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FULL RECOMMENDATION
SECTION 27 (1), NATIONAL MINIMUM WAGE ACT, 2000 AND 2015 PARTIES : MACREA'S TAKEAWAY LIMITED
- AND - MR IOAN ALIN ANDREI (REPRESENTED BY MR MARIUS MAROSAN) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer Decision No(S). ADJ-00014867 CA-00019331-006.
BACKGROUND:
2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court under the National Minimum Wage Act, 2000 on 7 March 2019. A Labour Court hearing took place on 11 December 2019. The Employer was not in attendance. The following is the Court's Determination:-
DETERMINATION :
This is an appeal by Ioan Alin Andrei (the Complainant) against an Adjudication Officer’s Decision ADJ-00014867 given under the National Minimum Wage Act 2000 (the Act) in a complaint that Macrea’s Takeaway Limited t/a Macari’s (The Respondent) were in breach of the Act in that he was not paid the minimum wage. The Adjudication officer held that the complaint was not well founded.
Background
The Complainant was employed by the Respondent as a Counter Assistant from 29th June 2017 until his resignation on the 15th February 2018. The Complainant lodged a number of claims under various pieces of legislation with the Workplace Relations Commissions (WRC) on the 21st May 2018. The Adjudication Officer issued the decisions on the 15th February 2019. The Complainant appealed the decisions to the Labour Court on the 7th March 2019. On receipt of submissions from both parties the Court convened a case management hearing on the 20th June 2019. Both parties were represented at the hearing and agreed to make further submissions to the Court on specific issues. Following the case management, the Respondent’s representatives advised the Court that they were coming off record and that all correspondence should go directly to the Respondent.
A date was set for the full hearing of the case. In advance of the hearing date the Respondent advised that they would not be attending the hearing as the company had ceased trading on the 20th May 2018. The Respondent could offer no explanation as to why this had not been brought to the Court’s attention at the case management hearing which they attended with their legal representative. The Respondent on the 30th September 2019 submitted an unsigned copy of abridged Financial statements for the year ended 31st October 2018 showing accumulated losses and advising that the Respondent was insolvent. The Complainant was provided with a copy of the correspondence received from the Respondent and in response informed the Court that they had driven past the Respondent’s premises and it was still operating. The Complainant also submitted a copy of an extract from the Companies Registration Office which did not record the company as having ceased trading. The scheduled hearing took place on the 11th December 2019 and the Respondent did not attend.
Complainant’s case.
It is the Complainant’s submission that he was not paid the minimum wage for the duration of his employment. In his evidence to the Court the Complainant stated that he had requested a statement of average hourly rate for all of his employment on the 10th April 2018 through Whatsapp and by email on the 12th Of April 2018. The Complainant brought the Court’s attention to a copy of the Whatsapp message and the email. The Whatsapp message and email stated: “I would like to get an email stating the average rate of pay per hour for my employment”.
Respondent’s case.
The Respondent in their written submission to the Court denied that the Complainant was not paid the minimum wage at all times and provided specimen payslips with their submission.
The Law
- 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.
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 23 (3) of the Act requires that a request under the Act must be in writing and identify the pay reference period or periods to which it relates. The request by the Complainant did not comply with the requirements of s23(3) in that it did not identify any pay reference period as defined by the Act. Therefore, the request was not a valid request under the Act and his claim must fail.
Determination
The Court for the reasons set out above Determines that the appeal fails. The decision of the Adjudication Officer is upheld. The Court so Determines.
Signed on behalf of the Labour Court
Louise O'Donnell
TH ______________________
7 January 2020 Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.