EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO:
PW397PW400/2011
Cork Rape Crisis Centre Limited - appellant
Against the recommendations of the Rights Commissioner in the case of:
Wendy Knott - respondent 1
Josephine O’Sullivan-Linehan, - respondent 2
Cathy O’Mahony, - respondent 3
Karen Donegan, - respondent 4
under
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. S. McNally
Members: Mr. D. Hegarty
Ms. P. Doyle
heard this case in Cork on 5 November 2013 and 24 February 2014
Representation:
______________
Appellant: Mr. David Pearson, G.J. Moloney, Solicitors,
City Quarter, Lapps Quay, Cork
Respondent:Ms. Marie Corcoran, HR Consultant,
12 Heywood Heights, Clonmel, Co. Tipperary
This case came before the Tribunal by way of an employer appeal of the Rights
Commissioner Decisions ref: pw81411/09/MR, pw81418/09/MR, pw81415/09/MR and pw14721/09/MR under the Payment of Wages Act, 1991. As this is an employer appeal, hereinafter the appellant shall be known as the employer and the respondents the employees.
Background
Neither the respondent representative nor the appellant representative was on record at the time of the initial complaint to the Tribunal. Consequently neither representatives are in a position to comment on whether Section 7(2)(b) of the Payment of Wages Act 1991 was complied with.
The respondent is a registered charity that relies on funding from the HSE and private donations to operate its business. The staff pay scales are in line with the appropriate HSE graded salary scale.
This case centres on the non-payment of increments due to the employees; the Rights Commissioner found in the employees favour. All of the employees present at the hearing (no appearance by respondent 4) confirmed their start and finish dates and when they received their last increments.
Section 6(4) of the Payment of Wages Act, 1991 states that,
‘A rights commissioner shall not entertain a complaint under this section unless it is presented to him within the period of 6 months beginning on the date of the contravention to which the complaint relates or (in a case where the rights commissioner is satisfied that exceptional circumstances prevented the presentation of the complaint within the period aforesaid) such further period not exceeding 6 months as the rights commissioner considers reasonable.’
In the case of respondent 2, she received her last increment in 2007 at point 3 of the scale, respondent 3 also received her last increment in October 2007. Respondents 1, 2 and 3 made their complaints to the Rights Commissioner in May 2009.
The case adjourned to 24 February 2014. The parties were engaged in settlement talks. They were instructed to notify the Tribunal if they were successful.
At the 24 February 2014 hearing the appeals were no longer contested by Respondents 1 and 4. The employer’s representative furnished copy correspondence to show that the appeal notice had been copied to the individual respondent employees such that S. 7 (2)(b) of the Act was complied with.
Regarding S.6 (4) of the Act, the employees’ representative submitted that there had been exceptional circumstances in that there had been negotiations and LRC conciliation. It had been expected and hoped that all could be resolved. However, the matter was eventually referred to a Rights Commissioner. It was requested that the Tribunal uses its discretion after the trauma undergone.
Determination:
The Tribunal considered in detail the circumstances as presented. The Tribunal determined by a majority (Ms. Doyle dissenting) that the exceptional circumstances outlined did not constitute exceptional circumstances such that they had the effect of preventing compliance with the Act and, therefore, that the employer’s appeals under the Payment of Wages Act, 1991, succeed.
Dissent of Ms. Doyle:
In recording my dissent in this case, I am mindful of two issues.
- A highly experienced Rights Commissioner found in favour of the claimants on 19th August 2011. The Employer does not appear to have advanced the argument on exceptional circumstances there.
- At the EAT hearing on this preliminary issue, the Tribunal was advised that the company had been engaged in direct communication with its primary funder from October 2008 to May 2009. During this period, the employees received a myriad of communications from their Employer wherein the payment of increments and their subsequent deferral was commented on by the Employer but does not appear to have been definitively defined as refusing to pay.
During this period the employees appear to have had an expectation of a local settlement. Therefore, I contend that both the delay in defining the actual refusal to pay coupled with the protracted efforts to resolve the issue constitute exceptional circumstances as provided for in Section 6(4) of the Payment of Wages Act, 1991.
Conclusion
Therefore, the Tribunal determined by a majority (Ms. Doyle dissenting) that the employer’s appeal under the Payment of Wages Act, 1991 succeed.
Sealed with the Seal of the
Employment Appeals Tribunal
This _________________________
(Sgd.) ________________________
(CHAIRMAN)