PW790/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                        CASE NO.

Thomas Heffernan

- appellant                                                                                                                    

                                                                                                                                   PW790/2012

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

Dan Dooley Group Limited - respondent

under

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr J. Lucey

Members:     Mr. W. O'Carroll

                    Mr F. Dorgan

heard this appeal at Limerick on 1st September 2014

Representation:

_______________

Appellant(s) :         Mr. Ronan Kennedy, Kennedy Frewen O'Sullivan, Solicitors,

                                St Michael Street, Tipperary Town, Co Tipperary

Respondent(s) :     In Person (Director of respondent company)

This case came before the Tribunal by way of an appeal by the employee (appellant) against the decision of the Rights Commissioner reference: (r-125021-pw-12/GC) under the Payment of Wages Act, 1991.

Summary of Case

The appellant was employed as truck driver by the respondent car rental company from in or around 1982. He had a break in his service from 1998, returning to the company in August 2004 until the cessation of his employment in December 2012.

The Tribunal heard evidence that he generally worked for 9 months of each calendar year. He did not work at all during the first 3 months of each calendar year. This arrangement was by agreement of both parties. His contracted weekly working week was 40 hours per week. During the busy Summer months he regularly worked in excess of 40 hours per week. He was paid €502 per week irrespective of whether or not he worked in excess of 40 hours per week. He continued to receive €502 per week during the first three months of each calendar year even though he did not work during these months. This payment was made in lieu of the extra hours he worked during the Summer months and was done by agreement of both parties.

He was placed on a 3 day week for two periods of his employment in 2009 and 2012 due to a shortage of work brought about by American flights becoming predominantly Dublin bound. In that regard the respondent company gave evidence that the main company business was transferred to Dublin. Following the imposition of the 3 day working week his weekly wage was reduced accordingly and he was paid €301.20 for his 3 day working week. He did not accept the imposition of a 3 day week and was constantly seeking a return to 5 days per week. He gave evidence that the company hired an independent contractor to carry out similar duties to that which he carried out while he continued to work a 3 day week.

Determination

The Tribunal is satisfied that the appellant was paid for all hours worked and finds that there was no deficit of wages as provided for in section 5 (6) of the Payment of Wages Act. The Tribunal is satisfied that the appellant was in receipt of all wages which were properly payable to him in accordance with the Payment of Wages Act.

In those circumstances the Tribunal dismisses the appeal and upholds the decision of the Rights Commissioner.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)