PW655/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                            CASE NO.

                                                                                                                        PW655/2012

Ray Malanaphy           -           appellant

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

Minister of Transport, Tourism & Sport     -     respondent

Under

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:        Ms N. O’Carroll Kelly BL

Members:        Mr J. O’Neill

Mr. T. Brady

heard this appeal at Dublin on 2^nd April 2014.

Representation:

Appellant:                   In person

Respondent:                Mr. John Browne Department of Transport,

                                    Tourism & Sport, 25 Clare Street, Dublin 2

                                    Mr. Dick Davis, Department of Transport,

                                    Tourism & Sport, 25 Clare 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-1118420-pw-11/JT).

The decision of the Tribunal was as follows:-

Determination:

The appellant was appointed as Coastal Unit Sector Manager (CUSM) on the 19^th October, 2009. He took over the position when those previously in the position were promoted. He stated that since taking up the position he was not paid a shift allowance, on call allowance, Increments, Sunday Supplement which his predecessors, who were of the same grade ( he alleged) were paid. The appellant argued that the total amount of wages paid to him by the Respondent was less than the total amount due to him and therefore was in breach of Section 5 (6) of the Payment of Wages Act 1991.

The Respondent argued that at the material time CUSM was not graded and therefore didn’t come within the scope of the agreement. Furthermore it was argued that the appellant’s contract was silent on the issue and therefore the appellant knew or ought to have known that the various allowances and increments were not included in his contractual pay. The appellant stated that prior to accepting the role he carried out his due diligence and in doing so he spoke to those who previously carried out the position and to the Director himself. He was satisfied having carried out his enquires that all of the above mentioned allowances and increments were to be paid as part of the package. He stated that he had a legitimate expectation in relation to the payments and that expectation was formed based on the information supplied to him by the Director and by the precedent set by payments made to his predecessors.

The Tribunal is satisfied that the appellant carried out the same role as his predecessors albeit it was given a different title, which said title was not graded. It is fundamentally unfair to deny the appellant like payments for like work solely based on the premise that the newly named position was not yet graded. He had a legitimate expectation that the payments would be made and that legitimate expectation the Tribunal finds is well founded. The Tribunal finds that there was a breach of the appellant’s implied contractual terms and as a result of that breach Section 5 (6) of the Payment of Wages Act was breached.

The claimant lodged his claim on the 24^th August, 2012, Section 6 (4) of the Act states:-

“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.”

The appellant argued that because the breach was ongoing he was not obliged to lodge a claim every six months pursuant to Section 6(4). It is well established in law that it is exactly because the contravention is ongoing that the claim must be lodged every six months. The Tribunal finds that in principle the appellant is entitled to his shift allowance, on call allowance and Sunday supplement and increments however, the appellant only lodged one claim on the 24^th August, 2012 and this Tribunal can only hear and make a determination for the six month period prior to the date of the lodgement. The effect of Section 6(4) is to limit the Tribunal’s jurisdiction to hear claims to a period of 6 months prior to the date of each lodgement of the claim. The Department is not so constrained by section 6(4) as it only applies to the Rights Commissioners and Employment Appeals Tribunal’s jurisdiction. The increments when paid should be calculated in accordance with current custom and practice.

Accordingly the Tribunal awards the appellant his shift allowance, on call allowance, Increments, Sunday Supplement for the period 24^th February 2012 to 24^th August 2012.

The Tribunal upsets the decision of the Rights Commissioner under the Payment of Wages Act, 1991.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

              (CHAIRMAN)