EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF: CASE NO.
William Daly PW324/2014
-appellant 1
Noel Cavanagh PW325/2014
-appellant 2
Enda Hanlon PW326/2014
-appellant 3
Paul McMahon PW327/2014
-appellant 4
Shane Redmond PW328/2014
-appellant 5
against the Decision of the Rights Commissioner in the case of:
South Dublin County Council - respondent
under
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr M. Carr
Mr J. Maher
heard this appeal at Dublin on 13th January 2016
Representation:
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Appellants: Mr Brendan O'Sullivan, BATU, 13 Blessington Street, Dublin 7
Respondent: In Person
Summary of Evidence
The appellants worked for the respondent as bricklayers; they are the only 5 employees that are members of the BATU union. A dispute arose between the supervisors in the depots (SIPTU members) and the respondent around new reporting structures. This dispute spread to the general depot workforce cumulating in a work stoppage on the 6th and 7th of November 2013.
It is the appellants’ case that they presented for work at the depot. It was normal procedure that a supervisor or foreman would allocate the days work in the morning unless there was an ongoing job; this work could be anywhere in South County Dublin. A completed SSW form had to be issued by the respondent to the appellants each day before they could commence their work. The appellants, as bricklayers also needed the assistance of the general operatives to carry out their work. As the supervisors and the general staff were all involved in the work stoppage the appellants were not allocated any work on the given days. There were additional managers available to allocate the appellant’s work but they did not on those days. In absence of any instruction except a ‘general instruction’ to work they cleaned their storage areas and around the yard. They were available to work at all times.
The respondent maintains that the appellants were not available to work as they were involved in the dispute. The respondent gave a ‘general instruction’ for everyone to work. There were supervisors and management available who were not involved in the dispute to allocate the appellants work on those days.
As a result of the work stoppage a letter issued to all involved from the respondent notifying them that their wages would be deducted by the appropriate amount. The BATU official representing the appellants sought a meeting with the respondent to dispute the appellants’ involvement in the stoppage. This request was not acceded too.
The respondent, in an effort to resolve matters, met with the Secretary of the Group of Unions (BOB). They agreed that all the staff subject to the deduction could work on a Saturday to make up the difference in pay. BOB was the also the SIPTU representative. The respondent wrote to BOB in his capacity as secretary of the Group of Unions stating,
‘The Council are agreeable to afford your affected members an opportunity to work additional hours pro rata to the amount of hours deducted from them…Can you please immediately confirm by return, in your capacity as Secretary of the Group of Unions, your member’s willingness to comply with the above.’
BOB responded to this letter accepting the terms in his capacity as Industrial Organiser for SIPTU. The Chairman of the Group of Unions was from BATU and informed BOB that his members would not be accepting the terms as they were at all times available to work and BATU would deal with the respondent regarding the appellants separately.
Determination
The five appellants were the onlymembers of BATU; all 200 other staff at the depots were members of SIPTU. The appellant’s were only given a ‘general instruction’ to work which the Tribunal believes was fulfilled by cleaning the store room and depot. They could not go ‘out’ to work without specific instructions, the SSW cert or the general operatives to assist them. There seems to be some confusion regarding the status of BOB during the negotiations and it appears that the five BATU members were overlooked by both SIPTU and the respondent during the dispute. It is for these reasons that the Tribunal determine that the appellants should not have been deducted pay as they did not participate in the SIPTU work stoppage of 6th and 7th of November 2013.
The Tribunal upsets the Rights Commissioner Decision ref: r-143943, 143946, 143956, 143960, 143963-pw-14/JT under the Payment of Wages Act 1991 and makes the following awards;
Appellant 1 is awarded €239.33
Appellant 2 is awarded €479.32
Appellant 3 is awarded €274.82
Appellant 4 is awarded €228.36
Appellant 5 is awarded €475.46
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)