant’s family in Pakistan. The Complainant gave evidence that, throughout his employment, he was extremely fearful for both himself and his family and felt intimidated by the Respondent due to the director’s connections to the police and politicians in his home city in Pakistan.

During a trip to Pakistan in 2023, the Complainant described once again begging his employer for his wages. At the time, he had travelled to visit his ill father and to attend his own engagement. It was his evidence that he was given three cheques, paid in Rupees, totalling approximately €2,900.

By letter dated 12 April 2024, the Complainant requested a Section 23 statement outlining his average hourly rate of pay. No response was received, and he subsequently submitted his complaint form to the WRC.

The Complainant also provided a detailed breakdown of the hours he worked in 2021, 2022, and 2023, as well as the locations where he worked. In summary, he submitted the following data:

·        2021 – He worked up to 115.5 hours per week and was owed €14,433 under the National Minimum Wage Act 2000.

·        2022 – He worked up to 68 hours per week and was owed €36,760.50 under the National Minimum Wage Act 2000.

·        2023 – He worked up to 60 hours per week and was owed €19,530.92 under the National Minimum Wage Act 2000.

In total, the Complainant submitted that, due to the Respondent’s failure to meet its obligations under the National Minimum Wage Act 2000, and taking into account the payments that were made, he submitted he owed €56,504.42.

In terms of redress, it was submitted that Section 26(1) of Act provides that where a complaint is upheld, the Adjudication Officer may award redress of arrears of pay in respect of “the period to which the dispute relates.”

The Complainant further relied upon the Labour Court determination in Sue Ryder Foundation Ireland Ltd v Maureen Meenagh MWD051 which was subsequently applied in A Trainee Solicitor vs Law Firm ADJ-00020327 in and upheld by the Labour Court in Imtiaz Ahmed Ranjha Sky Solicitors v Imtiaz Khan MWD212 and award the Complainant redress of arrears for the entire period to which the dispute relates to.

I am satisfied that the Respondent was on notice of the complaint.

After waiting a reasonable period of time for the Respondent to attend at the hearing, it proceeded with the Complainant’s evidence.

Preliminary Matter

The Complainant made an application for an extension of time of the at the outset of the hearing.  I find the complaint is within time limits provided for in Section 24 (2) of the Act where it was dated 12 April 2024 and the complaint was received by the Workplace Relations Commission on 28 May 2024, within the six-month period.

In respect of the cognisable period, having regard to the submissions made, I find the cognisable period for a claim made under the National Minimum Wage Act, having regard to the Workplace Relations Commission decision and Labour Court determination in A Trainee Solicitor vs Law Firm ADJ-00020327 and in Imtiaz Ahmed Ranjha Sky Solicitors v Imtiaz Khan MWD212, I find the cognisable period in this case is the 16 August 2021 to 31 October 2023.

Substantive Complaint

Section 8 (1) of the Act provides for an employee’s entitlement to payment not less than the minimum wage:-

8.—(1) For the purpose of determining under this Act whether an employee is being paid not less than the minimum hourly rate of pay to which he or she is entitled in accordance with this Act, but subject to section 9 , “working hours”, in relation to an employee in a pay reference period, means—

(a) the hours (including a part of an hour) of work of the employee as determined in accordance with—

(i) his or her contract of employment,

(ii) any collective agreement that relates to the employee,

(iii) any Registered Employment Agreement that relates to the employee,

(iv) any Employment Regulation Order that relates to the employee,

(v) any statement provided by the employee's employer to the employee in accordance with section 3 (1) of the Terms of Employment (Information) Act, 1994 ,

(vi) any notification by the employee's employer to the employee under section 17 of the Organisation of Working Time Act, 1997 ,

(vii) section 18 of the Organisation of Working Time Act, 1997 , or

(viii) any other agreement made between the employee and his or her employer or their representatives that includes a provision in relation to hours of work,

or

(b) the total hours during which the employee carries out or performs the activities of his or her work at the employee's place of employment or is required by his or her employer to be available for work there and is paid as if the employee is carrying out or performing the activities of his or her work,

whichever, in any case, is the greater number of hours of work

(2) “Working hours” under this section shall include-

(a) overtime,

(b) time spent travelling on official business, and

(c) time spent on training or on a training course or course of study authorised by the employer, within the workplace or elsewhere, during normal working hours,

but shall not include—

(i) time spent absent from work on annual leave, sick leave, protective leave, adoptive leave, parental leave, carer’s leave under the Carer’s Leave Act, 2001, while laid-off, on strike or on ‘lock-out’, or time for which the employee is paid in lieu of notice, or,

(ii) time spent absent from work on annual leave, sick leave, protective leave, adoptive leave, parental leave, while laid-off, on strike or on “lock-out”, or time for which the employee is paid in lieu of notice, or

(iii) time spent on travelling between an employee's place of residence and place of work and back.”

The complaint was not disputed by the Respondent where it failed to attend and provide contradictory evidence.

The Complainant’s evidence is accepted that worked between 56 - 60 hours per week every week during that period.

It was submitted the minimum hour wage in 2021 was €11.30, €10.50 in 2022 and €10.20 in 2021.

I find the Complainant’s claim pursuant to the National Minimum Wage Act 2000 for underpayment to be well founded.

I find the Complainant’s claim pursuant to the National Minimum Wage Act 2000 for underpayment to be well founded.

Section 26 (2) of the 2000 Act (as amended by the Workplace Relations Act 2015) provides for the modes of redress:-

“26. (1) A decision of an adjudication officer in relation to a dispute in respect of the entitlements of an employee under this Act referred to the adjudication officer under section 41 of the Workplace Relations Act 2015 may contain—

(a) a direction to the employer to pay to the employee—

(i) an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates, and

(ii) reasonable expenses of the employee in connection with the dispute,

(b) a requirement that the employer rectify, within a specified time (not being later than 42 days after the date the decision is communicated to the employer) or in a specified manner, any matter, including the payment of any amount, in respect of which the employer is in contravention of this Act,

both such direction and such requirement, as the adjudication officer considers appropriate.”

In the circumstances where the Complainant is no longer an employee of the Respondent, Section 26 (a) (i) and (ii) of the 2000 Act are the most appropriate redress.

I am awarding the Complainant the sum of €56,504.42 in arrears being the difference between any amount paid by the Respondent to the Complainant and the national minimum hourly wage.

I am further awarding the Complainant €1,000 towards reasonable expenses incurred in connection with this dispute.

National Minimum Wage