EMPLOYMENT APPEALS TRIBUNAL
APPEALS OF: CASE NO.
Employer - appellant UD840/2012
PW285/2012
against the recommendation of the Rights Commissioner in the case of:
Employee - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms S. Behan
Members: Mr D. Hegarty
Mr D. McEvoy
heard this appeal at Cork on 8th November 2013
Representation:
_______________
Appellant: In Person
Respondent: Vincent Toher & Co, Solicitors, Legal Chambers,
2 Washington Street West, Cork
This case came before the Tribunal by way of an employer appeal of the Rights Commissioner Recommendation ref: r-111570-ud-11 under the Unfair Dismissals Acts, 1977 to 2007 and the Rights Commissioner Decision ref: r-111569-pw-11 under the Payment of Wages Act 1991. Hereinafter the appellant shall be known as the employer and the respondent the employee.
Appellant’s (employer’s) Case
The appellant company is in the contract cleaning business. The respondent employee was employed as a cleaner to service one of the contracts with another employee (the employee concerned mother).
On the 8th of June 2010 the employer received a phone call from their client complaining about the employee’s timekeeping. The complaint concerned the employee signing in for work but not actually being on the premises. The employee was called to a meeting to answer the allegations that he was not at work at the times stipulated on his timesheet. The employee admitted to not coming to work on time. When asked why he was signing in but not working he answered that his mother told him to do it. The employer informed the employee that his actions constituted theft as he was being paid for work that he did not do. The employer informed the employee that his actions merit dismissal. The employee pleaded for his job, apologised and showed great remorse so the employer decided to give him another chance.
The sanction for the employee’s actions was not being paid for two weeks. The two weeks pay deducted accounted for the hours claimed but not worked by the employee. The employer had not been paid for the work by their customer. This two weeks pay deduction was agreed and accepted by the employee but is now the subject of the Payment of Wages claim before the Tribunal.
The employee’s behaviour improved temporarily but then the employer received further complaints about the employee’s manner, namely raising his voice to a manger and not completing his work. The employer spoke to the employee about his work and manner. The employee was given warnings through the employer’s supervisor. The employee had been working 30-40 hours per week but by December 2010 the employee was reduced to working one day a week. He failed to appear for even the one day of work which meant the employer had to get a replacement for him at short notice. In January the employer phoned him to ask why he wasn’t coming to work to which he replied that he wasn’t being paid so he wasn’t coming to work. The employer dismissed the employee in February 2011 with the P45 issuing on the 4th of March 2011.
The employee was not put on lay-off or ever told that he was being put on temporary lay-off. The employee never told the employer that he was not going to attend work as he had no money or that he was going on holidays.
The cleaning contract in question was due to expire in January 2011. Due to the importance of this contract to the employer, the employee’s hours had been reduced to one day a week and a family member of the employer had been sent in to do the remaining work. This was necessary in order to avoid losing the contract due to the employee’s actions and poor standard of work. Since the employee’s dismissal there have been no further complaints and the employer has retained this contract.
Respondent’s (employee’s) Case
The employee maintains he only received 1 verbal warning for an unrelated offence. The employee accepts he did not always do all the work but this was because the employer failed to provide adequate equipment.
The security guard was late at the premises and that is why he was late starting his work. The employee had no choice in being late to start work as he could not enter the building before security opened it. He accepts that this is why his wages were deducted and although he accepted it at the time he does not agree with it.
The employee was informed that there was a problem with the contract and he would probably have to be laid off. The employee requested some hours in order to claim Social Welfare. The employer agreed to this. In January 2011 as there was a delay in receiving his wages, the employee had no money to enable him to attend work. The employee informed the employer that he was going on holidays in February so they would need to find cover for him. On his return he was informed that he was dismissed.
The employee gave evidence of his loss and his attempts to mitigate his loss.
Determination
After carefully considering the evidence adduced, the Tribunal upset the decision of the Rights Commissioner ref: r-111570-ud-11 under the Unfair Dismissals Acts, 1977 to 2007 and find that the respondent employee was not unfairly dismissed.
The Tribunal varies the Rights Commissioner Decision ref: r-111569-pw-11 under the Payment of Wages Act 1991. The respondent employee concedes that he did accept the deduction of his wages. The respondent employee is entitled to his minimum notice and therefore the Tribunal affirms that portion of the Rights Commissioner Decision and awards the employee €700.00 in lieu of notice.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)