Noonan Services Group Ltd (Represented by Management Support Services) v Dureza Sumayao

• Jurisdiction: Ireland
• Judgment Date: 13 December 2022
• Judgment citation (vLex): [2022] 12 JIEC 1301
• Docket Number: FULL RECOMMENDATION ADJ-00014745 CA-00018937-001 DETERMINATION NO. PWD2252 SECTION 7(1), PAYMENT OF WAGES ACT, 1991
• Court: Labour Court (Ireland)

PARTIES:

Noonan Services Group Ltd (Represented by Management Support Services)

and

Dureza Sumayao

FULL RECOMMENDATION

PW/20/25

ADJ-00014745 CA-00018937-001

DETERMINATION NO. PWD2252

SECTION 7(1), PAYMENT OF WAGES ACT, 1991

Full Court

DIVISION:

Chairman: Mr Foley

Employer Member: Mr Marie

Worker Member: Ms Tanham

SUBJECT:

1 1. Appeal Of Adjudication Officer Decision No. ADJ-00014745 CA-00018937-001

BACKGROUND:

2 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 6 December 2022 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-

DETERMINATION:

3 This matter comes before the Court as an appeal by Noonan Services Group Ltd (the Appellant) of a decision of an Adjudication Officer given under the Payment of Wages Act, 1991 (the Act) in a complaint made by Ms Dureza Sumayao (the Complainant).

4 The Complainant communicated with the Court by ‘phone and e-mail shortly before the hearing of the Court to advise that she would not be attending the hearing. She proffered no reason for her non-attendance and did not seek a postponement or any change to the arrangements made to hear the appeal. She had earlier provided the Court with a written submission in advance of the hearing.

Summary position of the Complainant as set out in her written submission

5 The Complainant submitted that she had been employed in her role by a previous employer until October 2010 when her employment transferred to the Appellant under a Transfer of Undertakings within the meaning of the Regulations governing such transfers.

6 She contended that, prior to her transfer, she had received pay increases consistent with increases made to the minimum statutory rate set out in a series of Employment Regulation Orders (EROs) enacted during her employment. She submitted that these increases were applied to her rate of pay notwithstanding her rate of pay at all times prior to the transfer exceeded the minimum statutory rates of pay set out in successive EROs.

7 She submitted that her rate of pay at the date of transfer was €10.98 per hour and remained so at the date of her complaint made on 4 ^th May 2018.

8 She submitted that the Appellant failed to increase her rate of pay when ERO's were enacted since 2010 and that, consequently, she was not paid the wages properly payable to her during the cognisable period for the within complaint made on 4 ^th May 2018..

9 The Complainant submitted her contract of employment to the Court as part of her written submission which did not contain a provision as regards application of increases consistent with increases in the statutory rates contained in ERO's when enacted. She also submitted pay slips dating from 2007 and a series of internal e-mails both from her previous employer and the Appellant.

Summary position of the Appellant

10 The Appellant submitted that no element of the contract of employment of the Complainant at the time of transfer in 2010 demonstrated an entitlement to receive a pay increase on each occasion when an ERO was enacted.

11 The Appellant accepted that an internal e-mail of the previous employer dating from 2007 demonstrated that on that occasion a pay increase was applied to the Complainant which was equivalent...