FULL RECOMMENDATION
PARTIES : BIDVEST NOONAN (ROI) LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No.ADJ-00014770 CA-00018940-005 This is a cross appeal by both parties of an Adjudication Officer’s,(AO) Decision under the Transfer of Undertakings Regulations, S.I. No. 131 of 2003, ‘the Regulations’. Ms. Ivanova, ‘the Complainant’, began working for another company as a cleaner in 2004. In 2010 her employment transferred in a transfer of undertakings to Bidvest Noonan, ‘the Respondent’. Employment Regulation Order, ‘ERO’, increases in 2015 and 2016 were not applied to her pay. The Respondent justified this on the grounds that the Complainant was in receipt of a pay rate in excess of the ERO rates at the time. The Complainant lodged a complaint under the Regulations. The Complaint was upheld by the AO who directed that compensation of €6,500 be paid. Both parties appealed this Decision. Deliberation and Determination. This is one of a series of similar complaints that appear, on the face of it, to relate to the same set of facts. The Court issued a Determination in Bidvest Noonan v. Eleanor Rabonsa TUD211, in the course of which case the Respondent argued that the complaint was not made in time. For the reasons set out in detail in that Determination, the Court found that the complaint was not statute barred. The Court had found also in respect of a case involving those two parties that there had not been an unlawful deduction from the Complainant’s pay within the meaning of the Payment of Wages Act 1991 and that, as the case under the Regulations was inseparable from the facts argued in respect of that Act, there was no entitlement for the Complainant, under the Regulations, to have her pay increased in line with increases awarded under an ERO at the material times. In the instant case, the Complainant represented herself. The Court explained the significance of the outcome of the ‘Rabonsa’ case for her appeal and invited her to put forward arguments to differentiate her case from that of Ms. Rabonsa and/or to make any relevant legal arguments. The Complainant was not in a position to do either. The Respondent relied on the Determination in the ‘Rabonsa’ case As no argument has been put to the Court in the instant case that differentiates the circumstances of the Complainant from that of Ms. Rabonsa, the Court has not been provided with any reason that could justify a different finding. Accordingly, the appeal of the Respondent is upheld. The Complainant’s appeal is not upheld. The decision of the Adjudication Officer is set aside.
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