EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
EMPLOYEE – appellant PW239/2011
v
EMPLOYER – respondent
Against the recommendation of the Rights Commissioner in the case of:
EMPLOYEE
V
EMPLOYER
Under
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire B.L.
Members: Mr J. Horan
Mr M. O'Reilly
heard this appeal at Dublin on 25th October 2013
Representation:
_______________
Appellant(s): Mr Richard Grogan
Richard Grogan & Associates,
Solicitors
16 & 17 College Green, Dublin 2
Respondent(s): Mr Tiernan Doherty
IBEC
Confederation House
84-86 Lower Baggot Street, Dublin 2
This case came before the Tribunal by way of an employee appealing the decision of a Rights Commissioner under the Payment of Wages Act, 1991, ref: r-100007-pw-10/GC.
Background:
The appellant was employed by the respondent as a cleaner from 10th March 2010 to fulfil a contract to clean the Aviva stadium in preparation for its opening. On the 14th May 2010 the contract came to an end and the appellant and her colleagues, 120 in total, were put on lay-off. The appellant contends that she was not properly notified of the lay-off.
The appellant’s representative argued that the appellant was entitled to be paid during the lay-off as the respondent did not comply with the Act by notifying the appellant that the lay-off wouldbe temporary. Whether the lay-off was effective under the Act was the question. The appellant’s representative accepted that if found to be effective the appellant was not entitled to payment during the lay-off period.
The appellant gave evidence that at lunchtime they were told they would be contacted about when to come to work again. No one spoke to her directly. She did not recall who said what exactly. She did not attend for work the following Monday as no one contacted her. All the employees were together in the canteen eating pizza. She did not receive any correspondence from them. The appellant since moved to the UK. She agreed that she had signed a contract of employment.
The managing director was not present at the meeting but gave evidence that she instructed one of her supervisors to inform all the staff of the lay-off and that they hoped to find other work for them as other contracts were coming up. The respondent company attempted to contact the appellant by phone and in writing in regard to other work but she did not respond. They wanted the appellant to return as she worked well under pressure and could speak English. The contract of employment allowed for non-payment during lay-off periods. The witness was satisfied that the appellant was informed of the lay-off.
In regard to lay-off section 11 of the Redundancy Payments Act, 1967, states:
(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and
(b) the employer gives notice to that effect to the employee prior to the cessation,
that cessation of employment shall be regarded for the purposes of this Act as lay-off.
Determination:
The Tribunal has considered the case-law opened by the appellant, and notes that in Industrial Yarns Ltd. V. Leo Greene and Arthur Manley [1984] ILRM 15 at page 21, Costello J. stated that “If there is no contractual power (express or implied) in the contract of employment to suspend the operation of the contract for a limited period then by ceasing to employ an employee and refusing to pay him wages the employer has been guilty of a serious breach of the contract amounting to a repudiation of it.” The corollary of this is that where there is such a provision, whether express or implied by statute or custom and practice, it is permissible to suspend the operation of the contract for a limited period.
Having heard the evidence given, the Tribunal finds that the appellant was told on the Friday when the contract finished that she was being laid off and that the company hoped to find work for her shortly. There was a provision that allowed for unpaid lay-off in the terms and conditions of employment provided to the appellant and signed and dated by her on 10 March 2010.
In this case, therefore, there was a provision such as that referred to by Costello J. above, the appellant was laid off pursuant to that provision, and no money is payable.
The appellant submitted that the statutory requirements for lay-off must be met, even where there is a contractual provision, or else the appellant is required to be paid. The Tribunal does not agree with this submission, and indeed the language of Costello J. reflects the fact that the parties to an employment contract are allowed to agree the provisions of a lay-off such as in this case.
The Tribunal is also not satisfied at all that in any event, there is a requirement to pay employees on lay-off pursuant to the statutory provisions, but it is not necessary to determine this given the findings of the Tribunal above.
Section 11 of the Redundancy Payments Act
Given the conclusions above, the Tribunal does not need to determine the issues raised by the appellant in relation to section 11 of the Redundancy Payments Act, but it may be helpful to do so in any event. The appellant advanced an interpretation of section 11 of the Redundancy Payments Act that the Tribunal does not agree with. The interpretation of s. 11 of the Redundancy Payments Act advanced by the appellant was that the notice to be given to the employee under subsection 11(1)(b) is notice of the employer’s reasonable belief that the cessation will not be permanent, i.e. notice of the provision of subsection 11(1)(a). The Tribunal does not agree with this interpretation.
The Tribunal finds that the clear reading of the section is that there is a requirement to give notice to the employee to the effect of the employer being unable to provide work for which the employee was employed, i.e. the principal requirement of subsection 11(1). If the provision in relation to notice was to apply to subsection 11(1)(a), and to be notice of the employer’s reasonable belief that the cessation will not be permanent, it would have been included in that subsection rather than put into a separate subsection. Therefore, the Tribunal finds that the notice given to the appellant was more than sufficient to satisfy the requirements of the Act if there had been no contractual provision in relation to unpaid lay-off, in that it notified her that there was no work at the moment for her, but that it was hoped in the near future that there would be.
The Tribunal also finds that, in any event, the belief that the company would have work in the near future was reasonable, having considered all of the evidence. Accordingly the Tribunal upholds the decision of the Rights Commissioner ref: r-100007-pw-10/GC.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)