PWD2326

Appeal of Adjudication Officer Decision No's: ADJ-00014744 (CA-00018953-004)

BACKGROUND:

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 10 October 2023 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 Noonan Services Group Ltd (the Appellant) of a decision of an Adjudication Officer given under the Payment of Wages Act, 1991 (the Act) in a complaint made by Pavels Prokopcenko (the Complainant).

The Complainant communicated with the Court by ‘phone shortly before the hearing of the Court to advise that he would not be attending the hearing. He proffered no reason for his non-attendance and did not seek a postponement or any change to the arrangements made to hear the appeal.

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 his contention that a contractual entitlement which he 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 him during the cognisable period for his complaint was other than the rate actually paid to him of €10.98 per hour for each hour worked.

Relevant Law

The Act at Section 5(1) provides as follows:

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.

Section 5(6) of the Act provides:

(6) Where

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

Discussion and conclusion.

The Complainant failed to appear at the hearing of the Court and confirmed to the Court in advance that he 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 he decided for whatever reason not communicated to the Court that he would not attend the hearing.

The Court has heard from the Appellant at the hearing and has carefully considered the written submissions of the Appellant which had been provided in advance to the Court.

The High Court in Marek 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 he 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 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 his contract of employment or any other term or condition of his employment created an entitlement to have his rate of pay increased on each occasion an ERO is enacted.

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.

	Signed on behalf of the Labour Court
	Kevin Foley
CC	______________________
16/11/2023	Chairman