PW774/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                CASE NO.

                                                                                                            PW774/2012

Employer         -           appellant

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

Employee        -           respondent

and

Employer         -           appellant

under

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. McGrath B.L.

Members:     Mr D. Peakin

                    Mr S. Mackell

heard this appeal at Dublin on 27th February 2014

Representation:

____________

Appellant(s):

             Mr. Kevin Maguire BL instructed by Mr. Patrick J. Ryan, Ryan & Ryan, Solicitors

           5 St Brigid's Road, Clondalkin, Dublin 22

Respondent(s):

             Mr Dave Curran, SIPTU Liberty Hall, Dublin 1

The decision of the Tribunal was as follows:-

This case came before the Tribunal by way of an employer appealing the decision of the Rights Commissioner dated 8 November 2012 reference r-123752-pw-12/RG.

For clarification purposes the appellant shall be referred to as the employer and the respondent as the employee.

Determination

The Tribunal has carefully considered the matter raised before it. These proceedings came before the Tribunal on foot of an appeal from the Rights Commissioner dated the 6^th December 2012 wherein the employee was awarded a sum of money under the Payment of Wages Act, 1991 arising out of what was perceived to have been an unlawful deduction from wages over a period of time between February and June 2012.

The employer has asked the Tribunal to deal with a preliminary legal point before moving to the substantive matter.

Only the barest of facts were made known to the Tribunal by the representatives acting for and on behalf of each of the parties. The Tribunal did not hear any oral evidence.

In essence it seems that the respondent an employee of over twenty years had no notice of the fact that the employer was reducing his working hours in half and was reducing his pay in accordance with this decision.

There was no consent sought and no consultation process leading up to this point.

The Tribunal has been asked to consider the Judgement of Mr. Justice Edwards delivered on the 30^th day of November 2010 in the case of Michael McKenzie and the Permanent Defence Forces Other Ranks Representative Association and the Minister for Finance, The Minister for Defence, Ireland and the Attorney General Record No. 551JR/2009 as being the leading and only authority on whether the Payment of Wages Act of 1991 has any application in circumstances such as these.

The Tribunal accept that the distinction between a ’reduction’ in wages and a ‘deduction’ from wages, while subtle is relevant for determining whether the Payment of Wages Act of 1991 can have any application.

The Tribunal accepts that the employee's wages were reduced in line with the reduced number of hours he was required to work. This does not amount to an unlawful deduction as envisaged should be prevented in the Payment of Wages Act, 1991

The Tribunal recognises that from time to time an employer seeks to reduce wages and that it may well be that a course of action arises out of this action but the Tribunal does not find there is a breach of the Payment of Wages Act and fully accept the finding of Judge Edwards in this regarding where he stated “The Act has no application to reductions as distinct from ‘deductions’.”

The Tribunal therefore sets aside the appeal of the Rights Commissioner and the employer’s appeal under the Payment of Wages Act, 1991 succeeds.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)