EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Robertas Preiksaitis - appellant PW441/2011
against the recommendation/decision of the Rights Commissioner in the case of:
Comerford Developments (Ireland) Limited - respondent
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms N. O'Carroll-Kelly BL
Members: Mr J. Horan
Mr. S. O'Donnell
heard this appeal at Dublin on 10th January 2014
Appellant(s) : Mr. Richard Grogan, Richard Grogan & Associates,
Solicitors, 16 & 17 College Green, Dublin 2
Respondent(s) : No appearance by or on behalf of respondent
This case came before the Tribunal by way of an appeal by the employee (appellant) against the decisions of the Rights Commissioner ref (r-109752-te-11/RG & r-109754-pw-11/RG) under the Terms of Employment (Information) Act, 1994 and 2001, and the Payment of Wages Act 1991.
Summary of Evidence
The Tribunal heard uncontested evidence from the appellant that he commenced working for the respondent development company on 16 August 2004. He continued in employment until 18 April 2011 when he was put on lay-off by the respondent. He served an RP9 form on the respondent on 20 June 2011 and was told that there was no work available for him. He did not receive any redundancy payment and has not been provided with any further work by the respondent company to date. The Tribunal heard further evidence that he was never provided with a contract of employment or any terms and conditions of employment and did not receive any payment during his period of lay-off.
The Tribunal is satisfied that both parties were properly notified of the hearing. The Tribunal finds that the appellant was not provided with a statement in writing containing the terms of his employment pursuant to section 3 of the Terms of employment (Information) Act. Accordingly, the Tribunal, pursuant to section 7 (2) (d) of the said Act upsets the recommendation of the Rights Commissioner and awards compensation to the appellant in the sum of €200.00. The Tribunal finds that this sum is just and equitable having regard to the circumstances of the case.
The appellant was placed on lay-off on 18 April 2011 and remained so until the termination of his employment on 20 June 2011. He was not paid during that period of lay-off and he states that he is entitled to his pay for this period of lay-off as he did not consent to the deduction of pay.
Noting the recent the judgement of Kearns P. in Petkevicius v Goode Concrete Limited (In Receivership)
“….There is no right to lay-off with pay. It is well established law that lay-off without pay may occur where it can be established that that is the custom and practice of the trade. This custom must be reasonable, certain and notorious ;Jelp J. Devonald and Rosser (1906) 2 K.B. 728.”…
The Tribunal is satisfied that there is custom and practice in the industry that employees will not be paid during periods of lay-off. Accordingly the Tribunal dismisses the appeal and upholds the decision of the Rights Commissioner under the Payment of Wages Act 1991.
Sealed with the Seal of the
Employment Appeals Tribunal