SECTION 27 (1), NATIONAL MINIMUM WAGE ACT, 2000 AND 2015
O' LEARY INTERNATIONAL UNLIMITED COMPANY
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms O'Donnell
Employer Member: Ms Doyle
Worker Member: Mr McCarthy
1. Appeal of Adjudication Officer Decision No(s). ADJ-00009456 CA-00012420-001/006.
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 18 September 2018. A Labour Court hearing took place on 21 November 2019. The following is the Determination of the Court:-
This is an appeal by O’ Leary International Unlimited Company against an Adjudication Officer’s Decision ADJ-00009456 given under the National Minimum Wage Act 2000 (the Act) in a claim by Marius Roca that he was not paid the minimum wage. The Adjudication Officer found the complaint to be well founded.
In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Marius Roca is referred to as the Complainant and O’ Leary International Unlimited Company is referred to as the Respondent.
The Complainant commenced employment with the Respondent in 2011 as an International HGV Driver. On the 8thSeptember 2014 the Respondent provided him with a written statement of terms and conditions of employment. Under the heading remuneration the contract stated that he would receive a minimum daily payment of no less than €106 less applicable revenue deductions for days worked. It went on to say that the basic rate of pay would be no less than €8.65 per hour worked. The last section of the remuneration paragraph noted section 23 of the Act and stated that for the purpose of the Act the calculation period will be 4 calendar weeks starting on the first Monday of each calendar year.
On the 27thApril 2017, the Complainant’s representative sent an email to the Hr Manager which included a request under section 23 for a written statement of the average hourly rate. The email identified five issues as follows;
- “1) that the minimum wage was not being paid for all hours worked, 2) that minimum was not paid in 2016 or previously, 3) that he is a mobile worker and entitled to be paid for all time work from start to finish 4)a statement of subsistence pay that applied last year and this year and 5) ….formally requesting as provided for under the Minimum Wage Act 2000 a written statement of their average hourly rate. The reference period to be applied is Week 1 Week 2 Week 3 and Week 4 for October 2016 ……”
It was the Complainant’s submission that he had not been paid the minimum wage since he commenced work in 2011. The Complainant submitted a breakdown of the figures for each year showing that based on a 48hour week there was a total wage arrears of € 9,785.80. The Respondent in response to a question from the Court confirmed that they did not dispute the figures being put submitted to the Court by the Complainant’s representative.Respondent’s case
It is the Respondent’s case that the Complainant’s case must fail as the Complainant did not comply with section 24 (2) (a) (i) of the Act. It is the Respondent’s submission that the emails sent by the Complainant’s representative and the letter signed by the Complainant were not valid requests under the Act. Section 24 (2) (a) (i) requires that an employee obtain under section 23 of the Act a statement of his or her average hourly rate of pay in respect of the relevant pay reference period. In this case the reference period set out by the Respondent in the terms and conditions of employment is “4 calendar weeks starting on the first Monday of each calendar year”.
The request by the Complainant covered by this claim referred to “Week 1 Week 2 Week 3 and Week 4 of October 2016which is not a valid pay reference period for the purpose of the Act. It is the Respondent’s submission that that request was for four separate weekly periods whereas the Respondents reference period incompliance with section 10 of the Act is as stated in the terms of employment four calendar weeks. The Respondent does not dispute the fact that the emails and letters made reference to a request under section 23 of the Act. Nor do they dispute that they responded to the emails and letters and that they provided information requested.
It was their submission that they were not under any obligation to advise the Complainant that he had incorrectly cited the reference period nor could the fact that they had engaged with the Complainant and his representative on foot of the correspondence be taken to mean that they had accepted that it was a valid request. It was the Respondent’s submission that they were entitled to resile from their position of engaging with the Complainant and his representative on foot of the emails and letters at any stage and to assert that it was not a valid request.
The second submission made by the Respondent is that the Court does not have jurisdiction to hear the case. The Respondent drew the Courts attention to section 24(2) (of the Act which states;
- The Director General of the Workplace Relations Commission (WRC) shall not entertain a dispute in relation to an employee’s entitlements under this Act and accordingly, shall not refer the dispute to an Adjudication officer under section 41 of the Workplace Relations Act 2015-
(b) where, in respect of the same alleged under-payment, the employer is or has been
(i) the subject of investigation by an inspector under section 33 or 34, or
The first issue for consideration is whether or not a valid reference period was identified by the Complainant when he made his request under section 23 of the Act.
- Section 2. of the Act states;
—(1) In this Act, unless the context otherwise requires
“pay reference period”, in relation to an employee, means the period selected undersection 10by his or her employer;
Section 10 defines a pay reference period as
—An employer shall select as a pay reference period for the purposes of this Act a period not exceeding one calendar month.
Section 23 Employee entitled to statement of average hourly rate of pay for pay reference period.
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.
(2) An employee shall not make a request under subsection (1) in respect of any pay reference period during which the hourly rate of pay of the employee was on average not less than 150 per cent calculated in accordance withsection 20, or such other percentage as may be prescribed, of the national minimum hourly rate of pay or where the requestwould be frivolous or vexatious.
(3) A request under subsection (1) shall be in writing and identify the pay reference period or periods to which it relates.
The second issue that falls to be considered arises under section 24 (2) (b) (i) which states
- Disputes about entitlement to minimum hourly rate of pay.
24.— (1) For the purposes of this section, a dispute between an employee and his or her employer as to the employee ’s entitlements under this Act exists where the employee and his or her employer cannot agree on the appropriate entitlement of the employee to pay in accordance with this Act resulting in an alleged underpayment to the employee.
(2) The Director General of the Workplace Relations Commission shall not entertain a dispute in relation to an employee ’ s entitlements under this Act and, accordingly, shall not refer the dispute to an adjudication officer undersection 41of the Workplace Relations Act 2015
(a) unless the employee—
(i) has obtained undersection 23a 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,
(b) where, in respect of the same alleged under-payment, the employer is or has been—
(i) the subject of investigation by an inspector undersection 33or 34, or
(ii) prosecuted for an offence undersection 35.
- Section 33 was repealed and section 34 states:
34.—(1) Where an employee alleges that his or her employer has failed to remunerate the employee to an extent required in accordance with this Act, the employee or the employee’s representative with the consent of the employee, may request an inspector to investigate the allegation.
(2) An inspector may, on the request or on behalf of an employee under subsection (1), or of the inspector’s own motion if the inspector believes that an under-payment of pay to an employee has been made, investigate the allegation or matter and, where the investigation is on the request or behalf of an employee, advise the employee of the outcome of the investigation.
The Respondent made no submission on the substantive element of the case and accepted the arrears figures put forward by the Union.
The Court determines that the Complainant was underpaid a total of €9,785.80. for the relevant period and accordingly requires the Respondent to pay the complainant that amount in respect of his claim under the National Minimum Wages Act 2000 within six weeks of the date of this Determination.
The appeal fails. The decision of the Adjudication Officer is varied accordingly. The Court so determines.
Signed on behalf of the Labour Court
17 December 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.