This issue arose in the case of Kostal Ireland Gmbh & Delee, PWD 2212.

The complainant in this case referred to the case of Valans -v- Tesco Ireland Limited 2020 ELR 12 and Dunnes Stores (Cornelscourt) Limited -v- Lacey 2007, 1 I.R.478 which set out that any consideration of a complaint under the Act must first consider whether the wages which were properly payable on that occasion.

In UCC-v-Finbarr Waldron, PWD 212, the complainant pointed out that the Court in that case confirmed that:

“the Act does not make provision for the determination of what wages are properly payable on an occasion on the basis of what the Court might think reasonable.  Rather, the Act requires the Court, having investigated the matter, to make a determination as regards what wages were properly payable on a given date by reference to objective criteria”.

The case of Stefan Chmiel & Others -v- Concast Precast Limited PWD 75/20, is one where the Labour Court held that:

“in common law there is no general right to lay-off/short-time without pay and while there are limited circumstances wherein there will be such a right, the employer must demonstrate that it has been a custom and practice of the workplace and the custom must be reasonable, certain and notorious”

The complainant contended that the short-time did not come within the definition as set out in the Redundancy Payment Acts 1967 or the definition of lay-off as defined in that Act.  The precedent case that they referred to was the case of Industrial Yarns -v- Greene 1984 IRLM 15, in which case the Court stated:

“if there is no contractual power (expressed or implied) in the Contract of Employment to suspend the operation of the contract for a limited period, then by ceasing to employ an employee or refusing to pay him wages, the employer is guilty of a serious breach amounting to repudiation of it”

In this case the employer argued:

there is a reasonable, certain and notorious custom and practice, that lay-off in Ireland is without pay since the coming into force of the 1967 Act.  In all the recent EAT cases, the EAT found that general custom and practice that temporary lay-off (duly notified under the Redundancy Payment Act, 1967 to 2014 is generally, by notorious custom and practice unpaid)”

The Court in this case pointed out that the case of Balans -v- Tesco Ireland Limited is one where it is established that a deduction within the meaning of the Act has been made from the wages properly payable on the occasion and that the Court would then consider whether the deduction was lawful.  The Court found that the difference between what was properly payable and what was actually paid was either €1,325.61 or €1,348.26.  The complainant was in receipt of Social Welfare in the sum of €243.60.  The Court pointed out that in essence the appellant contended that the use of the word ‘lay-off’ in the contract should be interpreted as having a wider meaning than the term ‘lay-off’ as used in the Act of 1967 and that wider meaning should be understood as over-riding any contractual commitment to provide the working hours set out in the contract and on such an occasion where those hours are not provided to undermine the requirement resting on the appellant to pay wages agreed in the Contract of Employment.  The Court pointed out that in the view of the Court, any such contractual provision would require to be explicitly expressed and clear in meaning and intent in order for it to be taken as removing from the complainant the protection afforded by the Act in Section 5(1).   In this case the Court awarded the sum of €650 which the Court considered reasonable.  This however is an important case in setting out the law in relation to this matter.

*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.

*In contentious cases a solicitor may not charge fees or expenses as a proportion or percentage of any award or settlement.

Richard Grogan

Author Richard Grogan

More posts by Richard Grogan
English EN Hungarian HU Polish PL Russian RU