MWD204

1. Appeal of Adjudication Officer Decision No(S). ADJ-00020515 CA-00027030-001, CA-00027052-001

BACKGROUND:

2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court under the National Minimum Wage Act, 2000 on 3 September 2019. A Labour Court hearing took place on 16 June 2020. The following is the Court's Determination: -


DETERMINATION :

This is an appeal by William A. Quick (the Complainant) against an Adjudication Officer’s Decision given under the National Minimum Wage Act 2000 (the Act) in a complaint that MOGI S.A (the Respondent) was in breach of the Act in that he was not paid the National Minimum Wage then in being under the Act during the course of his employment with the Respondent from 24^th August 2018 to 23^rd February 2019. The Complainant did not attend the hearing of the Adjudication Officer and the Adjudication did not uphold the complaint.

The Respondent raised a number of matters which were described as preliminary to the substantive matter including whether the Respondent was wrongly named, whether the Complainant was an employee within the meaning of the Act and whether the Court held jurisdiction in the matter arising from the Complainant’s failure to request a statement in writing of his average hourly rate of pay in respect of the relevant pay reference period as provided for in the Act at Section 23.

The Court decided to consider its jurisdiction arising from the provisions of the Act at Section 24(2) as a preliminary matter.

Position of the Complainant on the preliminary matter.

The Complainant submitted that while he did not seek a statement as provided for under Section 23 of the Act, he did have a contract of employment dating from the commencement of his employment which stated his rate of pay.

Position of the Respondent on the preliminary matter

The Respondent submitted that the Complainant did not make a request for a statement as provided for in Section 23 of the Act and that the agreement dating from August 2018 was not a contract of employment and in any event could not be found to amount to a written statement as described in the Act at Section 23.

The Law

Section 23 of the Act provides in relevant part 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.

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

• (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) (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,

Decision of the Court

Having regard to the provisions of the Act at Section 24(2) and noting that the Complainant has not sought or received a statement under Section 23; the Court concludes that it must decline jurisdiction in this matter.

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
NJ	______________________
18 June 2020	Chairman