ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033369
Parties:
| Complainant | Respondent |
Parties | Farzad Sedghi-khoi | Barry Whelan Recruitment Ltd trading as Excel Recruitment |
Representatives | John Maher JM Tax Consultant Ltd | Barbara Johnston E R services |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 | CA-00043445-001 | 07/04/2021 |
Date of Adjudication Hearing: 06/08/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 (parts 1 to 3) or such other Act as might be referred to in the 2015 Act, and made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I am obliged to fulfil obligation to make all relevant inquiries into the complaint made. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred a dispute as to the entitlements of the employee under an enactment specified in part 3 of schedule 5 and in this instance the National Minimum Wage Act of 2000. As an Adjudication Officer I can make a decision on redress pursuant to Section 26 of the national Minimum Wage Act 2000 as specified in Schedule 6 of the Workplace Relations Act 2015.
Background:
Section 26 of the National Minimum Wage Act 2000 states that where an employer and an Employee do not agree on the appropriate entitlements under the NMW Act and there is an alleged underpayment to the employee then the dispute can be referred to the WRC as allowed for under section 41 of the Workplace Relations Act of 2015. However, there is stipulation that before such a claim can be entertained before an Adjudicator in the WRC, the Employee must have sought in writing and obtained (from the Employer) a statement of the average hourly rate of pay of the relevant pay reference period for that employment and the claim must then be triggered in the WRC within six months of that statement having been obtained from the Employer. This is set out in Section 23 of the National Minimum Wage Act 2000-2020. It is noted that the Employer is obliged to provide the statement in writing within four weeks of having received the request. In the event that the Employer does not provide the Statement within four weeks then the Complainant must lodge the complaint within six months of the expiration of the four weeks allowed. The requirement to seek a statement is an imperative. In fact, the Director General is mandated not to entertain a dispute where the section 23 statement has not been sought. This is set out in Section 24 of the National Minimum Wage Act of 2000-2020. Pursuant to Section 26 of the National Minimum Wage Act 2000 and Having heard the evidence, an Adjudicator can (in making a decision) give a direction that the employer pay to the employee an award of arrears, being the difference between any amount paid and the minimum amount the employee was entitled to. It should be noted that the Adjudicator also has the authority to award reasonable expenses incurred by the employee in connection with the dispute. The Adjudicator may also require the Employer rectify practises which may have given rise to such a contravention. The facts in dispute between theses parties is comprehensively set out in the Adjudication Officer Decision ADJ 29357. |
Summary of Complainant’s Case:
The Complainant has made the case that he is underpaid for the hours of work he performs. He argues that he must perform significantly more hours than he is paid for. |
Summary of Respondent’s Case:
The Respondent rejects the allegation and states that it pays over the National Minimum Wage and that the complainant works fewer hours than he is suggesting. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant came to work with the Respondent company in September of 2015. The Complainant was made Redundant on or about the 8th of May 2020. The Complainant issued a complaint against his former Employer on the 7th of April 2021. The complaint I am dealing with therefore issued some eleven months after the termination of the employment. The complaint being made is that the complainant did not get paid the National Minimum Rate of Pay and he seeks payment of the shortfall. It is noted that in the body of the complaint that the complainant states that his employer failed to pay the National Minimum Wage for the duration of the employment 2015 to 2020. It is common case that the complainant had brought previous Minimum Wage complaints before the WRC. Indeed, I have the benefit of a helpful decision of an Adjudication Officer dated the 21st of January 2021 which throws insightful light on the history of the employment herein. I note that the Complainant brought a complaint of underpayment (under National Minimum Wage legislation) as far back as the 6th of November 2019. This claim was withdrawn, and a subsequent complaint was lodged eight months later in July 2020. On the face of it, such a complaint can only relate to a six-month period immediately preceding the day that the complaint was lodged. This is the time limit specified in Section 41 of the Workplace Relations Act 2015 and from which an Adjudication Officer’s power to hear employment complaints is derived. This could conceivably have been extended to 12 months if the Complainant was able to demonstrate that reasonable cause had prevented him from making the complaint earlier. However, when that Minimum Wage complaint (which had issued on the 7th of July 2020) came before the Adjudicator on the 21st of January 2021 it became apparent that the Complainant, through no fault of his own, had not written to his Employer requesting a statement on the average hourly rate of pay for the specified pay reference period. The Adjudication Officer recognised that this mandatory action (as prescribed in section 24 of the Act) was fatal to the complaint lodged and she found she had no jurisdiction to deal with same. I note that in making this finding the Adjudication Officer referenced the case of Mansion House Limited t/a Fado Limited -v- Jose Izquierdo MWD04 which states: “For the sake of completeness, the Court should point out that where a claimant has failed to request a statement in accordance with Section 23(1), the appropriate course of action is to decline jurisdiction without prejudice to the claimants right to re-enter the same complaint having complied with the said section…” And …”It is the Courts view that a decision dismissing the claim on its merits on the basis of non-compliance with this section alone is not appropriate nor is it warranted by any provision of the Act” It should be noted that this is a 2004 decision and predates the creation of the WRC and the role of the Director General. The Complainant has asked that I interpret this Labour Court decision to somehow allow him to re-enter the complaint which issued on the 7th of July 2020 as part of the complaint which I have been assigned to deal with and which issued on the 7th of April 2021. I do not see how this is possible. I am bound by the Statutory framework. I only have jurisdiction to hear a complaint which has been triggered within the time limit prescribed by Statute and within the six months of the Section 23 statement having been sought or obtained. A request for a Statement pursuant to section 23 which is sought after the 7th of July 2020 date cannot cure the flawed nature of that application. Indeed, I do not accept that this was what was intended by the Labour Court- some sort of “liberty to apply” facility. I think what was intended was that a Complainant (such as the one in the Mansion House decision would be allowed an opportunity to mend his or her hand and start again. The consolation is intended to be in the fact that no finding of fact has been made. The Court very clearly states that no decision has been made on the merits of a case which cannot proceed for the want of jurisdiction. I find therefore that I can only deal with the Complaint before me which issued on the 7th of April 2021 and because of this the figures prepared and submitted, and which go back to 2015 are not within my remit under the complaint before me. Indeed, it seems to me that the only jurisdiction that I have is for the complaint that there has been an underpayment under the Minimum Wage Act going back for six months to November 2020 at which time the Complainant was not, in fact, an employee of the Respondent company. I cannot make a finding on underpayment for the period of six months prior to the issuing of the Complaint as the Complainant was not working for the Respondent at that time.
The Complaint herein is therefore not well-founded.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 24 of the National Minimum Wage Act, 2000 CA-00043445-001 - the complaint fails as it is not well founded. |
Dated: 02nd February 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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