EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF: CASE NO.
Employer - appellant TE227/2012
against the recommendation of the Rights Commissioner in the case of:
Employee - respondent
PAYMENT OF WAGES ACT, 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B. L.
Members: Mr M. Carr
Mr O. Nulty
heard this appeal at Monaghan on 16th January 2014
Appellant: Ms. Catherine Day, Peninsula Business Services (Ireland) Limited, Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
Respondent: Mr Rory O'Neill, Mallon, Solicitors, Main Street, Castleblayney, Co. Monaghan
This case came before the Tribunal by way of an employer appeal of the Rights Commissioner Recommendation in relation to the Terms of Employment (Information) Act, 1994 ref: r-121144-te-12/SR and Decision under the Payment of Wages Act 199, r-121146-pw-12/SR. This case was heard in conjunction with an Unfair Dismissals claim ref: UD555/2012.
Summary of Evidence
The employee commenced employment in 1994 as a forecourt manager. He worked continuously until his dismissal in February 2012. The employee’s employment transferred from the previous employer to this employer on the 15th of November 2011. There was no official consultation or documentation in respect of the transfer. The employee never received a contract of employment or terms and conditions of employment from this or any previous employer. This is the foundation of his claim under the Terms of Employment (Information) Act, 1994.
In 2010 the assistant manager informed the employee that he would be taking over two of his five weekly shifts resulting in the employee going from a five-day to a three-day week. The employee did not consent or agree to this new arrangement at any time with the previous employer. The employee’s working week was further reduced to two shifts and finally down to one shift per week; this working pattern continued with the new employer. The employee was always ready and available for work and actively sought an increase in work. The employees Payment of Wages claim to the Rights Commissioner was for unlawful deduction of wages during this period of short-time.
The employee was given a contract of employment covering his previous employer, JmcC’s tenure. JmcC does not have a copy of this contract as it is with the liquidator. The new employer JW did not issue the employee with a new contract or terms and conditions of employment; the employee ceased working very shortly after the transfer took place.
The employees’s previous employer (JmcC) gave evidence that in 2010 and 2011 the employee informed JmcC that reduced hours would suit him as he could do some better paid work with his brother-in-law and he was winding down coming close to retirement. JmcC offered him alternative work in different premises that might suit him better, but the employee declined. At no stage did the employee request to be returned to full-time hours to the previous or new employer. The employee continued to work the same hours with the new employer.
The Tribunal find that the employer did not discharge the onus of proof that they provided the employee with a contract of Employment. The employer appeal of the Terms of Employment (Information) Act, 1994 ref: r-121144-te-12/SR fails, therefore the decision awarding the employee compensation of €350.00 stands.
The Tribunal find that as the employee was on reduced working hours consequently he suffered a reduction in wages and not a deduction in wages. The employer appeal of the Rights Commissioner Decision under the Payment of Wages Act 1994, r-121146-pw-12/SR succeeds therefore upsetting the Rights Commissioner Decision.
Sealed with the Seal of the
Employment Appeals Tribunal