FULL RECOMMENDATION
PARTIES : BIDVEST NOONAN (ROI) LIMITED DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00014780 CA-00018951-001 Ms. Laisa, ‘the Complainant’ was an employee of ISS Facilities Ltd. when a transfer of undertakings arose in 2010 and, as a result, she became an employee of Bidvest Noonan, Ltd., ‘the Respondent’. The Complainant is one of a number of people in a similar position whose pay at the time of transfer exceeded the rates provided for in the industry Employment Regulation Order, ‘ERO’ and who contend that there was a contractual obligation on the new employer, the Respondent, to increase their rate of pay in line with increases in the ERO rates, as, it is contended, this contractual commitment was created by the previous employer who adopted a practice of increasing their pay rates in line with increases in the ERO rates. The Complainant made a series of complaints on the same set of facts under a number of Acts to the Workplace Relations Commission, ‘WRC’. This is an appeal by the Complainant of the Decision of an Adjudication Officer, ‘AO’, in respect of a complaint under the Payment of Wages Act, 1991, ‘the Act’, made on 4 May 2018. The AO accepted that the complaint was well founded and directed payment of arrears of wages back to 1 December 2017, the date of alleged breach specified on the complaint form. The Complainant appealed, seeking retrospection to 1 October 2015. The Court, noting that the Complainant did not have a professional representative, pointed out to the Complainant that the Respondent had not appealed the AO Decision and that, as matters stood, there was a legal obligation on the Respondent to pay the award whereas, if the appeal was pursued, the AO Decision could, potentially, be overturned. The spokesman for the Complainant indicated that they wished to proceed. There is a second complaint under the Act from the Complainant, which is covered by a separate Determination. Summary of Complainant Arguments The Complainant was specific that the complaint was within the 6 month time limit, because the complaint was filed on 4 May 2018 and the date of 1 December 2017 was cited as the date of deduction because of awareness of the 6 month time limit stipulated. The issue is a determinant for the AO when to base the award after deliberation of a valid complaint. Summary of Respondent Arguments The Court dealt with this matter, on identical facts, in a case involving a colleague of the Complainant, Ms. Eleanor Rabonsa. In that case, the Court held as follows; The Complainant has failed to establish that as a matter of practice she received the equivalent increases in monetary terms to that awarded under the 2007 ERO. Even had she done so, she has failed to establish that the two memoranda establish a contractual entitlement to the same increases in pay awarded under the EROs for her industry where she was already in receipt of remuneration above the minimum rate. In those circumstances the Court finds that the hourly rate properly payable to the Complainant is as expressed in her contract of employment and in those circumstances, the Court finds there was no unlawful deduction within the meaning of s. 5 of the Payment of Wages Act 1991. A similar determination is sought. The Applicable Law Payment of Wages Act,1991 Regulation of certain deductions made and payments received by employers. 5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless— (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it. (2) An employer shall not make a deduction from the wages of an employee in respect of— (a) any act or omission of the employee, or (b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless— (i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and (ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and (iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with— (I) in case the term referred to insubparagraph (i)is in writing, a copy thereof, (II) in any other case, notice in writing of the existence and effect of the term, and (iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and (v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and (vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and (vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services. Complaint to adjudication officer undersection 41of Workplace Relations Act 2015 6. (1) A decision of an adjudication officer undersection 41of the Workplace Relations Act 2015, in relation to a complaint of a contravention ofsection 5as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding — (a) the net amount of the wages (after the making of any lawful deduction therefrom) that — (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, were paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to inparagraph (a), twice the former amount. (2) (a) An adjudication officer shall not give a decision referred to insubsection (1)in relation to a deduction or payment referred to in that subsection at any time after the commencement of the hearing of proceedings in a court brought by the employee concerned in respect of the deduction or payment. (b) An employee shall not be entitled to recover any amount in proceedings in a court in respect of such a deduction or payment as aforesaid at any time after an adjudication officer has given a decision referred to insubsection (1)in relation to the deduction or payment. Decision of Labour Court on appeal from decision referred to insection 6 7.— A decision of the Labour Court undersection 44of the Workplace Relations Act 2015, on appeal from a decision of an adjudication officer referred to insection 6, shall affirm, vary or set aside the decision of the adjudication officer. Deliberation The Respondent is correct in identifying that the facts of this case are identical in every important respect to those covered in case number PWD218. In that case, the Court set out, at considerable length, its reasoning, in the full knowledge that there were similar appeals lodged and pending consideration by the Court. At the outset of the instant case, the Complainant was asked if there were any new or additional arguments to distinguish this case from those that were considered in PWD218. Apart from the fact that, in the instant case, the Complainant was appealing while in the previous case it was a Respondent’s appeal, it was confirmed to the Court that there were no new or additional arguments. As the Court explained at length, the matter of which party makes an appeal is irrelevant to the Court’s ‘de novo’ consideration of the facts and the application of the law to those facts. Accordingly, the Court has no reason to vary the earlier Determination, which was that the Complainant failed to show that there was a contractual entitlement to receive the application of ERO increases, while in receipt of remuneration in excess of the ERO rates. The detailed reasoning is set out in that Determination, see PWD218. Determination The Decision of the AO is set aside.
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