EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
PW751/2012
Dunnes Stores,
against the recommendation of the Rights Commissioner in the case of:
Elzbieta Kolacin,
under
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Ryan
Members: Mr D. Peakin
Ms N. Greene
heard this appeal at Dublin on 8th January 2014
Representation:
_______________
Appellant: Byrne Wallace, Solicitors, 88 Harcourt Street, Dublin 2
Respondent: Conor O'Toole, Solicitors, Unit 2, First Floor, Moorefield
Business Centre, Moorefield Road, Newbridge, Co Kildare
This case came before the Tribunal by way of an appeal by the employer (appellant) against the recommendation of the Rights Commissioner (r-123037-pw-12/JT) under the Payment of Wages Act 1991.
Background:
A representative for the appellant told the Tribunal of two fundamental issues with the Rights Commissioners decision. Firstly, that claim was out of date and secondly that an award made to the respondent under the Terms of Employment Information Act should encompass any loss under the Payment of Wages claim. It was common case that the respondent had a contract under the heading of Sales Assistant from her initial day of employment.
Respondent’s case:
The respondent gave evidence of beginning work in 2006. The contract that she signed stated that she was a sales assistant and she just did what she was told. In 2007 she was asked to work in the canteen where she cooked, sold food and cleaned until it closed in 2008. After the closure of the canteen she was asked to help with cleaning in the store. Sales Assistant wages went up but hers remained the same. Nobody had asked her to be a cleaner and she said that wages were wages and contracts were contracts. When she discovered the anomaly she initially asked for clarification from EK and later contacted her union to peruse a case under the Terms of Information Act which was successful. After the decision she was presented with a new contract which she refused to sign.
Under cross examination she said that she hadn’t taken a case for Payment of Wages to the Rights Commissioner because her union advised her to take one case first and if she won it then take the second one. She waited a long time on the first decision and then put in this claim. She was unsure of dates but went to EK in personnel on two or three occasions and was told that “the computer said she was a cleaner”. She considered herself a sales assistant, nobody had told her anything to the contrary and while she agreed to do cleaning she never agreed to become a cleaner.
Appellant’s case:
EK and ES for the appellant told the Tribunal that the cleaning contract rates would have been higher for the respondent up to 2009 but the sales assistant increments then went ahead of her rate after that. It was untrue that the respondent gradually became a cleaner. ES told her that she was a cleaner since 2006 and on the correct rate of pay for that position.
Determination:
The Tribunal notes that the respondent commenced employment with the applicant in 2006 and her contract of employment described her position as that of Sales Assistant. A subsequent contract of employment also described her as a Sales Assistant. The Tribunal is satisfied from the evidence given that the respondent worked as a cleaner notwithstanding the incorrect description of her position.
The respondent was aware of the fact that she was a cleaner since 2008 and indeed notes that she described herself as such in her self-assessment forms.
Section 6 (4) of the Payment of Wages Act 1994states:
“A Rights Commissioner shall not entertain a complaint under this section in relation to a reduction or payment referred to in subsection (2) at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment”.
In the unique circumstances of this case the Tribunal is satisfied that the claimant was aware that she was not being paid as a sales assistant since 2008. Arising from this fact she was being paid on a lower scale, that of cleaner. The respondent should have brought a claim under the Payment of Wages Act 1994 within 6 months (or where exceptional circumstances exist within a further period of 6 months as the Rights Commissioner thinks reasonable) of becoming aware of the contravention.
Since the respondent’s claim was lodged with the Rights Commissioner on the 24th May 2012 the Tribunal does not have jurisdiction to hear the appeal.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)