FULL RECOMMENDATION
PARTIES : BIDVEST NOONAN (ROI) LIMITED DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00014780 CA-00018951-004 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 increase 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’, that her complaint under the Payment of Wages Act, 1991, ‘the Act’, made on 4 May 2018 and seeking payments back to 1 December 2015, was statute barred. Summary of Complainant Arguments The Complainant needs clarity. Another case under the Act was accepted by the AO, who decided that the Complainant’s rights had been breached. In this case, the AO found that the complaint, also made on 4 May 2018, was statute barred. The drop down menu on the WRC form asks a complainant to specify the date on which it is being said that a payment was not received. The Complainant specified 1 December 2015. The complaint should not be limited to 6 months as the ERO concerned had been in place since 2016. Since taking over the contract in 2010, the Respondent has never given a pay increase to the Complainant. 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. Workplace Relations Act 2015. S. 41 6) Subject tosubsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. (8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to insubsection (6)or(7)(but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause. Deliberation The Respondent is incorrect in their argument that this case is identical to that of Ms. Rabonsa in PWD218, as Ms. Rabonsa’s representative withdrew her complaint under the Act that referred to the date of 1 December 2015 and pursued a separate complaint that cited 1 December 2017 as the date of an alleged breach of the Act. It is the latter complaint that is the subject of case number PWD218. However, the Court did set out clearly the legal position regarding time limits for the lodgement of complaints, as it is understood, in that previous case. Indeed, the Court went to considerable lengths to do so in the knowledge that there were other colleagues of Ms. Rabonsa pursuing cases under the Act. The Court noted the following in that previous case; “InHealth Service Executive v McDermott [2014] IEHC 331Hogan J considered the meaning of the term “within 6 months beginning on the date of the contravention which the complaint relates”. He held “12. It is at this point that we can return to the construction of the relevant language of s. 6(4), namely, “within the period of 6 months beginning on the date of the contravention to which the complaint relates”. The first thing to note is that no special meaning has been ascribed to the word “contravention” by the 1991 Act, so that it must be given its ordinary, natural meaning. 13. We may next observe that the actual language of the sub-section is clear, because it is the words “contravention to which the complaint relates” which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a “contravention” of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate “contraventions” of the 1991 Act during that period. 14. Yet the relevant statutory language takes us somewhat further, because the key question is the “date of the contravention to which the complaint relates.” In other words, time runs for the purposes of the Act not from the date of any particular contravention or even the date of the first contravention, but rather from the date of the contravention “to which the complaint relates.” As the EAT pointed out in its ruling on the matter, had the Oireachtas intended that time was to run from the date of the first contravention, it could easily have so provided. 15. For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three-year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time. 16. It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time. 17. It may be that when enacting s. 6(4) the Oireachtas did not fully appreciate that everything might turn for the purposes of time on the actual manner in which the particular complaint was actually framed by the employee, but the language of the sub-section really admits of no other conclusion. Nor can it be said that such a conclusion is absurd in any way. Applying the law as set out by Hogan J to the facts of this case the Court is required to consider the Complainant’s complaint to the Workplace Relations Commission, submitted on 4 May 2018.” It is not disputed that the appeal before the Court relates to an alleged breach of the Act from 1 December 2015 or that the complaint was lodged on 4 May 2018. Accordingly, the only determination that the Court can give, and one which requires little elaboration, is the simple application of the logic set out by Hogan J. above, which means that the complaint is out of time and that the AO Decision that the complaint is statute barred is correct. Determination The Decision of the Adjudication Officer is upheld.
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