FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES: NOONAN SERVICES GROUP LTD (REPRESENTED BY MANAGEMENT SUPPORT SERVICES) - AND - DUREZA SUMAYAO DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00014745 CA-00018937-001 The Complainant communicated with the Court by ‘phone and e-mail shortly before the hearing of the Court to advise that she would not be attending the hearing. She proffered no reason for her non-attendance and did not seek a postponement or any change to the arrangements made to hear the appeal. She had earlier provided the Court with a written submission in advance of the hearing. Summary position of the Complainant as set out in her written submission The Complainant submitted that she had been employed in her role by a previous employer until October 2010 when her employment transferred to the Appellant under a Transfer of Undertakings within the meaning of the Regulations governing such transfers. She contended that, prior to her transfer, she had received pay increases consistent with increases made to the minimum statutory rate set out in a series of Employment Regulation Orders (EROs) enacted during her employment. She submitted that these increases were applied to her rate of pay notwithstanding her rate of pay at all times prior to the transfer exceeded the minimum statutory rates of pay set out in successive EROs. She submitted that her rate of pay at the date of transfer was €10.98 per hour and remained so at the date of her complaint made on 4thMay 2018. She submitted that the Appellant failed to increase her rate of pay when ERO’s were enacted since 2010 and that, consequently, she was not paid the wages properly payable to her during the cognisable period for the within complaint made on 4thMay 2018.. The Complainant submitted her contract of employment to the Court as part of her written submission which did not contain a provision as regards application of increases consistent with increases in the statutory rates contained in ERO’s when enacted. She also submitted pay slips dating from 2007 and a series of internal e-mails both from her previous employer and the Appellant. Summary position of the Appellant The Appellant submitted that no element of the contract of employment of the Complainant at the time of transfer in 2010 demonstrated an entitlement to receive a pay increase on each occasion when an ERO was enacted. The Appellant accepted that an internal e-mail of the previous employer dating from 2007 demonstrated that on that occasion a pay increase was applied to the Complainant which was equivalent in percentage terms to the value of an increase emerging from a ERO enacted at that time. The Appellant submitted that a single occasion when such an event occurred cannot be taken to amount to the creation of a contractual right to have a similar increase applied at any time in the future. The Appellant submitted that the legislation governing the enactment of ERO’s was struck down as unconstitutional in 2011 and consequently no contention could be made that any contractual entitlement, the existence of which is rejected by the Appellant, could survive the striking down of the legislation in place at the time the alleged contractual term was in being. The Appellant submitted that no basis whatever had been put forward by the Complainant to support her contention that a contractual entitlement which she enjoyed prior to the transfer of the business to the Appellant in 2010 was not carried forward. Consequently, no basis has been put forward by the Complainant to support a contention that the rate of pay properly payable to her during the cognisable period for her complaint was other than the rate actually paid to her of €10.98 per hour for each hour worked. Relevant Law The Act at Section 5(1) provides as follows:
(6) Where
Discussion and conclusion The Complainant failed to appear at the hearing of the Court and confirmed to the Court in advance that she did not intend to do so. The Court is satisfied that the Complainant was on notice of the date, time and venue of the hearing but that she decided for whatever reason not communicated to the Court that she would not attend the hearing. The Court has heard from the Appellant at the hearing and has carefully considered the written submissions of both the Appellant and the Complainant which had been provided in advance to the Court. The High Court inMarek Balans v Tesco Ireland Limited [2020] IEHC 55,made clear that this Court, when considering a complaint under the Act, must first establish the wages which were properly payable to the employee on the occasion before considering whether a deduction had been made. That matter having been addressed, it is for the Court to determine whether the wages actually paid on the occasion were less than the wages which were properly payable on the occasion. If the wages actually paid were less than the amount properly payable, then the difference could be concluded to be a deduction within the meaning of the Act. If it is established that a deduction within the meaning of the Act had been made from the wages properly payable on the occasion, the Court would then consider whether that deduction was lawful. It is common case that the Complainant was paid €10.98 per hour throughout the cognisable period for the within complaint. The Complainant however contends that she was entitled to receive a higher rate of pay as a result of the enactment of two ERO’s – one in 2015 and one in 2016 The Court has been unable to identify any documentation in the submission of the Complainant which establishes that she had an entitlement by virtue of her contract, whether explicitly recorded or implied, to receive increases equivalent to increases in statutory rates contained in ERO’s when enacted. Neither has she demonstrated that the application of such increases to her was an established custom or practice or term of her employment prior to its transfer to the Appellant in 2010. The Complainant has not demonstrated that any collective agreement was in being in the employment prior to the transfer which made provision for the application to her of rates of pay increase contained in an ERO in the manner contended for by her. The Appellant has submitted that no such entitlement was enjoyed by the Complainant at the date of transfer and has contended that in any event the relevant legislation was struck down as unconstitutional shortly after the transfer occurred. The Court concludes that no provision of her contract of employment or any other term or condition of her employment created an entitlement to have her rate of pay increased on each occasion an ERO is enacted. The rate of pay in being at the date of transfer of Complainant’s employment to the Appellant was acknowledged by both parties to amount to €10.98 per hour. No basis has been put before the Court for an entitlement on the part of the Complainant to a rate of pay greater than €10.98 per hour, other than the contended for existence of an entitlement to enjoy increases provided for in ERO’s when enacted. That being the case, the Court, having regard to the its earlier conclusion set out above, that no such entitlement existed, must conclude that the rate of pay properly payable to the Complainant at the material time for the within complaint was €10.98 per hour. The rate of pay actually paid to her throughout was €10.98 per hour. In those circumstances the Court must conclude that no deduction has been made from the wages properly payable to the Complainant at the material time. In all of the circumstances, the Court concludes that the within Complaint of a breach of the Act has not been made out. Decision The Court decides that the Appellant has not breached the Act in the manner contended for by the Complainant. In those circumstances, the Court decides that the within appeal must succeed and the decision of the Adjudication Officer is set aside. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
