The High Court has sent a minimum-wage dispute involving former production operative Dimitrij Karpenko and Freshcut Food Services Limited back to the Labour Court, finding that the Labour Court had not applied the statutory test for calculating working hours.
Mr Justice MacGrath delivered the judgment on 18 October 2019 in an appeal on a point of law from the Labour Court’s 2017 determination. The High Court did not decide the number of hours that should count or whether Freshcut had breached the National Minimum Wage Act. It directed the Labour Court to determine the matter again using the test in section 8 of the Act.
Mr Karpenko argued that his contract set his normal hours between 9pm and 9am, Monday to Sunday, with six shifts a week. Taking breaks into account, he claimed this amounted to 66 contracted hours weekly. He said his average weekly pay of €337.50 was below the statutory minimum for those hours. The Labour Court had rejected his appeal, concluding that he was entitled to the minimum wage for hours actually worked. Its determination recorded that he had not worked more than 40 hours in any week during the relevant employment period, a point the judgment says was not contested.
The High Court held that section 8 requires a comparison between the hours determined under the employment contract and the hours the employee performed work, or was required to be available for work at the workplace and paid as if working. The greater number is the statutory measure. The Labour Court had equated hours actually worked with “working hours” under the Act and had not carried out that comparison, the judge found.
Freshcut argued that the contract’s reference to shifts “as per roster” meant the stated 9pm to 9am period was a window for shifts, not a requirement to work 12 hours per shift. The judge said there was merit in that submission and that a roster was likely to matter in interpreting the contract. But the Labour Court had not analysed whether a roster existed, what it showed, or whether section 17 of the Organisation of Working Time Act was relevant to the calculation. The High Court made no finding on those questions.
The company also argued that earlier proceedings barred or prevented Mr Karpenko from bringing the claim. The High Court rejected that argument, noting that the earlier decision concerned different legislation and notification of overtime, rather than the calculation of working hours under the minimum-wage law.
The appeal was allowed and the matter remitted to the Labour Court for further determination. The judge noted that it might reach the same result after applying the required test.