EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
PW479/2013
APPEAL OF:
Erica Caffey
against the recommendation of the Rights Commissioner in the case of:
Barbara Horan
Under
PAYMENT OF WAGES ACT 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. A. Taaffe
Members: Mr. L. Tobin
Mr. C. Ryan
heard this appeal in Dublin on 5 June 2015 and 8 September 2015
Representation:
Appellant: Ms Amanda Kane, Mandate Trade Union, O'Lehane House, 9 Cavendish Row, Dublin 1
Respondent: Mr Pat Brady, Workplace Solutions, 56 St Columbanus Avenue, Milltown, Dublin 14
The decision of the Tribunal was as follows:
This case came before the Tribunal by way of an appeal by a former employee’s appeal against a Rights Commissioner Recommendation reference r-134373-pw-13/JT.
At the outset of the hearing on 8 September 2015 the respondent declared its intent to implement a Rights’ Commissioner’s award of €500.00 to the appellant in accordance with a recommendation by that Commissioner under the Terms of Employment (Information) Act, 1994 and 2001
It emerged during the hearings that the correct name of the respondent is Barbara Horan. However, no application to amend or correct the Rights’ Commissioner’s recommendation was made and the hearing proceeded with the respondent’s name as stated on that recommendation. The respondent as stated no longer trades. Ms Horan was not in attendance for the hearing on 08 September 2015.
The appellant’s maintained that during the course of her employment she was obliged to work extra hours over those agreed with her employer. It was her contention that those extra hours were not taken into account when it came to her remuneration.
It was also the appellant’s case that the respondent owed her payments for outstanding leave.
The sole witness for the respondent was the partner of the appellant’s former employer. While he worked on the premises as a chef this witness, who did not take a wage for his labours, was only familiar with the events there in the eighteen months leading up to the closure of the business in September 2013.
In contesting the appellant’s case this witness stated that it was normal practise that the appellant was employed for thirty-nine hours per week. He also disputed the assertion that she was owed money in lieu of leave and added that the opposite was the case.
Determination
The Tribunal has carefully considered the evidence adduced both verbal and written. It is agreed by the parties that a written contract setting out terms and conditions of employment signed by the respondent was furnished by the respondent on 1st June 2013 and that none was furnished prior to this date. It is finally further agreed that the claimant’s employment with the respondent ended on the 18th September 2013 following the closure of the business.
Having considered the cases presented by the parties in relation to the steps taken by the respondent to implement a 36,5 hour working week by the claimant the Tribunal is satisfied that (a) the claimant worked a 34 hour week from the commencement of her employment and that (b) these steps were taken by the respondent without any consultation with the claimant and in the absence of any agreement with her.
Consideration was given to the claim by the claimant that she was discriminated against in respect of her selection for lay-off by the respondent. The Tribunal is satisfied that this was not evident in the process and further finds that the lay-off process was conducted by the respondent in response to its deteriorating financial position which it found itself presented with at that time.
The Tribunal has finally examined the conflicting evidence of the parties in respect of the issue of annual leave and the claimant’s claim in respect thereof and finds and determines that an entitlement of five days arise in respect of this claim.
A sum of €600.60 in respect of the claim for outstanding wages is awarded to the claimant along with a sum of €335.00 in respect of annual leave representing a total award of €935.60 in respect to her claims under the Payment of Wages Act, 1991. The Tribunal there upsets the recommendation of the rights’ Commissioner.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)