EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
EMPLOYEE 1 -appellant A
EMPLOYEE 2 -appellant B
against the recommendation of the Rights Commissioner in the case of:
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms F. Crawford B.L.
Members: Mr F. Moloney
Mr M. O'Reilly
heard this appeal at Dublin on 4th December 2012
Appellant: Ms. Bernadette Thornton, SIPTU, Liberty Hall, Dublin
Respondent: No appearance or representation on behalf of the respondent.
These claims came before the Tribunal by way of two employees (the appellants) appealing against the decision of a Rights Commissioner under the Payment of Wages Act, 1991 (references: r-099131-pw-10/EH and r-099132-pw-10/EH
The respondent was duly notified of the hearing at the address provided by the appellants. Neither the respondent nor a representative on its behalf attended the hearing. It was confirmed to the Tribunal that the respondent was currently based at a different address than that which was put on notice. However, the supervisor of the scheme under which the appellants worked was present on behalf of the appellants and informed the Tribunal that the respondent was in receipt of post from its previous address up to the week before the hearing. The delivery of the notice of the hearing to that address was confirmed via the An Post website.
The Tribunal heard evidence from the supervisor in relation to S.7 (2) (b). The supervisor gave evidence that she was told by a union representative that the notice of appeal would be copied to the respondent. The witness subsequently spoke with the Centre Manager for the respondent who confirmed that the notices of appeal were received. The Tribunal accepted the uncontested evidence of the supervisor in relation to S.7 (2) (b) and proceeded to hear the appeal
The appellants were employed as job initiative employees. The appellants became employees of the respondent by virtue of a transfer of undertakings. It was the appellants’ case that the employer breached S.5 of the Act by unilaterally reducing their wages without receiving their permission or indeed conducting negotiations or engaging in a consultation process with them.
Representation for the appellants submitted that the respondent should have sought the written consent of the appellants and engaged in a consultation process on the issue. The pay cut was imposed following an instruction from Fás to the respondent centre, to reduce the rate of pay of the employees. It was accepted that the respondent did not have discretion in this regard. A copy of the correspondence from Fás was opened to the Tribunal.
It is clear that reductions in wages were made across the board. It is contended that the unilateral action regarding the deductions without consultation or prior written consent was in breach of the Payment of Wages Act 1991 (and in particular Section 5(1) (c) thereof).
Having regard to the decision of the High Court in Michael McKenzie & another –v- The Minister for Finance & others  IEHC 461, the Tribunal adopts the principle that the Payment of Wages Act has no application to reductions in wages as distinct from “deductions. The Tribunal is bound to follow this point of law of the High Court and therefore in the circumstances, the decision of the Rights Commissioner under the Payment of Wages Act, 1991 is upheld (references: r-099131-pw-10/EH and r-099132-pw-10/EH).
Sealed with the Seal of the
Employment Appeals Tribunal