ADJUDICATION OFFICER DECISIONS
Adjudication Reference: ADJ-00020531
Leo Costello Dublin South Citizens Information Service
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 23/05/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
In March 2019, the complainant referred complaints to the Workplace Relations Commission pursuant to the National Minimum Wage Act and the Payment of Wages Act. The complaints were scheduled for adjudication on the 23rd May 2019.
At the time the adjudication was scheduled to commence, it was apparent that there was no attendance by or on behalf of the respondent. I verified that the respondent was on notice of the time, date and venue of the adjudication. Having verified this, I proceeded with the adjudication in the absence of the respondent.
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant claims an underpayment of wages due to him and that his pay was below the applicable national minimum wage. The respondent does not deny the claim.
Summary of Complainant’s Case:
The complainant commenced employment as a driver on the 15th January 2012. He was paid €191 for a 20-hour week, working Mondays, Tuesdays and Wednesdays. The respondent did not keep records of his working hours.
In February 2016, the complainant started working five days per week every week. The respondent, however, did not increase his pay to reflect the greater hours and his pay stayed at €191 per week. This additional work was done over two days on either Thursdays, Fridays or Saturdays. He now worked a total of 32 hours per week.
The complainant referred to examples of invoices given to retailers showing that he worked over six days of the week, for example for deliveries on the 25th January 2018 (a Thursday), the 23rd February 2018 (a Friday), 3rd March 2018 (a Saturday), 29th March 2018 (a Wednesday), 6th September 2018 (a Thursday) and 7th September 2018 (a Friday).
The owner promised to increase the complainant’s pay but never did so. The owner never had time to talk and often made promises. He also threatened to dismiss the complainant if he continued to raise this issue.
The complainant was paid every Friday in cash. He started baking at 4.30am and would commence driving at 7am. When he finished, he brought the van home. On Fridays, the complainant would return at lunch time to get paid.
The complainant’s employment ended on the 13th September 2018 when he was summarily dismissed following the appointment of a liquidator to the respondent company. He submitted that he can rely on the statutory notice period that ought to have been afforded to him.
The complainant refers to reasonable cause to advance the complaint pursuant to the Payment of Wages Act.
Summary of Respondent’s Case:
The respondent did not attend the adjudication and did not make submissions in respect of the complaints.
Findings and Conclusions:
This is a complaint pursuant to the National Minimum Wage Act. On the 25th October 2018, the complainant wrote to the liquidator regarding his entitlements under the National Minimum Wage Act. This statement complies with section 23 of the Act. No response was sent by or on behalf of the respondent.
I note the approach taken by the Labour Court in Sue Ryder Foundation Ireland v Meenagh (MWD051) to the cognisable period for a claim made under the National Minimum Wage Act. I follow this approach and the cognisable period in this case is the 4th February 2016 to the 13th September 2018.
The complainant’s own evidence, supported by the documentation, indicates that he started working the full week in February 2016, but his pay was not altered. While the complaint form refers back to 2012, the complainant clarified at the adjudication that in fact he only worked the full week from February 2016.
On the 1st January 2016, the national minimum wage was increased to €9.15 per hour (S.I. 442/2015). It was increased on the 1st January 2017 to €9.25 (S.I. 516/2016). It was again increased to €9.55 on the 1st January 2018 (S.I. 440/2017).
I find that the complainant worked a 32-hour week and was paid €191 per week. His hourly rate of pay was therefore €5.96. It is clear that there was a contravention of the National Minimum Wage Act at the time the complainant’s hours increased, and his pay did not. He is therefore entitled to arrears for monies owed to him.
I calculate the arrears as follows. The period from the 4th February 2016 to the 31st December 2016 is one of 47 weeks. The shortfall in this period in the hourly rate of pay was €3.19. He worked 32 hours over 47 weeks, leading to a total shortfall for the period of €4,797.76.
For the period of the 1st January to 31st December 2017, the shortfall in the hourly rate of pay was €3.29. He worked 32 hours per week over the full year. This led to a shortfall for the year of €5,474.56.
The period of the 1st January to the 13th September 2018 is one of 36 weeks. The shortfall in hourly pay increased to €3.59, in line with increase in the national minimum wage. This led to arrears of €4,135.68 for this period.
The National Minimum Wage Act permits redress in the form of arrears of pay due to the employee. It does not permit an award of compensation for a breach of the statute. The complainant is entitled to the sum of the arrears calculated above, i.e. the amount of €14,408.
I also find that the complainant is due an award of expenses because of the work he had to undertake in preparing his detailed submissions. I award expenses of €500.
This is a complaint pursuant to the Payment of Wages Act. The complaint was referred to the Workplace Relations Commission on the 15th March 2019. The cognisable period is the 16th September 2018 to the 15th March 2019.
The complainant worked for the respondent from the 15th January 2012, meaning that he had over five years’ employment with the respondent. He, therefore, has a statutory notice entitlement of four weeks. Notice pay falls within the definition of “wages” in the Payment of Wages Act. The complainant’s entitlement to notice pay fell within the cognisable period and its non-payment is an unlawful deduction. I, therefore, award the complainant €1,222.40.
The complainant referred to reasonable cause to extend the limitation period for the claim. Applying the well-established authorities in the area, I find that there are not sufficient facts that explain or excuse the delay in submitting the claim. The complainant has not established reasonable cause to allow this.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
I direct that the respondent pays to the complainant an award of arrears of €14,408 pursuant to the National Minimum Wage Act.
I direct that the respondent pays to the complainant an award of expenses of €500 pursuant to the National Minimum Wage Act.
I decide that the complaint pursuant to the Payment of Wages Act is well founded and the respondent shall pay to the complainant redress of €1,222.40.
Dated: 2nd December 2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
National Minimum Wage Act
Sue Ryder Foundation Ireland v Meenagh (MWD051) / cognisable period
Redress in the form of arrears