Man wins challenge against ruling on minimum wage case

A man has won his High Court challenge over the Labour Court's rejection of his case that his employer paid him less than the minimum wage.

The Labour Court must now reconsider the matter.

Dimitri Karpenko claimed his employment contract provided for him to work 66 hours a week for €337.50.

Freshcut Food Services Ltd had argued Mr Karpenko did not actually work more than 40 hours weekly at its premises at Dublin Industrial Estate, Glasnevin, and disputed any breach of the Act.

The case centred on proper interpretation of Section 8 of the National Minimum Wage Act 2000 and will back to the Labour Court for reconsideration in line with the findings of Mr Justice Michael McGrath.

Mr Karpenko was employed as a production operative with the company from July 2013 to February 2014. He made a complaint to the Workplace Relation Commission alleging, in accordance with his contract, his working hours at the were 9pm to 9am Monday to Sunday, with shifts rostered six days per week.

He claimed his contracted working hours, including breaks, were 66 hours per working week, for which he was paid on average some €337.50 and that amounted to breach of the minimum requirements of the Act.

A Rights Commissioner decided his claim was not well-founded and noted Mr Karpenko’s records showed he was paid €10 for each hour he worked, which was not in breach of the Act. The national minimum wage at the time was €8.65 an hour.

The commissioner found the employment contract did not fully comply with certain other requirements of the Act, including that Mr Karpenko, as a night worker, sometimes worked beyond 40 hours weekly, and awarded total compensation of €1,000.

‘Extraordinary’

Mr Karpenko appealed to the Labour Court which, although rejecting his appeal, described his contractual terms as “quite extraordinary” and observed, without reaching a conclusion, it may not be in accordance with other legislative provisions.

The Labour Court held Mr Karpenko was paid in excess of the national minimum wage for the hours he “actually worked” or was “required to work” during the relevant pay reference period.

It noted that representatives of Freschcut had said Mr Karpenko did not work more than 40 hours weekly during the period of his employment and that was not contested by Mr Karpenko.

Mr Karpenko, represented by Marguerite Bolger SC, appealed on a point of law to the High Court.

In his judgment on Friday, Mr Justice McGrath said the Labour Court had not engaged in the necessary exercise for determining “working hours” as set out in Section 8 and erred by equating hours “actually worked” with “working hours” as defined in the Act.

The Labour Court is required to assess whichever is the greater between the hours in the contract and the total hours during which Mr Karpenko carried out or performed the activities of his work, or had to be available for work and was paid as if he was performing his work activities.

Only by carrying out such an assessment could the Labour Court have concluded which was the greater number of work hours, he said.

He added he considered there was "merit" in submissions by Aaron Shearer, for the employer, that on a proper interpretation of the terms of the contract, it was unlikely to mean the employee's work hours extended to 66 hours a week. It may well be that the Labour Court, having taken into account the High Court findings, may reach the same result and, to that extent, the appeal may have "little substantive merit", he said.

Nevertheless, the Act is “an important piece of protective legislation” and the proper interpretation of section 8 is of general relevance and importance, he said.