FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 27(1), NATIONAL MINIMUM WAGE ACT, 2000 PARTIES : CLODAGH O'DWYER MCANENLY & SEAN MCANENLY T/A GRANGE TRANSPORT - AND - KESTUTIS MIKULSKIS (REPRESENTED BY RICHARD GROGAN & ASSOCIATES, SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. An appeal of a Decision of a Rights Commissioner r-108034-mw/11/SR.
BACKGROUND:
2. This case is an appeal by the Employer of a Rights Commissioner Decision No: r-108034-mw-11/SR. The Rights Commissioner, in his Decision of the 23th November 2011 found in favour of the Worker's claim. On the 4th January 2012, the Employer appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 27(1) of the National Minimum Wage Act, 2000. A Labour Court hearing took place on 7th January 2014.
The following is the Court's Determination:
DETERMINATION:
This is an appeal under the Minimum Wage Act 2000 (the Act) by Grange Transport (the Respondent or the Appellant) against Rights Commissioner Decision number r-108034-mw/11/SR issued on 23 November 2011, in which he found a complaint made by Mr Kestutis Mikulskis (the Complainant) that his employer failed to pay him the minimum wage set out in the Act, was well founded and awarded him compensation in the sum of €3,153.80.
The Respondent appealed against that decision to this Court. The matter came before the Court on a number of occasions. On each occasion additional time was requested by one or other party to make additional submissions or to produce additional documentation in relation to the case which was finally submitted to the Court on 14 February 2014. At that point additional time to enable the parties to address some details was sought by both sides. After several contacts with both sides the Court decided to issue a determination in the case.
Background
The Respondent operates an international haulage company out of its base in Emyvale Co Monaghan. The Complainant went to work for the Respondent as a long distance lorry driver in early 2010. There is a dispute about the precise commencement date of the Complainant’s employment. He states that he commenced working for the Respondent on 21 March 2010. The Respondent states that he commenced work on 5 June 2010.
The Court has already addressed this matter in a related case (wtc/12/2 - 28 August 2013) in which it decided that the Complainant commenced work on 5 June 2010. That decision was not appealed. Accordingly the Court adopts that decision in this case.
Complainant’s Case
The Complainant states that he was paid less than the minimum wage while working for the Respondent. He states that he worked an average of 50 hours per week for which he was paid a standard rate of €311.22. He argues that he was entitled under the Act to a minimum rate pay of €8.65 per hour. He states that he was underpaid in the amount of €121.30 per week.
Respondent’s Case
The Respondent argues that the Complainant was paid in excess of the minimum wage for the hours he worked. It argues that the Company’s pay records disclose the Complainant was paid €393.53 per each week between 13 June 2010 and 18 July 2010. They further disclose that for weeks ending 12 and 19 September 2010 he was paid €331.63 per week.
The Respondent further argues that the Complainant did not work the claimed average of 50 hours per week. It argues that its tacograph records disclose that he worked considerably less hours per week and was accordingly paid in line with the National Minimum Wage for the Hours worked.
Findings of the Court
Section 22(1) of the places an obligation on an employer to keep records showing compliance with the Act. Section 22(3) states
- (3) Without prejudice to subsection (2) , where an employer fails to keep records under subsection (1) in respect of his or her compliance with a particular provision of this Act in relation to an employee, the onus of proving, in proceedings before a rights commissioner or the Labour Court, that the provision was complied with lies on the employer.
The Court has already decided that the Complainant worked in excess of 48 hours per week. In this case the parties, in the course of the hearing, settled on 50 hours per week as the normal weekly hours of the Complainant.
In support of its contention that it complied with the Act in respect of the hourly rate of the Complainant the Respondent submitted copies of his pay slips and the tacograph charts that he completed and signed.
The Court accepts the pay slips are evidence of the Complainant’s weekly wages. However the Court does not accept that the tacograph charts are evidence of the Complainant’s working hours. Indeed the parties agreed that the Complainant worked an average of 50 hours per week in the course of his employment with the respondent.
The Complainant worked for the Respondent for a total of 15 weeks and worked a total of 750 hours. His total pay over that period amounted to €5202.98. His total entitlement at the rate of €8.65 per hour amounted to €6487.50 giving rise to a shortfall of €1284.52.
Determination
The Court finds the complaint is well founded. The Court finds that the Complainant was underpaid under the Act in the amount of €1284.52 and orders the Respondent to pay the Complainant compensation in that amount.
The decision of the Rights Commissioner is varied accordingly.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
CR______________________
14th May, 2014.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.