This case is an appeal by the Respondent, Imtiaz Ranjh,  practising under Sky Solicitors,  against an Adjudication Officer’s Decision which found the complaint to be well founded and awarded arrears of €24,155.31 to the Complainant, Mr. Imtiaz Khan. The Respondent did not accept that the Complainant was an employee. The parties could not agree on the hours that were worked or what payment was received by the Complainant. The Respondent submitted that even if the Complainant was an employee, his complaint was out of time.

The Complainant commenced employment with the Respondent on the 7thAugust 2017. It was his submission that he regularly worked 50/60 hours and more during his period of employment. He submitted that he was not paid the minimum wage during his term of employment. The Complainant, in his evidence took the Court through a table he had drawn up for each month showing the hours he had worked, the payment he had received and the shortfall in payment when the minimum wage was applied to the hours worked.

During the hearing, a Memorandum which came into effect on the 7th of August 2017 was referred to which stated that the Complainant will report to Mr Imtiaz Ranjha and identified Mr Ranjha as the Principal. The memorandum stated that the Complainant will be paid a salary as per Law Society requirements, including during PPC 1 and PPC 2.  The Respondent stated that if the Complainant was an employee that his employment ceased on the 31st of August 2018. The Complainant sought to rely on a handwritten note by Mr Donal O’ Riordan, his training Solicitor when he was working for the Respondent. The note dated the 5th of November 2018 and signed by Mr O’ Riordan stated that, “To my knowledge Khan worked approximately 50/60 hours per week.”

It was the Complainant’s evidence that when he was at lectures he would go straight back to the office when the lectures were over and that he worked late into the evening and at times he worked weekends. When he was not attending lectures, he worked full-time and often worked late into the night. It was the Complainant’s evidence that he carried out work assigned to him by his training solicitor. It was his submission that the Respondent had responded initially to say he would check his accounts and pay whatever monies were outstanding. However, by email of the 21st of November,  the Respondent stated that the Complainant had not provided a break down and that he had already been paid enough. The Respondent did not provide a breakdown of the Complainant’s earning for the relevant period as requested.

The Respondent submitted that the Complainant was not an employee and that if he was an employee, it was only for the purpose of complying with the Law Society requirements. The Respondent submitted that the Law Society’s requirements were not something that this Court should give any consideration too. The Respondent also submitted that the Complainant did not work the hours he was claiming he worked and that while he may have been in the office late in the evening, he was not doing work for the firm -  it was his own personal work related to campaigns that he was involved with. The Respondent did not provide the Complainant with a contract of employment and or a statement of terms and conditions of employment and did not appear to have set out at any time what the pay reference period was.

The National Minimum Wage Act provides that the Complainant may request a written statement of the employee’s average hourly rate of pay for a pay reference period. While the Complainant did not use the language of the Act when making his request the Court finds that his request clearly indicated that he was seeking to establish his hourly rate of pay for the period he worked for the Respondent and that he required the Respondent to set that out for him. On that basis the Court finds that the Complainant did make a request in line with section 23 of the Act.

The Court noted the requirement of the Law Society that the Complainant work at least thirty-six hours per week and the confirmation in the Articles of Indentures at the time he transferred that he had completed in-office training in line with the requirements of the Law Society. The next piece of correspondence the Court considered was the handwritten note signed by Mr Donal O’ Riordan, Solicitor on the 5th of November 2018 which stated that to his knowledge the Complainant worked 50/60 hours a week.

The court highlighted that no credible explanation was put before the Court, as to why the Complainant’s Training Solicitor would sign a note indicating that he worked 50/60 hours a week if that was not true. Nor was any credible reason given as to why if he was only working 22 hours a week and therefore not compliant with the Law Society’s requirements, that this was not commented on in some way when the Articles of Indenture were being transferred.

On balance, the Court preferred the Complainant’s evidence that he was working on average 50/60 hours inclusive of his hours at lectures, this was supported by the note signed by Mr. Donal O’Riordan. The Court determined that the Complainant was underpaid a total of €22,439.25 for the relevant period. The Labour Court dismissed the Respondent’s appeal of the decision of the Adjudication Officer.
https://www.workplacerelations.ie/en/cases/2021/july/mwd212.html