PW142/2013

EMPLOYMENT APPEALS TRIBUNAL

APPEAL OF:                                                                                                                        CASE NO.

                                                                                                                                              PW142/2013

Western Care Association,

(The Employer)                                                                                                                   

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

Ann Marie Durcan,. (The Employee)

under

PAYMENT OF WAGES ACT, 1991

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms E. Daly B.L.

Members:     Mr T. Gill

                    Mr T. Gill

heard this appeal at Castlebar on 3rd September 2014

Representation:

Appellant: Mr. John Brennan, IBEC, Ross House, Victoria Place, Galway

Respondent: Mr. Paul Hardy, SIPTU, Forster Court, Galway

This case came before the Tribunal by way of an appeal by the Employer against the decision of the Rights Commissioner Ref: r-121340-pw-12/EOS

Background:

It was common case that the employee was placed on suspension with pay from 3^rd September 2011 to 20^th February 2012. During this time the employee was paid her basic rate of pay.

The claim under the Payment of Wages Act, 1991 by the employee was on the basis that the employer made deductions from her pay in breach of this Act by withholding certain premium payments during her suspension. The employee held that these payments were part of her normal wages and she was therefore entitled to receive these while on paid suspension

However the employer contended that these payments were only due to be paid when an employee worked during certain times that attracted these premium payments and as the employee did not work during these specified times she was not entitled to the associated premium payments. The employer acknowledged that the contract of employment was silent with regard to paid suspension being at basic pay but referred to the employee handbook in respect of the circumstances in which premium payments were made.

The employer also told the Tribunal that it was long accepted by the union that employees did not receive premium payments while on paid sick leave or maternity leave.

Determination:

The Tribunal carefully considered the submissions and documents adduced at the hearing. The issue was whether the non-payment of certain premium payments while the employee was on paid suspension constituted an illegal deduction from pay.

The contract of employment refers to suspension with pay but does not specify that this is basic pay excluding premium payments. There is no express term governing whether premium payments are made during a period of suspension. However there is no need to specify this in the contract as the employee hand book is clear on the nature of premium payments ie. That these payments are made in respect of unsociable hours worked eg. Sunday or late nights.

During her suspension the employee did not work any hours which attracted premium payments and therefore is not entitled to such premium payment. Accordingly the Tribunal upsets the decision of the Rights Commissioner Ref: r-121340-pw-12/EOS and finds that there was no breach of the Payment of Wages Act, 1991.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)