EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Dara Residential Limited PW740-PW743/2012
against the recommendation of the Rights Commissioner in the case of:
Mary McNamee (respondent a)
Doreen Doyle (respondent b)
Sheila Kelly (respondent c)
Rachel Gorey (respondent d)
under
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr G. Hanlon
Members: Mr J. Horan
Mr P. Trehy
heard this appeal at Dublin on 25th February 2014
Representation:
_______________
Appellant: IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
Respondent: James O’Donohoe, Bowman McCabe Solicitors, 5/6 The Mall, Lucan, Co Dublin
This case came before the Tribunal by way of an employer appeal of the Rights Commissioner. Decision refs: r-108293-pw-11/JT, r-108268-pw-11/JT, r-108280-pw-11/JT and r-108257-pw-11/JT under the Payment of Wages Act 1991.
Determination: respondents a and b
The Tribunal heard evidence from the employer. There was no attendance or representation on behalf of the respondent employees a and b.
The employer’s appeal of the Rights Commissioner decision refs: r-108293-pw-11/JT and r-108268-pw-11/JT under the Payment of Wages Act 1991 succeeds therefore upsetting the decision of the Rights Commissioner.
Employees’ case:
The respondent’s c and d (the employees) work in an industry that is funded by the HSE by 98%. The balance is made up by fundraising. It was the employees’ contention that there was a deduction from their pay on a weekly basis from early 2010 and that this deduction was made without their prior written consent contrary to the provisions of Section 5:1(c) of the Payment of Wages Act, 1991. They both told the Tribunal that they were not consulted prior to the deduction and did not sign anything agreeing to this cut in wages.
Employer’s case:
The C.E.O for the appellant told the Tribunal that all staff, at their own request, are aligned to HSE basic pay scales since 2003/2004. There was never any objection to the alignment and all annual increments and any back pay in accordance with the HSE (towards 2016 pay agreement) were paid over the preceding years to the employees. The 2009 budget indicated a cut in funding of 5.5%. That is how and why the pay was adjusted and the alignment to HSE pay rates continued.
In June 2010 the CEO received a letter from the full time employees disagreeing with the rates of pay, he checked and was able to confirm that the hourly rate paid was in fact in accordance with the HSE. Staff were all advised accordingly.
Determination: respondent’s c and d
The Tribunal is satisfied that it was a condition of pay that the respondents were aligned to HSE pay scalesfor a considerable number of years. The Tribunal cannot find for the employees against the employer in this case. Consequently the Tribunal overturns the decision of the Rights Commissioner given on the 04th October 2012 and the appeal under the Payment of Wages Act, 1991 succeeds.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)