PWD1924

FULL RECOMMENDATION

PW/19/40

DETERMINATIONNO.PWD1924

ADJ-00017719 CA-00022898-001

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

PARTIES :

ARTISAN TRADITIONAL BAKERY LIMITED/BAKED
(REPRESENTED BY PENINSULA)

- AND -

MS FLORINA AVRAM
(REPRESENTED BY MR MARIUS MAROSAN)

DIVISION :

Chairman: Ms O'Donnell
Employer Member: Ms Connolly
Worker Member: Ms Treacy

SUBJECT:
1. Appeal of Adjudication Officer Decision No ADJ-00017719.

BACKGROUND:

2. This is an appeal by the Worker of an Adjudication Officer’s Decision under the Payment of Wages Act 1991. A Labour Court hearing took place on 16 August 2019. The following is the determination of the Court:-

DETERMINATION:

This is an appeal by the Florina Avram (the Complainant) against an Adjudication Officer’s Decision ADJ-00017719 given under the Payment of Wages Act 1991 (the Act) in a claim that her employer Artisan Traditional Bakery Limited (the Respondent) made an unlawful deduction from her wages when they failed to pay her the last three weeks of her notice period.

Background

The Complainant commenced employment with the Respondent on the 7^thMay 2018. On the 1^stOctober 2018 the Complainant gave notice of her intention to leave her employment on the 11^thNovember 2018. The Respondent accepted the notice and indicated that her final day of work would be the 8^thOctober 2018.

Complainant’s case

It is the Complainant’s case that the Respondent was obliged to provide her with work and pay her up until the 11^thNovember or pay her in lieu of same. In support of her claim the Complainant’s representative drew the Court’s attention to the second schedule of the minimum Notice and Terms of Employment Act 1973 which he submitted supported the claim.

Respondent’s case

It is the Respondent’s case that as the monies were not properly payable for the period in question the claim cannot succeed. It was their submission that they exercised their right to waive the notice period. The Complainant finished up work on the 8^thOctober 2018 and was paid all monies due including holiday pay on the 17^thOctober 2018.

The applicable law

Section 7 (1) of the Minimum Notice and Terms of Employment Act 1973 states;

“nothing in this Act shall operate to prevent an employee or an employer from waiving his right to notice on any occasion or from accepting payment in lieu of notice.”

Section 5 (6) of the Payment of Wage Act 1991 states;

“Where—
- (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or
  (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,
then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion”.

Discussion and determination

For a breach of the Payment of Wages Act to occur the wages referenced in the claim must be properly payable. In this case the Respondent in line with his entitlement under s7(1) of the Minimum Notice and Terms of Employment Act 1973 waived his right to notice. The Complainant was not required to work the notice period therefore, the issues of payment for that period did not arise. As there was no payment properly payable during the period claimed the appeal must fail.

The appeal fails. The decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court

Louise O'Donnell
FMc______________________
2nd September 2019Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.