ADJUDICATION OFFICER DECISION/ RECOMMENDATION

Adjudication Decision Reference: ADJ-00000859

Complaints for Resolution:

Date of Adjudication Hearing: 12/04/2016

Workplace Relations Commission Adjudication Officer: John Walsh

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Section 13 of the Industrial Relations Act 1969 and under section 6 of the Payment of Wages Act 1991 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

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Complainant’s Submission:

The Complainant commenced employment on 27 Oct 2015 with the Respondent as a trainee mechanic. He was dismissed fro his employment on 5th December 2015. He was employed at a rate of €197.47 gross per week for working a 40 hour week. He has filed two separate complaints against the Respondent with WRC.

Complaint 1 – filed under Section 13 of the Industrial Relations Act, 1969.

Reference No. – CA-00001297-001

The Complainant’s representative stated that the Respondent made an unlawful deduction from his wages following damage to a sun visor in the workshop. The Complainant objected to this deduction being made and this led to a dispute with the Respondent. He arrived for work on the 5th Dec 2015 and was summoned to the Respondent’s office. Discussions took place regarding the deduction from his wages and then the Respondent suggested ‘that you must not want to work here.’ He requested that he be allowed to return to the work floor but he was dismissed and not allowed to collect his personal belongings. Some time later his tools and tool chest were placed outside the building in the pouring rain. He was dismissed by the Respondent without due process or fair procedures contrary to the terms of the Industrial Relations Act, 1969.

Respondent’s Submission and Presentation:

The Respondent's representative stated that the Complainant was not an employee of the organisation as he was hired on a trial basis. The Respondent made a deduction of €60 from the Complainant’s wages as he was responsible for damaging a sun visor in the workshop. The Complainant agreed with the floor manager that this deduction should be made. The Respondent denies that the Complainant was dismissed on 5th Dec 2015 but that he verbally resigned from his position during a meeting with the Respondent. The Respondent regrets his decision to resign as the complainant would have been offered a full-time position as an apprentice mechanic. He was advised by e-mail on 5 Dec 2015 that his position is still open to him.

Findings:

The Complainant was hired as an employee of the organisation from 27^th Oct 2015. The Complainant’s dismissal followed the deduction of €60 from his wages. The Complainant was aggrieved at the manner in which this deduction was made as he felt he was not responsible for the damage caused. He was invited to a meeting with the Respondent on 5th Dec 2015 to discuss this matter. He was not afforded notice and was not advised he could have representation at this meeting. Based on the evidence presented by both parties and on the balance of probability I find that the claimant was dismissed without due process or fair procedures.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Recommendation:

Based on the evidence presented at the hearing and on the balance of probability I recommend that this complaint is well founded. I recommend that the Respondent pay to the Claimant Compensation in the sum of €500 for being unfairly dismissed contrary to the terms of Section 13 of the Industrial Relations Act, 1969.

This sum should be paid within 6 weeks of the date of this Recommendation.

Complaint 2- filed under section 6 of the Payment of Wages Act, 1991.

Reference no. CA- 00001267-001

Complainant’s Submission:

The Complainant’s representative stated that the Complainant was instructed by his floor manager to remove a sun visor from a truck. He removed the visor and left it against a wall as it was going to be fitted that day. However the visor was not refitted that day and remained there for some days. In the meantime he and another junior employee were given the task of removing the truck wheels. During this procedure a wheel his fellow employee had fell and broke the sun visor. Both of them were blamed for the damage and were verbally advised by the Respondent that they would have to pay for the damage caused and that the total amount was €240. €60 was deducted from his wages as a tools deduction. He was never informed by the respondent that he would be financially responsible for any breakages. The Respondent also failed to pay him wages for 3th, 4th and 5th Dec 2015. This had nothing to do with the sun visor incident.

Respondent’s Submission:

The Respondent’s representative stated that both the Complainant and his colleague were responsible for the damage caused to a sun visor which they removed from a truck. The cost of replacing the visor was €240. However only €60 was deducted from each of the parties. This was reasonable in the circumstances.

On examination of the company payroll records it is clear that the Complainant worked on 3th Dec 2015, that he was absent from work on 4th Dec and that he was at work for 2 hours on 5th Dec 2015. The company had no objection to paying the complainant for 3 and 5 December 2015.

Findings:

Section 5(1) of the Payment of Wages Act, 1991 provides:

(1) “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless-

(a) The deduction (or payment) is required or authorised to be made by virtue of any statute or instrument made under statute,

(b) The deduction (or payment) is required or authorised to be made by virtue of a term of the employee’s contract of employment included in the contract before and in force at the time of, the deduction or payment, or

(c) In the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of-

(a) Any act or omission of the employee, or

(b) Any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment, unless-

(i) The deduction is required or authorised to be made by virtue of a term (whether express or     implied and if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) The deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of wages of the employee), and

               (iii) Before the time of the act or omission …”

The deduction of €60 made by the Respondent from the Complainant’s wages is contrary to section 5 (1) section (a) and (b) of the Payment of Wages Act, 1991.

The Respondent accepts that the Complainant did not receive wages for 3rd and 5th Dec 2015.

Decision:  

Section 40 (1) (4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Based on the evidence presented at the hearing I find that the complaints are well founded. I order the Respondent to pay to the Complainant Compensation as follows for breaches of Section 6 of the Payment of Wages Act, 1991.

1. €60 for an unlawful deduction from his wages and

2. €49.36 for 10 hours unpaid wages.

The total sum of €109.36 must be paid within 6 weeks of the date of this decision.

DATE: 29^th June 2016