FULL RECOMMENDATION
SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : M D BURNS & CO LTD M D BURNS (REPRESENTED BY ADARE HRM) - AND - PETER DZVONIK (REPRESENTED BY KENNY SULLIVAN SOLICITORS) DIVISION : Chairman: Ms O'Donnell Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Adjudication Officer Decision No. ADJ-00002730
BACKGROUND:
2. This is an appeal of an Adjudication Officer's Decision made pursuant to Section 7(1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 23 November, 2017 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DETERMINATION:
This an appeal by Peter Dzvonik against an Adjudication Officer’s Decision ADJ- 00006952 given under the Payment of Wages Act 1991(the Act). The Adjudicator held that the claim fell as the payment of wages had been made.
Background
The Complainant commenced employment with the Respondent on 22ndMarch 2010. His employment came to an end by reason of redundancy on 29thMarch 2016. The Complainant worked in the Respondents shop in Bray which closed in December 2015. He was offered work in another shop owned by the Respondent in Clondalkin.
The Complainant lodged a complaint under the Act which contained a number of elements some of which have since been resolved. The claim before the Labour Court refers to 1) seven weeks of work not paid 2) one month not paid €1 an hour increase and 3) non-payment of one month’s statutory notice. The Complainant also had a complaint under the Redundancy Payment Act, the Adjudication Officer found in his favour on that issue and the decision has not been appealed.
Complainant’s case
When the Respondent told the Complainant that he was closing the shop in Bray where the complainant worked he advised him that if he took up employment in the Clondalkin shop he would increase his rate of pay by one euro an hour. The Complainant worked in the Clondalkin shop for a trial period during the month of January at his normal rate of pay but believes he should have been paid the extra one euro an hour for that period of time. In the course of the Labour Court hearing the representative for the Complainant confirmed that this increase had never been implemented and therefore it could not be a deduction in accordance with the Act.
In relation to the seven weeks of work not paid for the Complainant’s representative indicated that he was available for work after the trial period ended in January but was not rostered for any shifts. He drew the Court’s attention to a letter dated 1stFebruary 2016 which noted “Our Client has not been rostered to work in the coming six weeks the circumstances where is available and ready to work albeit in Bray as per the terms of his employment”. (sic) The third element of the Complainant’s claim is that he was not paid the one months’ statutory notice that he was entitled to as a result of being made redundant.
Respondent’s case
The Respondent closed the shop in Bray where the Complainant worked in December 2015. He offered the Complainant a position in another shop he owned based in Clondalkin. The Complainant agreed to do a trial run in the Clondalkin shop for the month of January. At the end of the trial period in January 2016 the Complainant told the manager in the Clondalkin shop that he did not want to be included in the roster that she was preparing for the next six weeks. This was followed up by letter dated 1stFebruary 2016 from the Claimants representative which indicated he was only available to work in Bray. The Respondent had closed the shop in Bray in December 2015 and nobody was rostered to work there from January 2016 onwards.
In relation to the third element of the claim the Respondent has accepted the Adjudication Officers decision in relation to making a redundancy payment but does not believe the Complainant should get the statutory notice as he had submitted a resignation in February.
The applicable law
Section 5 of the Payment of Wage Act 1991 deals with regulation of certain deductions made and payments received by employers, section5(6) states;
- “Where—
- (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or
(b) [….]
- (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or
As the Respondent has accepted the Adjudication Officers decision in relation to redundancy then the complainant was entitled to be given one month’s statutory notice or payment in lieu. The complainant did not receive the required notice so the payment of 4 week’s wages in lieu is properly payable to him. The non-payment of same is a deduction and therefore a breach of the Act.
In relation to the seven weeks work unpaid, it is clear from the correspondence of the 1stof February 2016 from the Complainants representative that his availability to be rostered for work was conditional on him being rostered in a work place that was no longer operational. This fact was known to the Complainant at the time the letter was submitted. He did not attend for work or make himself available to be rostered at the location where work was available therefore it does not appear to the Court that wages are properly due to him for that period.
Conclusion
The Court finds that work was available for the Complainant in the alternative location in the period claimed but he did not make himself available to be rostered in that location. On that basis the Court does not find in favour of the Claimant in respect of that element of his claim.
The Court finds that the Complainant should have been given a month’s statutory notice and therefore awards €1,464 euro, being 4 weeks wages in lieu of notice. The decision of the adjudicator is set aside.
The Court so decides.
Signed on behalf of the Labour Court
Louise O'Donnell
07 December, 2017.______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.