EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Carmel Dunne– appellant No1 PW503/2011
PW508/2011
The Personal Representative in the Estate of Mary Ronan (Deceased) PW504/2011
– appellant No 2 PW509/2011
Victoria McCormack– appellant No 3 PW505/2011
Christina Moore– appellant No4 PW507/2011
against the decision of the Rights Commissioner in the case of:
Dunnes Stores Limited - respondent
Under
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K.T. O'Mahony B.L.
Members: Mr J. Hennessy
Mr F. Dorgan
heard this appeal at Kilkenny on 25th June 2013 and 22nd October 2013
Representation:
Appellant(s): Mr. Bill Kelly, Mandate Trade Union, South-Eastern
Division, 36 Michael Street, Waterford
Respondent(s): Mr Michael Kennedy, Byrne Wallace, Solicitors,
88 Harcourt St, Dublin 2
This case came before the Tribunal by way of an appeal by the employees (appellants) appealing against the decisions of the Rights Commissioner under the Payment of Wages Act 1991 references: r-101071-pw/TB, r-107074-pw-11/TB, r-107079-pw-11/TB, r-107080-pw-11/TB, r-106504-pw/TB, r-107077-pw-11/TB.
Summary of Evidence:
During the boom years the respondent’s store was open 24 hours a day, seven days a week. Due to the recession and two large competitors opening in the local area there was a significant downturn in the respondent’s business. Trading hours were gradually cut back to 8.00am to 12.00 midnight, then to 11.00pm and later to 10.00pm. At the time of the hearing the store was operating from 9.00am to 10.00pm. Around 32% of staff took voluntary redundancy.
The respondent sought to make some changes to the shift pattern of the employees but the number of hours worked was to remain the same. Of the 26 employees affected 11 objected to the change and refused to work the new hours and continued to work their old rosters. The respondent did not pay the employees for the disputed hours and this led to a number of the appellants’ working the newly rostered hours under protest. The 11 employees lodged claims under the Payment of Wages Act with the Rights Commissioners Service in respect of the non-payment of wages for the hours worked. Whilst the 11 employees lodged appeals against the Rights Commissioner’s Decision, 7 of these appeals were withdrawn on the day of the hearing herein.
The four appellants herein continued to report work in accordance with their originally rostered hours for a short period of time but subsequently adhered to the new rosters out of fear of sanction. Their appeals under the Payment of Wages Act, 1991 relate to the hours they had reported for work but were not paid and in the case of the first appellant and the late second appellant their appeals include a claim for payment in respect of three days during which they both had been on suspension without pay.
The first appellant’s original hours were 10.00am to 4.00pm. Under the new roster her hours were 11.00am to 5.00pm. She is claiming payment for 7 hours in that she was not paid for having worked between 10.00am and 11.00am on 7 occasions. Under the revised roster, the third appellant was rostered to work one Sunday rather than a Tuesday every six weeks and her claim is for one day’s pay. Under the revised roster, the fourth appellant was rostered to work one Saturday instead of another day every six weeks and her claim is in respect of one day’s pay.
Each of the appellants present at the hearing told the Tribunal that the decision by them to continue to work their original hours was taken as an individual decision, that it was not taken as part of a collective action and was not seen by them as industrial action in pursuit of an industrial dispute. Letters from the Trade Union Divisional Organiser in November of that year to the appellants’ manager refer to his members’ collective grievance and indicate that he may ballot for industrial action.
The respondent’s position was that the appellants were each provided with contracts of employment, which contained a flexibility clause in respect of the hours of work. The respondent contented that the action taken by the appellants in continuing to work their previously rostered hours constituted industrial action and was therefore outside the remit of the Payment of Wages Act, 1991.
A contract of employment for the fourth appellant was before the Tribunal but her case was that some months into her employment she was moved to a different position and was not provided
with a contract of employment in respect of her new position. The appellants were given advance notice of changes in the roster and when they continued to work their previous rosters the respondent did not pay them for the time worked outside of their newly rostered hours.
Determination
Several issues were raised between the parties, including inter alia: whether the appellants were given contracts of employment by the respondent; the various types of contracts issued by the respondent; whether all contracts contained a clause on flexible hours; the effect of custom and practice. The main argument put forward by the appellants was that, having worked for a considerable number of years on their set hours/days each week that these hours/days were, by virtue of custom and practice, their implied contractual hours of work.
Having considered all the arguments before it, the Tribunal determines that its jurisdiction in these appeals, under the Payment of Wages Act 1991, is to decideon the net issue as to whether a breach of the Act occurred in that the appellants were not paid for hours/days worked. The appellants’ evidence that they worked their original hours, for the times stated above, was unchallenged before the Tribunal. They were not paid for those hours.
The Tribunal finds that the dispute as to the change of hours of work is an industrial relations issue which is properly addressed through the industrial relations machinery. The suspensions arose as a result of the refusal of the appellants to comply with the revised rosters and the Tribunal makes no awards in respect of the suspension of the first appellant and the late second appellant.
Being satisfied that the non-payment for the hours worked is a breach of the Payment of Wages Act, the Tribunal varies the Rights Commissioner’s decisions to the extent that it awards:
the first appellant €97.51 in respect of 7 hours’ work.
the third appellant €81.18 in respect of 1 day’s work.
the fourth appellant €101.48 in respect of 1 day’s work (7.5 hours).
It was agreed between the parties that the appeal of the late second appellant should proceed. The only evidence before the Tribunal relating to this appeal is that the claim is for the payment of €365.31 under the Act. This includes a claim in respect of payment for the three days’ during which the late second appellant was on suspension. Accordingly, the Tribunal makes an award in favour of the late second appellant in the sum of €365.31 less 3 days’ pay.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)