PWD249

 PW/20/17

DECISION NO. PWD249

SECTION 44, WORKPLACE RELATIONS ACT 2015

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

PARTIES:

NOONAN SERVICES GROUP LIMITED 

​​(REPRESENTED BY MANAGEMENT SUPPORT SERVICES)​  

AND 

 ​MR ERWIN BENDANA​  

DIVISION

   Chairman:  Mr Foley

  Employer Member: Mr Marie

  Worker Member:  Ms Tanham

SUBJECT

Appeal of Adjudication Officer Decision No's: ADJ-00014772 (CA-00018941-001)

 BACKGROUND

 The employer appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Payment wages act 1991 on 11th February 2020. A Labour Court hearing was held on 7th February 2024. The following is the Decision of the Court:

 DECISION

 This matter comes before the Court as an appeal by Noonan Services Group Ltd (the Appellant) of a decision of an Adjudication Officer CA-00018941-001 given under the Payment of Wages Act, 1991 (the Act) in a complaint made by Erwin Bendana (the Complainant). The Complainant also appealed that decision and his appeal is also before the Court in this appeal.

The Complainant did not attend the hearing of the Court. The Court is satisfied that he was notified properly of the date, time and venue for the hearing. 

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 Employment Regulation Order (ERO) was enacted.

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.

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. 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. In these circumstances, the Complainant was not in a position to advance his appeal at the hearing of the Court and it consequently falls

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.

The Complainant was paid €11.48 per hour throughout the cognisable period for the within complaint. The Complainant however, according to the Appellant, 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.

No provision of his contract of employment or any other term or condition of his employment was put before the Court by the Complainant which could be understood to have created an entitlement for the Complainant to have his rate of pay increased on each occasion an ERO is enacted.

The Court must therefore conclude that the Complainant was in receipt of all of the wages which were properly payable to him at all times material to the within complaint.

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 of the Appellant must succeed and the decision of the Adjudication Officer is set aside.

The Court so decides.

   Signed on behalf of the Labour Court     

 NOTE

 Enquiries concerning this Decision should be in writing and addressed to Coleen Dunne Kennedy, Court Secretary.