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 - MR PAWEL LABIJAK (REPRESENTED BY RICHARD GROGAN & ASSOCIATES SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. An appeal of a Rights Commissioner’s Decision r-11828-mw-12/SR.
BACKGROUND:
2. This case is an appeal by the Worker of a Rights Commissioner Decision No: r-11828-mw12/SR. The Rights Commissioner in his Decision of the 16th March 2012 found the claim was not well founded. On the 13th April 2012, the Worker appealed against 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 Mr Pawel Labijak (the Complainant) that Grange Transport ltd (the Respondent) failed to pay him an hourly rate of pay that complied with the statutory minimum wage as determined in accordance with the Act.
The Respondent denies the complaint.
The matter was considered by the Rights Commissioner who found that the Complaints were not well founded as the Complainant did not attend the hearing and offered no evidence in support of the complaint. The Complainant appealed against that decision to this court.
When the case came on for hearing both sides requested an adjournment to make further submissions to the Court. Those final submissions were received in February 2014.
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 on 1 May 2006. He claims that he was not paid the national minimum whilst employed by the Respondent.
Complainant’s Case
The Complainant states that he was paid less than the minimum wage while working for the Respondent. His weekly rate of pay was €351.57 per week. He states that he worked in excess of 48 hours per week and accordingly was paid below the prevailing minimum wage of €8.65 per hour.
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 €351.57 per week. It argues that in related proceedings the Complainant has argued that he was paid variously €5.85 per hour, €6.66 per hour and €4.50 per hour. It argues that on each occasion in which he has given evidence in Court in related proceedings he has changed the hourly rate of pay he says he was paid. It argues that it cannot mount a defence to the instant complaint unless he sets out the rate that he argues he was paid before this Court.
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, in related proceedings was told by the Complainant that the Respondent complied with the Working Time Act 1998 in respect of the length of his working week, Accordingly the Court found in that case that the Complainant was not required to work in excess of 48 hours per week. However the Court did not decide the actual number of hours the Complainant worked in the relevant period.
When the instant case came before the Court the Complainant was not in attendance. No evidence of the hours the Complainant worked were presented to the Court.
Mr Grogan, Solicitor for the Complainant, stated that, in accordance with Section 22(3) of the Act,the onus of proving compliance with the Act lies with the Respondent as it failed to maintain records contrary to Section 22(1) of the Act.
The Court notes that Section 24(5) of the Act states
- (5) A rights commissioner shall hear the parties to a dispute and any evidence relevant to the dispute offered by them, and otherwise inform himself or herself about the dispute in such manner as prescribed or, if no manner is prescribed, then as the rights commissioner thinks appropriate.
The Respondent did not keep records as required by Section 22(3) of the Act and accordingly the burden of proving compliance rested with it. The Respondent gave evidence that it paid the Complainant a minimum of €8.65 per hour for all hours worked. It relied on the evidence of the tacograph in this regard as being reasonably indicative of the total hours worked as the Complainant was not involved in any activity other than driving. It argued that the tacograph was a reasonable proxy for the total hours worked.
The Complainant was not present to contradict the evidence given by the Respondent. Accordingly, in the absence of any evidence to the contrary the Court accepts the arguments presented by the Respondent in this case.
Determination
The Court finds the complaint is not well founded.
The appeal is not allowed. The decision of the Rights Commissioner is affirmed.
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.