MWD194

FULL RECOMMENDATION MWA/18/5 DETERMINATION NO. MWD194 ADJ-00009456 CA-00012420-001/006 SECTION 27 (1), NATIONAL MINIMUM WAGE ACT, 2000 AND 2015 PARTIES : O' LEARY INTERNATIONAL UNLIMITED COMPANY (REPRESENTED BY RICHARD GROGAN & ASSOCIATES) - AND - MARIUS ROCA (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Doyle Worker Member: Mr McCarthy

SUBJECT:
1. Appeal of Adjudication Officer Decision No(s). ADJ-00009456 CA-00012420-001/006.


BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 18 September 2018. A Labour Court hearing took place on 21 November 2019. The following is the Determination of the Court:-

DETERMINATION :

This is an appeal by O’ Leary International Unlimited Company against an Adjudication Officer’s Decision ADJ-00009456 given under the National Minimum Wage Act 2000 (the Act) in a claim by Marius Roca that he was not paid the minimum wage. The Adjudication Officer found the complaint to be well founded.

In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Marius Roca is referred to as the Complainant and O’ Leary International Unlimited Company is referred to as the Respondent.

Complainant’s case

The Complainant commenced employment with the Respondent in 2011 as an International HGV Driver. On the 8^th September 2014 the Respondent provided him with a written statement of terms and conditions of employment. Under the heading remuneration the contract stated that he would receive a minimum daily payment of no less than €106 less applicable revenue deductions for days worked. It went on to say that the basic rate of pay would be no less than €8.65 per hour worked. The last section of the remuneration paragraph noted section 23 of the Act and stated that for the purpose of the Act the calculation period will be 4 calendar weeks starting on the first Monday of each calendar year.

On the 27^th April 2017, the Complainant’s representative sent an email to the Hr Manager which included a request under section 23 for a written statement of the average hourly rate. The email identified five issues as follows;

• “1) that the minimum wage was not being paid for all hours worked, 2) that minimum was not paid in 2016 or previously, 3) that he is a mobile worker and entitled to be paid for all time work from start to finish 4)a statement of subsistence pay that applied last year and this year and 5) ….formally requesting as provided for under the Minimum Wage Act 2000 a written statement of their average hourly rate. The reference period to be applied is Week 1 Week 2 Week 3 and Week 4 for October 2016 ……”

An initial response from the Respondent was received on the 28^th April 2017. However, the table that was supplied did not meet the requirements of the Act and further correspondence ensued. The representative for the Complainant sent a further email on the 19^th May 2017 attaching a signed request from each of the drivers she was representing at that time. The signed letter was in the same vein as the email of the 27^th April 2017. The covering email that the representative sent on the 19^th May 2017 set out that the responses to-date had not complied with the requirements of the Act and set out the details of what the Act provided for. The Complainant drew the Courts attention to Labour Court Determination number MWD146 Victors v O’ Leary International Ltd where the Court set out what constituted “working hours” as defined by the Act to mean and how hours should be calculated where the rate of pay is fixed by reference to a period other than an “hour”.

It was the Complainant’s submission that he had not been paid the minimum wage since he commenced work in 2011. The Complainant submitted a breakdown of the figures for each year showing that based on a 48hour week there was a total wage arrears of € 9,785.80. The Respondent in response to a question from the Court confirmed that they did not dispute the figures being put submitted to the Court by the Complainant’s representative.

Respondent’s case

It is the Respondent’s case that the Complainant’s case must fail as the Complainant did not comply with section 24 (2) (a) (i) of the Act. It is the Respondent’s submission that the emails sent by the Complainant’s representative and the letter signed by the Complainant were not valid requests under the Act. Section 24 (2) (a) (i) requires that an employee obtain under section 23 of the Act a statement of his or her average hourly rate of pay in respect of the relevant pay reference period. In this case the reference period set out by the Respondent in the terms and conditions of employment is “4 calendar weeks starting on the first Monday of each calendar year”.

The request by the Complainant covered by this claim referred to “Week 1 Week 2 Week 3 and Week 4 of October 2016 which is not a valid pay reference period for the purpose of the Act. It is the Respondent’s submission that that request was for four separate weekly periods whereas the Respondents reference period incompliance with section 10 of the Act is as stated in the terms of employment four calendar weeks. The Respondent does not dispute the fact that the emails and letters made reference to a request under section 23 of the Act. Nor do they dispute that they responded to the emails and letters and that they provided information requested.

It was their submission that they were not under any obligation to advise the Complainant that he had incorrectly cited the reference period nor could the fact that they had engaged with the Complainant and his representative on foot of the correspondence be taken to mean that they had accepted that it was a valid request. It was the Respondent’s submission that they were entitled to resile from their position of engaging with the Complainant and his representative on foot of the emails and letters at any stage and to assert that it was not a valid request.

