PW379/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                            CASE NO.

Employer                                                                                                                    PW379/2012

against the recommendation of the Rights Commissioner in the case of:

Employer

under

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms N. O'Carroll-Kelly B.L.

Members:     Mr M. Carr

                 Mr O. Nulty

heard this appeal at Monaghan on 28th November 2013

Representation:

_______________

Appellant:       Richard Grogan & Associates, Solicitors, 16 & 17 College Green, Dublin 2

Respondent:    Rep

Background:

This case came before the Tribunal by way of an employee appeal of the Rights Commissioner decisions ref: r-099795-pw-10EOS.

The appellant’s representative informed the Tribunal that the appellant was seeking to be paid in full for periods he was on laid- off, amounting to five weeks.The appellant did not have a contract of employment and therefore his terms and conditions do not include a provision for not paying him in the event of lay-off. During the period of lay-off the employee/employer relationship continued and the employer is required to pay the appellant. The appellant did not consent to not being paid. Therefore it can be argued that his non-payment amounts to a 100% deduction.

The respondent contended that any lay-off was temporary. One period claimed by the appellant was from 15^th – 19^th March 2010. He got 3 days wages and two days holidays for his week. This was not contested by the appellant or his representative.  

Determination:

The Tribunal has carefully considered all of the evidence adduced together with the documentation handed in during the hearing. The claimant was placed on temporary lay-off for periods between 1^st February 2010 and 16^th April 2010. He was not paid during that lay-off period. The claimant did not have a written contract of employment nor was he given any terms of his employment. The claimant states that he is entitled to his pay for the period he was on lay-off as he did not consent to the deduction either verbally or in writing. Furthermore, he states that the deduction made to his wages was unlawful.

Section 11 of the Redundancy Payments Act 1967 states

(1)      where an employee’s employment ceases by

          reason of his employer’s being unable to provide the work for which the employee

          was employed to do, and-

(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.

It is clear from the facts submitted that the respondent was of the belief that the cessation of employment would not be permanent. That in fact was the case. Therefore, Section 11 (1) (a) is satisfied. The respondent did give notice to the claimant prior to the period of lay-off and therefore Section 11 (1) (b) is satisfied.

The question the Tribunal must answer is whether or not by virtue of the employer having invoked Section 11 of the 1967 Act the employee’s contractual and statutory right to pay during that period of lay-off is suspended. No evidence was produced before the Tribunal in relation to the custom and practice of the respondent. However, it can be said that generally throughout this country the custom and practice is that lay-off will be without pay. That custom and practice has existed since the coming into force of the Redundancy Payment Act.

The Tribunal finds that when Section 11 is genuinely invoked and the employer satisfies Section 11 1 (a) and (b) then, the contract of employment is temporarily suspended and there is no right to payment during that period. Furthermore, the Tribunal finds that there is a notorious custom and practice in this jurisdiction that employees will not be paid during a period of lay-off.

The appeal against the decision of the Rights Commissioner under the Payment of Wages Act 1991 fails. The decision of the Rights Commissioner is upheld.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)