The High Court allowed Dunnes Stores (Cornelscourt) Limited’s appeal against an Employment Appeals Tribunal determination concerning weekly service pay and a long service increment for two employees.
In a judgment delivered on 9 December 2005, Finnegan P. held that the tribunal had erred in law because it did not determine the remuneration properly payable to the employees. That question was essential to deciding whether there had been an unlawful deduction under the Payment of Wages Act 1991. The appeal was brought on a point of law under section 7(4)(b) of the Act.
The two respondents had been receiving weekly service pay: €3.81 for the first-named respondent and €3.17 for the second. After a Labour Court recommendation for a long service increment, Dunnes issued a memorandum in September 2002 providing an hourly increment for sales assistants with more than ten years’ service. It also said the old weekly service pay system would end for full-time staff with more than ten years’ service, while those with between five and ten years would continue receiving it until they reached ten years.
The employees complained to a Rights Commissioner that ending service pay when the increment was introduced was an unlawful deduction. The Rights Commissioner found for them on 1 December 2003. The Employment Appeals Tribunal upheld that decision on 10 August 2004.
On appeal, Dunnes argued that the Labour Court recommendation was not binding and that there was no agreement to pay both service pay and the new increment. The employees argued that correspondence and submissions showed an agreement to make both payments, making them properly payable under the Act.
Finnegan P. found that the documents relied on by the employees did not establish the alleged agreement; they instead contained a clear denial that such an agreement existed. No other evidence of an agreement had been offered. The judge said the tribunal had either failed to address what remuneration was properly payable or had implicitly found an agreement without evidence and in the face of the evidence.
The court concluded that there had been no deduction within the meaning of the Act: Dunnes had unilaterally increased the employees’ remuneration by making a payment recognising their long service beyond what had been payable before 18 September 2002. It allowed the appeal. The judgment does not set out a separate remittal or further order.