FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : HARBOUR HOUSE LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - VYTAUTAS JURKSA DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision R-047158-MW-06/TB
BACKGROUND:
2. The worker was employed as a receptionist/housekeeper by the Company (a Hostel) from 22nd August, 2003, to 9th November, 2006. He claims that he was underpaid as per the National Minimum Wage Act, 2000, (the Act), in that he received €225 for a 48-hour week and €350 for up to a 79-hour week. He claims that he asked his employer orally for information in regard to the minimum wage but did not receive it. The Company maintains that it paid the worker the National Minimum Wage and that income tax and PRSI were correctly deducted.
The worker referred his case to a Rights Commissioner and his decision was as follows:
"As the claimant has not fulfilled the requirements under Section 23 of the Act the Rights Commissioner has no jurisdiction to hear this complaint."
The worker appealed the decision to the Labour Court on the 9th of July, 2007, in accordance with Section 27(1) of the Act. A Labour Court hearing took place on the 13th February, 2008, in Sligo. The following is the Court's determination:
DETERMINATION:
This is a complaint by Mr. Vytautas Jurksa (the Complainant) alleging that his former employer, Harbour Hotel Limited (the Respondent) contravened the National Minimum Wage Act, 2000, (the Act).
The Rights Commissioner found that as the Complainant had not fulfilled the requirements of Section 23 of the Act, he had no jurisdiction to hear the complaint.
- 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.
Section 24 provides that the dispute cannot be referred to a Rights Commissioner unless an employee, or an employer, has complied with Section 23. Section 24(2) states:
(2) A dispute cannot be referred to or dealt with by a rights commissioner—
(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[not relevant]
In this case the Court is satisfied that, by his own admission, the Complainant failed to request a statement in accordance with Section 23(1). In such circumstances, the appropriate course of action is to decline jurisdiction without prejudice to the Complainant’s right to re-enter the same complaint having complied with the said section. It is the Court's view that in normal circumstances a decision dismissing the claim on its merits on the basis of non-compliance with this section alone is not appropriate nor is it warranted by any provision of the Act.
However, since the information which should have been requested by the complainant was before the Court at the hearing of this matter, the Court, in ease of both parties and for the sake of completeness has, on this occasion, decided to examine the claim on its merits.
The claim before the Rights Commissioner was submitted on 8th November, 2006. The Respondent submitted details of rates of pay for the six months covered by the time limit prescribed by Section 27(4) of the Act. The Complainant accepted that there was no contravention of the Act during this period. Furthermore, he told the Court that he did not seek an extension of time pursuant to Section 27(5) of the Act. It appears to the Court, therefore, that there has been no breach of the provisions of the Act on the part of the Respondent.
Determination
There has been no breach of the Act on the part of the Respondent. The Court upholds the decision of the Rights Commissioner and the Complainant’s appeal fails.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th March, 2008______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.