EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Celina Jakubiak – appellant PW326/2013
against the recommendation of the Rights Commissioner in the case of:
Laurel Enterprises Limited t/a Centra – respondent
under
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates B.L.
Members: Mr J. Horan
Mr J. Dorney
heard this appeal at Dublin on 18th March 2014
Representation:
Appellant: Mr Blasej Nowak of Polish Consultancy Enterprise,
107 Amiens Street, Dublin 7
Respondent: Mr Padraig Gibbons of Rochford Gibbons Solicitors,
16/17 Upper Ormond Quay, Dublin 7
This case came before the Tribunal by way of an appeal by an employee against a decision of the Rights Commissioner under the Payment of Wages Act, 1991 ref r-127946-pw-12/JC
The decision of the Tribunal was as follows:
Appellant’s Case
The appellant’s representative told the Tribunal that the appellant had been on short time for a period of 10 weeks during which her employer provided her with less than 30 hours work a week. This was followed by a 4 week period of lay off. The appellant sought payment for the time she should have been working. The appellant had no contract of employment, and submitted that the respondent had no contractual basis for withholding pay when she was on short time or lay off.
The appellant gave evidence. She started working for the respondent in October 2011 covering maternity leave. She worked between 30 and 35 hours a week. In 2012 her hours reduced and continued to reduce.
The respondent gave her a letter in February 2012 stating that she worked between 25 and 28 hours per week. The appellant needed this letter to apply for rent allowance. The appellant was unhappy with her hours, wages and pay but she did not discuss her concerns with the respondent.
The appellant stated that she applied for social welfare benefits when she was placed on lay off. However the respondent produced a letter from social welfare stating that the appellant applied for and received benefits in July 2012 while she was on paid annual leave.
In September 2012, the respondent’s manager sent a text message to the appellant asking her to attend a day’s training. Later the training was cancelled. There was no mention of a return to work.
Respondent’s Case
The respondent’s manager gave evidence. She gave the appellant a contract of employment when she started work and a revised contract in January 2012. The appellant did not sign and return either contract.
In early 2012 the respondent significantly reduced the premium paid for weekend working. The appellant was not interested in working Sundays thereafter and as the appellant would not work Sundays her hours at work reduced.
The appellant was laid off for August 2012. The respondent’s business is a shop close to a school. During the school holidays there is a substantial drop in business at the delicatessen counter and as a result the appellant was laid off until the school reopened.
The manager did send the appellant a text message asking her to attend training and again to inform her that the training had been postponed. She also expected the appellant to return to work at this time. The appellant told the manager that she would be better off on benefits than working 25 hours a week.
Determination
The appellant’s appeal under the Payment of Wages Act related to 2 periods,
(a) A period of short time during which the appellant claimed a shortfall of 77 hours between 15 May and 02 August 2012
(b) Payment for a 4 week period of lay off during August 2012.
The respondent submitted correspondence dated 10 February 2012 which the appellant accepted that she received stating that her hours would be 25 – 28 per week. It was also agreed that the appellant received further correspondence dated 31 July (2012) informing her of a period of lay off from 6 August until further notice. The respondent’s expectation being that business would pick up in September and the appellant would return to work.
However appellant was not available for work after that date.
The Tribunal has carefully considered the evidence of both parties and the submissions made by both representatives. The Tribunal is of the view that the custom and practice within the retail industry does not provide for payment during periods of lay off. The Tribunal is also of the view that the hours worked by the appellant for the earlier period 15 May to 02 August 2012 were in line with the letter of 10 February 2012.
Accordingly the appeal relating to “short time” and to “lay-off” 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)