FULL RECOMMENDATION
PARTIES : BIDVEST NOONAN (ROI) LTD DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No.ADJ-00014765 CA-00018938-005 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’. Mr. Chan, ‘the Complainant’, began working for another company as an acting supervisory cleaner in 2003. In 2010 his 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 his 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. The Complainant failed to appear at the Court despite numerous communications sent to him. As he has not presented his appeal, the Court determines that his appeal fails. In accordance with the observations in Glegola v. Minister for Social Protection (2018) IESC 65, the Court is obliged to consider the facts before reaching a Determination in respect of the Respondent’s appeal, notwithstanding the non-appearance of the Complainant. 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 also found 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.. 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 decision of the Adjudication Officer is set aside.
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