The second submission made by the Respondent is that the Court does not have jurisdiction to hear the case. The Respondent drew the Courts attention to section 24(2) (of the Act which states;

• The Director General of the Workplace Relations Commission (WRC) 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)…..

  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)….

It is the Respondent’s submission that by letter dated 26^th January 2016 the Labour Inspectorate of the WRC wrote to the Respondent advising that it proposed to carry out an inspection of the Respondents employee and wages record on the 18^th February to ascertain whether the Respondent had complied with its obligations pursuant to the National Minimum Wage Act 2000 and a number of other statutory provisions. The inspection was carried out on the 3^rd of March 2016. By letter dated 22^nd March 2016 the Inspector wrote to the Respondent identifying a list of contraventions of statutory entitlements including breaches of the Minimum Wage Act 2000 that had been identified during the inspection and that required rectification. It is the Respondent’s submission that as it had been subject to an Inspection in relation to the Act, then, in accordance with section 24 (2) (b)(i) the Court does not have jurisdiction to hear the case.

Discussion

The first issue for consideration is whether or not a valid reference period was identified by the Complainant when he made his request under section 23 of the Act.

• Section 2. of the Act states;

  —(1) In this Act, unless the context otherwise requires

  “pay reference period”, in relation to an employee, means the period selected under section 10 by his or her employer;

  Section 10 defines a pay reference period as

  —An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month.

  Section 23 Employee entitled to statement of average hourly rate of pay for pay reference period.

  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.

In the case to hand the Respondent had set out in the terms and conditions of employment that the reference period will be four calendar weeks staring on the first Monday of each calendar year. This reference period is in line with the requirements of the Act in that it does not exceed one calendar month. The Complainant in his request identified the reference period to be applied as Week 1 Week 2 Week 3 and Week 4 for October 2016. This period does not exceed one calendar month either. However, the Respondent appears to be relying on the fact that the Complainant did not formulate his claim in the exact same format as set out in the terms of employment as a basis for now declaring that it was not a valid reference period. One of the purposes of the Act as set out in the long title is to ensure employees are paid at rate not less than the minimum hourly rate set by the legislation and that has to underpin the Court’s application of the Act. It is the view of the Court that the Complainant in his request identified four calendar weeks as required by the Act even if he identified them differently to the manner in which the Respondent believed they should have been identified. The Court’s view on this is supported by the fact that the Respondent on receipt of the request treated it as a valid request and engaged with the Respondent’s representative on that basis. The Court notes the Respondent’s contention that the fact they engaged with the Complainant as if it were a valid request and at no stage put the Complainant on notice of the fact that they did not believe that a valid reference period had been identified does not prevent them from resiling from that position at a later stage. No credible arguments were put forward by the Respondent in support of this contention. The Court finds that a valid reference period was identified by the Complainant.

The second issue that falls to be considered arises under section 24 (2) (b) (i) which states

• 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,

  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 .

It is the Respondent’s submission that as it was investigated by an Inspector from the WRC, section 24 (2) (b) (1) means the Adjudication Officer did not have jurisdiction to hear the case. However, section 24 (2) (b) (i) references an investigation by an inspector under section 33 or 34 of the Act.

• Section 33 was repealed and section 34 states:

  34.—(1) Where an employee alleges that his or her employer has failed to remunerate the employee to an extent required in accordance with this Act, the employee or the employee’s representative with the consent of the employee, may request an inspector to investigate the allegation.

  (2) An inspector may, on the request or on behalf of an employee under subsection (1), or of the inspector’s own motion if the inspector believes that an under-payment of pay to an employee has been made, investigate the allegation or matter and, where the investigation is on the request or behalf of an employee, advise the employee of the outcome of the investigation.

It was accepted by the Respondent that the inspection by an inspector from the WRC that occurred was not at the request of the Complainant but was instigated by the WRC inspectorate. It is clear to the Court that section 24 of the Act has to be read in conjunction with section 34 (1) and (2). The Act clearly sets out that the investigation must have been instigated by the Complainant or his representative and be in respect of the same alleged under-payment. In this case in hand the alleged underpayment was part of the Inspector’s investigation. The Respondent confirmed to thee Court that it accepted that the Complainant had not caused the inspection to occur and that this alleged underpayment was not the reason for the inspector’s investigation. On that basis the Court finds that section 24 (2) (b) (i) does not apply in this case.

The Respondent made no submission on the substantive element of the case and accepted the arrears figures put forward by the Union.

Determination

The Court determines that the Complainant was underpaid a total of €9,785.80. for the relevant period and accordingly requires the Respondent to pay the complainant that amount in respect of his claim under the National Minimum Wages Act 2000 within six weeks of the date of this Determination.

The appeal fails. The decision of the Adjudication Officer is varied accordingly. The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
TH ______________________
17 December 2019 Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.