EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO
.EMPLOYEE appellant PW113/2012
against the recommendation of the Rights Commissioner in the case of:
EMPLOYER appellant
EMPLOYER respondent
under
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr G. Hanlon
Members: Mr. N. Ormond
Mr N. Dowling
heard this appeal at Dublin on 19th June 2013
Representation:
____________
Appellant(s):
Respondent(s):
This appeal came before the Tribunal by way of an appeal by an employee appealing against the recommendation of the Rights Commissioner reference r-111068-pw-11/DI dated 7 February 2012.
Determination on Preliminary Issue
The appeal between the Appellant and the Respondent arises out of the non-implementation of a recommended pay increase. The issue which the Tribunal has been asked to consider is a preliminary one as to whether the complaint is effectively out of time. Section 6 (4) of the Payment of Wages 1991 states that an appeal must be presented within a six month period from a contravention.
The Appellant’s case is that each and every deduction, or in this case non-payment, represents a fresh contravention of the Act and therefore, in making a claim under Section 5 a the Appellant is free to do so within six months from each and every deduction and\or non-payment of an agreed increase.
The Respondent’s claim is that a claim under the Act must be made within 6 months from the first and\or initial deduction or non-payment. The Respondent’ s interpretation of Section 6(4) is that the phrase “unless it is presented to him [The Rights Commissioner] within the period of 6 months beginning on the date of the contravention”.
The Respondent believes that this phrase means time starts from the first or initial deduction or non payment and that subsequent deductions do not amount to a contravention of the Act.. Accordingly the Respondent’s contends that a cause of action does not arise with each or very deduction or non-payment but rather arises once.
The Respondent has opened up the previous decision of the Employment Appeals Tribunal Moran v HSE in support of this contention.
This Tribunal has in effect been asked to concur with the interpretation of a previous Division of the Employment Appeals Tribunal and in so doing other cases have been furnished for consideration.
Having carefully considered the submissions of both Legal Representatives it is the opinion of this Tribunal that a cause of action does arise for an employee with each and every contravention and that an employee has a period of six months from each and every contravention to make a claim against the Employer.
The Tribunal does not accept the interpretation in Moran v HSE and believes the Appellant may be correct in that the relevant section may have been misinterpreted.
The reading of the Section to this Tribunal is clear in that the phrase “within the period of 6 months beginning on the date of the contravention” effectively indicates a statutory period of time that an Appellant has and when that time commences. It does not seek to limit an Appellant in any way from making a claim in relation to each and every contravention and the Tribunal is satisfied that each deduction or non payment amounts to a new contravention. If it was the intention of the Act to effectively commence time from the first Contravention then one would expect to see such phraseology in Section 6( 4 ) to be different and for example to refer to an initial contravention or first contravention. The manner in which wages or salary are paid is significant here in that it is custom and practise in this Jurisdiction for salaries to be paid either weekly, bi weekly, monthly and in some cases an element of salary can be paid quarterly or indeed bi annually, etc.
The Employer’s protection or comfort is that an Employee is in a clear position under the Act in that the deductions or non-payments if not claimed in the six month period fall by the wayside. Accordingly an employee’s claim is always limited to six months.
It would be somewhat extraordinary if the Act envisaged or permitted a situation where an employer could make fresh and new deductions to an employees salary and after 6 months be immune from any action by the employee under the Act and therefore be free to continue to contravene legislation with no consequences for the duration of an employees service.
The Tribunal has jurisdiction to hear the appeal under the Payment of Wages Act, 1991.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)