EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
PW17/2014, TE17/2014 – appellant 1
PW18/2014, TE18/2014 – appellant 2
APPEALS OF:
Maureen Deans – appellant 1
Eoin Deans – appellant 2
against the recommendation of the Rights Commissioner in the case of:
OCS Operations Limited T/a Clerys – respondent
under
PAYMENT OF WAGES ACT 1991
TERMS OF EMPLOYMENT (INFORMATION) ACTS 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey BL
Members: Mr A. O’Mara
Ms M. Mulcahy
heard this appeal at Dublin on 25th May 2015
Representation:
Appellants: Mr John Deans, 33 Abbey Court, Clara, Co. Offaly
Respondent: Mr Eamonn McCoy of IBEC, Confederation House, 84 – 86 Lower Baggot Street, Dublin 2
The decision of the Tribunal is as follows:
These cases came before the Tribunal as appeals by two employees of the recommendations of the Rights Commissioner under the Terms of Employment (Information) Acts 1994 – 2001 and under the Payment of Wages Act 1991 reference numbers r-132323-te-13/JT, r-132327-te-13/JT, r-132325-pw-13/JT and r-130478-pw-13/JT.
Appellant 2’s Case
He told the Tribunal that when he started working for the respondent, a large department store, he was not given a contract of employment. In the beginning he worked part-time but by 2006 he was working full-time in the Kitchen Department. While there he was paid commission on sales as well as his wages. Later he transferred to the Menswear Department. In 2007 he moved house and requested to work Monday to Friday. He was offered a choice of 28 hours a week on the shop floor or 37½ hours in goods inwards. He opted for goods inwards but he was told that he would no longer receive shared commission payments.
When cuts were made in 2009 appellant 2 was informed by management that he had a 6 hour contract but he was never shown such a contract. SIPTU represented the employees including appellant 2 when the cuts were negotiated. He and most of his colleagues were laid off for a period when the store roof collapsed.
When the transfer of undertaking happened, appellant 2 was represented by MANDATE. He was offered a 22½ hours per week contract on the basis that that had been his previous contract. Appellant 2 felt that he was entitled to a contract for 37½ hours per week. There was a meeting to discuss the new Employee Handbook and appellant 2 was not in favour of its acceptance.
Appellant 1’s Case
She told the Tribunal that worked 37½ hours a week at one time. At her request her hours were reduced to 22½ in 2007 and in 2008 she worked 22 hours a week over 4 days. Then in 2011 her hours increased to 30 hours over 5 days, and she was told that her hours would increase when overall cuts were reversed. For her this only happened after the store reopened.
After the transfer of undertaking, appellant 1 was given a contract that specified a 22 hour working week. Appellant 1 feels that she should have a contract for 37½ hours a week. She accepted that MANDATE had represented her during the transfer of undertaking. She is now in dispute with MANDATE.
The respondent’s representative submitted that appellant 1 could not make an appeal to the Tribunal under the Terms of Employment (Information) Acts 1994 to 2001 because she did not first bring this claim to the Rights Commissioner.
The respondent had fulfilled the requirements of the transfer of undertaking legislation. Flexibility was expected from employees while the respondent was fighting to save the business.
Determination
The Tribunal carefully considered the evidence adduced and the submissions made in this case. Clearly the working environment had changed significantly for the appellants over the years and they are both generally unhappy with the changes. At the same time trading conditions have been difficult for the respondent who had the responsibility to keep the store going and look after a large workforce.
The evidence adduced by the appellants did not demonstrate any breach of the transfer of undertakings regulations. The appellants were consulted through their trade union prior to the transfer and their contracts of employment were not altered during the protected period. Accordingly the Tribunal has no basis for altering the recommendation of the Rights Commissioner. The appeals under the Terms of Employment (Information) Acts 1994 and 2001 fail and the recommendations of the Rights Commissioner are upheld.
The appeals under the Payment of Wages Act 1991 relate to pay the appellants are seeking in compensation for periods during which they were involuntarily working shorter hours than they felt that their contracts provided for. Working reduced hours constitute a reduction in wages and not a deduction and therefore is not covered by the Payment of Wages Act. These appeals also fail and the recommendations of the Rights Commissioner are upheld.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)