INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000
JOSEPH FLYNN T/A JOSEPH FLYNN SITE EXCAVATIONS
- AND -
(REPRESENTED BY POLISH CONSULTANCY ENTERPRISE)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Ms Ni Mhurchu
1. Complaint that Rights Commissioner's Decision r-075012-MW-09/TB has not been implemented.
2. The worker referred his case to the Court on the 24th August, 2009, in accordance with Section 31(1) of the Minimum Wage Act, 2000. The following is the Court's determination:
The Complainant worked for the Respondent from 16th February 2006 until 23rd January 2009. He submitted that as he worked between 52 and 56 hours per week and was paid between €366.00 and €416.00 per week, that his employer failed to pay him his statutory entitlement under the National Minimum Wage Act, 2000 (the Act).
In accordance with Section 23 of the Act, the Complainant sought a written statement of his average hourly earnings from the Respondent on 2nd March 2009. The Respondent failed to provide the statement. The Complainant made his claim under the Act in January 2009.
The Respondent denied that the Complainant was not paid the correct rate under the Act. She told the Court that the Complainant worked:
•an average of 43.88 hours per week in 2006, he was paid €379.57 per week, therefore his hourly rates of pay was €8.65
•an average of 44.84 hours per week in 2007, he was paid €387.94 per week, therefore his hourly rates of pay was €8.65
•an average of 49.59 hours per week in 2008, he was paid €429.00 per week, therefore his hourly rates of pay was €8.65 in line with the statutory requirement.
The Respondent produced substantial records for the Court’s consideration giving details of hours worked and copies of pay slips.
The Court has investigated the Tachograph and Eurotrak records, as well as pay slips to establish an hourly rate of pay for each week and is satisfied that the Complainant was paid in accordance with the Act up to January 2008. The Complainant’s hours of work varied considerably from January 2008 to 26 November 2008, he was on lay off for December 2008 and his employment terminated on 23rd January 2009 (no records were submitted for January 2009).
Having examined the records for the period the Court finds there was a breach of the Act and the Complainant was underpaid by a total amount of €925.23. The Complainant did not submit a claim to the Court for expenses incurred in connection with the dispute.
Pursuant to Section 29(1) of the Act the following decision of the Court is substituted for the decision of the Rights Commissioner:
- The Court determines that the Respondent must pay the sum of €925.23 in respect of his claim under the National Minimum Wage Act, 2000 within six weeks of the date of this Determination.
The Court so determines.
Signed on behalf of the Labour Court
29th January, 2010______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.