EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
PW230-233/2013
APPEAL OF:
MP Ryan Limited
against the recommendation of the Rights Commissioner in the case of:
Philip Dinneen
Sean Cronin
Peter O'Dwyer
Wayne Rogers
under
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr J. Horan
Ms H. Kelleher
heard these appeals at Thurles on 17th December 2014, 8th April 2015, 9th April 2015, 14th July 2015 and 15th July 2015.
This case came before the Tribunal by way of appeals by the employer against the decisions of the Rights Commissioner Ref: r-127280-pw-12/MMG, r-127281-pw-12/MMG, r-127283-pw-12/MMG and r-127288-pw-12/MMG
Representation:
Appellants: Maples and Calder, Solicitors, 75 St Stephen's Green, Dublin 2
Respondent: Mr Pat Kavanagh, Technical Engineering & Electrical Union, 83 Lr Yellow Road, Waterford
These appeals (PW230-233/2013) are to be read in conjunction with appeals TU24-25/2013. The appeals under both Acts were heard in conjunction with each other and it was agreed that the evidence tendered in either case can be used in either or both of them.
Background:
The appellant/employer (MPR) was an electrical contractor who had been providing electrical maintenance work for Bord Gais Networks (BGN) under contract. The appellant’s position is that its contract with BGN came to an end on 7 May 2012 and that as and from that date the electrical maintenance contract was transferred to BBCLG (the respondent in TU24-25/2013). The appellant had paid the respondents/employees herein up to 7 May 2012, the date on which it ceased operations. The respondents went into dispute with BBCLG as it refused to employ them. That dispute was resolved by way of agreements dated 27 July 2012 under which BBCLG made payments to each of the respondents. However it was the respondents’ position that they were not paid wages for the period between 7 May 2012 and 27 July 2012. Their claim under the Payment of Wages Act, 1991, is in respect of this period.
Determination
In Paul Ryan and Robert Ryan v Balfour Beatty CLG Limited TU24-25/2013 (hereafter these parties are respectively referred to as MPR and BBCLG) the Tribunal determined that the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 applied to the taking over by BBCLG of certain works previously performed by MPR for BGN. Thus, the respondents became the employees of BBCLG and their entire service with MPR up to 7 May 2012, when they ceased working for MPR as well as their service over the interim period up to and including 27 July 2012, passed to BBCLG. In these circumstances the respondents cannot maintain a claim for payment of wages in respect of the period 7 May 2012 to 27 July 2012 against the appellant herein.
If the Tribunal is incorrect in its determination in relation to the transfer of undertakings between MPR and BBCLG, it holds that these appeals would never the less succeed. In the succinct evidence given by the BBCLG’s Finance Manager, she accepted that the service taken into account for the respondents in the settlements reached with BBCLG on 27 July 2012 included their service with MPR up to 7 May 2012 (for which they had been paid their wages) and also the subsequent weeks up to 27 July 2012. The respondents’ waiver agreements are in favour of BBCLG and not MPR. However, the Tribunal cannot ignore the fact that the respondents were treated as having been the employees of BBCLG over the relevant period for the calculation of both their statutory benefits and taxation.
In any event, MPR ceased operations as of 7 May 2012 and there was no work available or carried out by the respondents for MPR after that date. Thus, no wages are owing and due to the respondents.
Thus, the appeal under the Payment of Wages Act 1991 succeeds and the abovementioned decisions of the Rights Commissioner are set aside.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________ (CHAIRMAN)