EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Krzysztof Matenko, - appellant PW340/2011
against the recommendation of the Rights Commissioner in the case of:
Bocnara Limited, - respondent
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr. L. Tobin
Mr P. Trehy
heard this appeal at Tullamore on 11th December 2013
Appellant(s) : Mr. Blazej Nowak,
Polish Consultancy Enterprise, 107 Amiens Street, Dublin 1
Respondent(s) : no appearance by or on behalf of the respondent
The decision of the Tribunal was as follows:-
This case came to the Tribunal by way of an appeal by the employee against the recommendation of the Rights Commissioner under the Payment of Wages Act, 1991 Ref: R-093185-PW-10/JC.
The Tribunal is satisfied that all parties were on notice of the hearing. There was no appearance by or on behalf of the respondent. The respondent company a civil engineering and construction company put the appellant on temporary lay-off due to a lack of work in the construction industry. The appellant was notified in writing on the 10 August 2009 of the lay-off on a temporary basis for the present time.
The Tribunal has carefully considered this matter. The issue the Tribunal has to decide on is whether or not the appellant is entitled to be paid during the period of lay - off.
The appellant brought a claim under the Payment of Wages Act, 1991 stating that he was entitled to be fully remunerated for the period of lay-off from 26 October 2009 to the 26 April 2010. The claim was initially heard before the Rights Commissioner who by determination issuing on the 3 August 2011, found that the appellant was not properly due wages during lay-off. It is noted that the respondent/employer was present at the hearing before the Rights Commissioner, and the employer asserted that it had been the custom and practice of the company never to pay wages during lay-off periods, a view not shared by the appellant.
In the Irish case of John Lawe -v- Irish Country Meats Limited 1998 ELR p266 the issues of an employer’s right to lay-off without pay and the issue of the recognised custom and practise applicable in the workplace were considered by the learned Judge White in the Circuit Court. The Judge accepted that there is no inherent right to lay-off without pay at common law though he further recognised that there are certain limited circumstances which give rise to the right to lay-off without pay. This included a situation where an employer is able to establish that the entitlement arises out of well-established custom and practise. In the Lawe case a lay-off without pay was effected and whilst there was a recognised custom and practice which allowed for lay-off in certain circumstances none of these circumstances had applied in that case, and the employer had in fact used the lay-off process as a preliminary step to redundancy. The lay off in Lawe further lacked the reasonable belief that the cessation in employment would not be permanent as is required under the section 11 definition.
The Tribunal is satisfied that the contract of employment in these proceedings specifically allowed for and recognised the need to operate a scheme of lay off. Lay-off allows an employer to buy time to generate work and secure contracts. The High Court in the case of Pevkevicius – v- Goode Concrete Limited (in receivership) has also further affirmed the reasonableness of this approach.
The Tribunal determines, for the aforementioned reasons that the appeal under the Payment of Wages Act 1991 fails.
Sealed with the Seal of the
Employment Appeals Tribunal