INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr Nash
1. Appeal against Rights Commissioner's Decision No. R-086092-MW-09/RG.
2. The matter before the Court concerns an appeal of a Rights Commissioner's Decision. The Worker claims that he was not paid for the amount of hours he worked and that he was not paid the correct hourly amount as defined under the National Minimum Wage Act, 2000.
The Worker was employed as a Waiter by the Company from the 3rd September 2006 until 6th September, 2009 when the employment ceased.
The Worker referred his complaint to a Rights Commissioner who issued her findings on the 9th March 2010, as follows:
"I declare the complaint well founded. In accordance with Section 26(2) of the Act I order the Employer to pay the Claimant the sum of €14,470.00 being arrears of pay due to the Claimant. This sum to be paid to the Claimant within six weeks of the date of this Decision."
The Worker appealed the Decision to the Labour Court on the 13th April 2010 in accordance with Section 27(1) of the Act on the grounds that the amount due was incorrectly calculated. A Labour Court hearing took place on the 31st August, 2010.
The Employer did not attend the Labour Court hearing.
The Complainant appealed the decision of the Rights Commissioner under the National Minimum Wage Act, 2000, on the basis that the calculation of arrears was incorrectly made.
The Respondent failed to attend the hearing of this appeal before the Labour Court.
Based on the submission of the Appellant and evidence submitted at the hearing the Court has established the position to be as follows:
The Appellant worked with the Respondent from 3rd September 2006 until 6th September 2009. He claimed that for the entire duration of his employment he was paid a lower rate of pay than the national minimum rate of pay. He told the Court that from 3rd September 2006 until 8th November 2008 he worked 65 hours per week and from 9th November 2008 he worked 45 hours per week. He gave evidence to the Court that from 3rd September 2006 he was paid €150.00 per week; from 8th January 2007 he was paid €167.00 per week; from 3rd July 2007 he was paid €173.00 per week and from 11th February 2008 he was paid €246.00 per week.
The Appellant produced payslips dated 3rd January 2007 which showed that he was paid €150.00 per week and from 9th January 2007 until 3rd July 2007 when he was paid €167.00. He produced payslips for the period from 10th July 2007 until 11th September 2007 which showed that he was paid €173.00 per week and from 17th September 2007 until 25th December 2007 which showed that he was paid €346.00 per week. The Appellant also produced Bank Statements in support of this contention.
The Appellant stated that he continued to be paid €346.00 per week until the date of the termination of his employment on 6th September 2009. However, he gave evidence under oath to the Court that from the time he was paid €346.00 per week he was obliged by his Employer to hand back €100.00 of his pay and when he requested a written receipt for the deductions his Employer refused to supply same. He submitted to the Court that there was no valid reason for this deduction and by stating this amount on the payslip it gave the appearance that the Employer was complying with the national minimum wage (€8.65 x 40 hours = €346.00).
The Court notes that the Employer supplied the Appellant with meals, however, he was not supplied with lodgings. From the evidence given the Court is satisfied that there was no plausible explanation for the deductions made.
During the relevant periods the national minimum wage ranged from €7.65 to €8.65 per hour, i.e.
3rd September 2006 - €7.65 per hour
1st January 2007 - €8.30 per hour
1st July 2007 - €8.65 per hour
Having examined the records the Court finds that the Complainant was underpaid by a total amount of €41,508.77 for the relevant period.
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 €41,508.77 in respect of his claim under the National Minimum Wage Act, 2000 within six weeks of the date of this Determination.
An Order will be made in the Complainant’s favour in that amount.
Signed on behalf of the Labour Court
4th October, 2010______________________
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.