EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Wyse Transport Limited, PW667/2012
TE217/2012
WT348/2012
against the recommendation of the Rights Commissioner in the case of:
Darragh Ronan - Respondent
under
PAYMENT OF WAGES ACT, 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
ORGANISATION OF WORKING TIME ACT, 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. G. Hanlon
Members: Mr. B. Kealy
Mr. P. Trehy
heard this appeal at Dublin on 4th February 2014
and 27th May 2014
Representation:
Appellant(s) : Mr. Cathal McGreal BL instructed by:
John F. Kelleher, 4/5, St. Marys Terrace, Dunboyne, Co. Meath (4th February 2014)
Hennessey & Perrozzzi, Solicitors, Burgundy House, Foster Way, Swords,
Co. Dublin (27th May 2014)
Respondent(s) : Brendan Archibold, 89, Philipsburgh Avenue, Fairview, Dublin 3
This case came before the Tribunal by way of an appeal by an employer (appellant) appealing against the decisions of the Rights Commissioner reference numbers r-113417-pw-11/MMG, r-113424-te-11/MMG and r-113437-wt-11/MMG under the Payment of Wages Act, 1991, the Terms of Employment (Information) Act, 1994 and 2001 and the Organisation of Working Time Act, 1997 respectively.
This order should be read in conjunction with UD1435/2012. These cases were heard in tandum.
The decision of the Tribunal was as follows:-
On the second day of the hearing the appeal under the Organisation of Working Time Act, 1997 was withdrawn.
Background:
The respondent (employee) commenced employment with the appellant (employer) in February 2007 as a truck driver driving in the United Kingdom, on overnight trips. He worked Monday to Friday only. In 2010 a reduction in wages was requested by the employer. A number of employees agreed to this reduction and signed forms to that effect. The respondent did not. The respondent resigned his position on the 19th July 2011.
Respondent’s Case:
The respondent stated that he had never received a written contract of employment. He contended that a number of incidents occurred, he felt, gave him no alternative but to leave his employment.
On the 10th January 2010 he was aboard a ferry in Dublin Bay. He entered the restaurant, purchased some food and approached a table where a colleague (FS) was seated. He spoke to FS who swore at him and told him to go away. FS pushed him and he, the respondent, fell down on his arm. One of the crew from the ferry company called for an ambulance who later took him to hospital. He was released from hospital later that day and was absent for a time on certified sick leave. He reported the incident to two of the company Directors – KM and BW at a meeting the following week. They said they would look into the matter but never got back to him.
In May 2010 he had a traffic accident while driving in England.
In May 2011 he drove to work and left his car in the respondent’s yard while he went to work. On his return the following day he found his car covered in grease and oil. He contacted Km who said he would view the CCTV footage. KM contacted him and informed him there was nothing on the CCTV.
On the 19th July 2011 KM told him two trailers were to be taken to England. He began loading his trailer which was completed by 9a.m. A colleague (PW) approached him asking why he had been given the “easy” trailer. PW said he, the appellant, was taking drugs and everyone knew about it. The respondent replied no. PW pushed him and told him to get into his lorry as his name was on the paperwork. He went to the lorry and proceeded to pack up his belongings. He rang KM and told him that he could not take it anymore. KM said he would look into the matter and would get back to him. There was no contact.
He contacted BW and later met him as he still had some company property. BW asked him to sign a form to receive his P45 and his holiday money.
The appellant told the Tribunal that he had left his employment as he could no longer work there. His wages had been cut by 39% without agreement and he had been treated badly.
He gave evidence of loss.
On cross-examination he said the incident on the 19th July 2011 was the last straw. When asked, he refuted he had received a contract of employment and was not aware if any of his colleagues had one. When asked if he had suffered a panic attack on the day of the alleged incident on the ferry, he replied that he had not before this incident had occurred. He told the Tribunal that he had been nervous of returning to work.
When put to him that KM would say that he, the respondent, had never made any complaints, he replied that KM had admitted he had the hearing in the Rights Commissioners. He agreed, when asked by the Tribunal, that there had been no incidents between May 2010 and May 2011.
On the second day of the hearing both representatives gave submissions in respect of the two remaining appeals.
In respect of the appeal under the Payment of Wages Act, 1991 the respondent’s representative stated that his client had not agreed to a deduction in his wage rate.
In respect of the appeal under the Terms of Employment (Information) Act, 1994 and 2001 the respondent’s representative reiterated that his client had not received a written contract of employment and therefore was entitled to an award under the Act.
Appellant’s Case:
A former colleague (FS) gave evidence. He knew the respondent had no prior difficulties with the appellant.
On the 10th January 2010 he had been in the restaurant of a ferry when the respondent and a friend entered. The respondent approached him and he, the witness, told the respondent to walk away. The witness told the Tribunal that in the previous December the respondent told the witness that he would report him to the authorities for driving longer hours. The witness had been pulled in by the authorities and questioned.
He told the Tribunal that he had not pushed the respondent but had told him to go away as he did not want to speak to him. The respondent threatened him and told him he would slit his throat. The witness walked away. He saw the respondent walk towards the lift. He reported the incident to KM.
On the second day of the hearing both representatives gave submissions in respect of the two remaining appeals.
In respect of the appeal under the Payment of Wages Act, 1991 the appellant’s representative stated that a reduction in wages been implemented by the appellant to all staff but this was not a deduction and therefore not unlawful.
In respect of the appeal under the Terms of Employment (Information) Act, 1994 and 2001 the appellant’s representative stated that the respondent had received a contract of employment but had not returned a signed copy of same to his client.
Determination:
The Tribunal have carefully considered the sworn evidence and submissions adduced in these matters.
In respect of the appeal under the Payment of Wages Act, 1991 the Tribunal finds in favour of the appellant as, it finds, the decrease in wages was due to a reduction due to the economic climate and not a deduction. Accordingly the appeal is upheld and the Decision of the Rights Commissioner is set aside.
In respect of the appeal under the Terms of Employment (Information) Act, 1994 and 2001, the Tribunal finds in favour of the respondent as, it finds, he had not received a written contract of employment. Accordingly the appeal is dismissed and the Rights Commissioner’s Determination stands awarding the respondent €1,500.00 under the Act.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)