PWD2236

1.Appeal Of Adjudication Officer Decision No(S). ADJ-00027592 CA-00035182-002

BACKGROUND:

2.This is an appeal of an Adjudication Officer’s Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 5 July 2022 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-






DETERMINATION:

This matter comes before the Court as an appeal by Starrus Eco Holdings Limited (the Appellant) against a decision of an Adjudication Officer in a complaint made under the Payment of Wages Act, 1991 I (the Act of 1991) by Ben Madichie (the Complainant).

The Complainant was employed by the Respondent as a driver from October 2017 until his dismissal in February 2020.

The Adjudication Officer decided that the Appellant had been in breach of the Act and she made an award of €1,464.00 in compensation.

The Complaint

The Court asked the Complainant to clarify his complaint under the Act. The Complainant’s representative clarified to the Court that the Minimum Notice and Terms of Employment Act, 1973 (the Act of 1973) conferred an entitlement to payment of notice upon termination of employment. The Appellant in this matter did not make any payment to the Complainant in respect of his statutory entitlement to notice upon his dismissal and that failure amounted to a breach of the Act of 1991 according to the Complainant's representative.

The Appellant submitted that no complaint in respect of an alleged failure to afford the Complainant his statutory entitlement to notice under the Act of 1973 can be pursued under the Act of 1991.

Conclusion of the Court.

The Court in this matter is asked to determine the Complainant’s statutory entitlement to notice under the Act of 1973 and, having determined such an entitlement, to decide in exercise of its jurisdiction under the Act of 1991, that such an entitlement amounts to wages properly payable to the Complainant within the meaning of the Act of 1991 and, having so decided, to decide that a failure to pay such wages amounts to a deduction within the meaning of that Act and that such a deduction is unlawful.

The Court invited the Complainant to put before it authority for the proposition that an alleged failure of the Appellant to afford the Complainant his statutory entitlements under the Act of 1973 can properly be pursued as an alleged breach of the Act of 1991. In making this invitation the Court asked the complainant to provide authority for such a proposition against the background of the fact that the Act of 1973 makes provision for the determination of complaints of any alleged breach of that Act and provides jurisdiction to this Court in respect of any such complaint under that Act.

No such authorities were proffered by the Complainant.

The Court concludes that in order to determine the appeal before it under the Act of 1991 it would first have to exercise a jurisdiction under the Act of 1973 in order to determine the wages properly payable to the Complainant on the occasion. No appeal under the Act of 1973 lies before the Court and consequently the Court lacks jurisdiction to decide upon an alleged breach of that Act.

In the circumstance where the basis for the within appeal under the Act of 1991 is that the Appellant is in breach of its obligations under the Act of 1973, the within appeal must fail.

The decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
9 August 2022	Chairman