William P Keeling & Sons Unlimited Company (Represented by Irish Business and Employers' Confederation) v Anna Domniak (Represented by Hazel Fannon, B.L., Instructed by Hoban Boino Solicitors)

JurisdictionIreland
CourtLabour Court (Ireland)
Judgment Date10 February 2020
Judgment citation (vLex)[2020] 2 JIEC 1014
Docket NumberFULL RECOMMENDATION DETERMINATION NO.PWD208 ADJ-00014855

Labour Court

FULL RECOMMENDATION

PW/19/78

DETERMINATION NO.PWD208

ADJ-00014855

PARTIES:
William P Keeling & Sons Unlimited Co (Represented by Irish Business and Employers' Confederation)
and
Anna Domniak (Represented by Hazel Fannon, B.L., Instructed by Hoban Boino Solicitors)
DIVISION:

Chairman: Mr Geraghty

Employer Member: Ms Doyle

Worker Member: Ms Tanham

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

SUBJECT:
1

1. Appeal of Adjudication Officer Decision No: ADJ-00014855.

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 4 February 2020 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:-

DETERMINATION:
Background
3

This is an appeal under the Payment of Wages Act 1991, ‘the Act’, by Ms. Domniak, ‘the Complainant’, of a Decision by an Adjudication Officer, ‘AO’, that William P Keeling and Sons Unlimited, ‘the Respondent’, had not breached her rights under the Act.

4

The Complainant is a Horticultural Farm Worker and is a permanent employee of the Respondent. She took approved leave from 18 December 2017 to 17 January 2018. On 8 December 2017, she was written to by the Respondent to state that, in accordance with the lay-off clause in her contract, her seasonal lay-off would be from 22 January 2018.

5

The Respondent had intakes of staff on 8 January 2018 and 15 January 2018. No further staff were taken in until 19 February 2018, when the Complainant was taken back from lay-off.

6

The Complainant offered to alter the timing of her annual leave but this was not accepted by her line manager.

7

The Complainant questioned the basis of the lay-off and subsequently lodged a complaint under the Act at the WRC. The AO found against the Complainant who appealed this Decision to the Court.

8

Complainant's arguments

9

Section 5 (6) of the Act provides that an employer cannot make a deduction from wages that are ‘properly payable’ to an employee. The Complainant's contract provides for an hourly rate of pay and this is properly payable to the Complainant for the period of the lay-off as the Complainant was available for work from 18 January 2018 and the employer had work available. In this time the employer provided work to other employees.

10

This situation does not meet the definition of lay-off under s.11 of the Redundancy Payments Act, which states that employment must cease temporarily because the employer is unable to ‘provide the work for which the employee was employed to do.

11

Note: Various cases under the Redundancy Payments Act and the Unfair Dismissals Act were cited in support of this contention and this argument is dealt with in the Determination below.

12

The Complainant was targeted for lay-off because of the timing of her annual leave and had offered to her manager that she would be prepared to alter her period of leave but this had not been accepted.

13

There were no clear criteria for the lay-off. Such criteria should be reasonable and should be applied in a fair manner.

14

The letter of 8 December 2017 referred to selection for lay-off being determined by performance, skills and other metrics while, at the WRC, the Respondent deviated from this argument in order to rely on an argument in respect of intake dates. However, other employees returned to work...

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