ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000157

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00000219-001	13/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00000219-002	13/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00000219-003	13/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00000219-004	13/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00000219-005	13/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00000219-006	13/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00000219-007	13/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00000219-008	13/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973	CA-00000219-009	13/10/2015
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00000219-010	13/10/2015

Date of Adjudication Hearing: 15/02/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the relevant sections of the Legislation underlying the Complaints listed from 1 to 10 above, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

1: Complainant’s Submission and Presentation:

I did not receive a written contract of employment or statement in writing as to the terms of my employment.
I was not notified in writing as to any change in relation to my weekly pay nor was this agreed before unilateral changes were made by my employer.
I always received €500.00 net pay into my bank account every week from my employer. This started to be unilaterally decreased to various amounts from 31st July 2015 - 11th September 2015, ranging from approximately €25 deductions to €40 deductions. Please see redacted bank statements with highlighted transactions.
When I worked on Sundays I did not receive an increase in my wages.
I did not receive an increase in my wages or any premium for working on a Public Holiday.
My working day varies, usually between 9 and 13 hours per day. We are required to take a break after four and a half hours of work and to log these breaks; however I was pressured by my employer to work through my breaks. When the truck was being loaded or unloaded I was instructed to log my break for the Company records but I was told to continue to work in any event during this period despite logging the break.
My employer has called me stupid and various other abusive names. The abuse escalated into physical on the 11th September 2015. I was driving a truck to connect to the cargo part of the truck. A colleague who was responsible for maintenance was present and attempting to clamp the cargo part of the truck onto the driving part of the truck. I went to reverse the truck into the cargo part of the truck on the request of my maintenance colleague as is normal practice. The maintenance colleague had been driving the vehicle before me. He had left the truck in forward drive mode rather than reverse mode. As I began to drive the truck it moved forward rather than backwards. I stopped it immediately. The respondent shouted "What the fuck are you doing, you're a fucking idiot. Get out of my truck". He physically grabbed me and pulled me out of the truck. I was in shock and left work and as I was leaving he said he did not need me he had many drivers. I then received an email stating "Termination of employment due to you walking out of work and abandonment of your job".
My employer has treated me in a derogatory and discriminatory manner that he would not treat an Irish national employee by calling me derogatory names and physically assaulting me.
My employment was terminated by email dated 11th September 2015. I did not receive any period of notice or payment in lieu thereof. I worked with the respondent for 2 years and 3 months and should have been entitled to two months notice; as such I am entitled to two weeks notice or payment in lieu thereof in the sum of €1,000.00 which is two months net pay.
My employer did not notify me of the working hour’s regulations applying to the road transport sector.

2: Summary of Respondent’s Submission and Presentation:

The Respondent chose to deal with the issues in the following fashion

2:1 The Unfair Dismissal /Constructive Dismissal Claim / Complaint no 7 / CA-00000219-007

The Respondent, a Road Transport Company, maintained that the Complainant, a HGV Driver, chose to leave his employment voluntarily even though they had work for him.

An incident, involving a HGV Tractor unit and a HGV trailer, had occurred on the Friday 11^th September 2015. To prevent a potentially serious accident occurring the owner of the Company had physically removed the Complainant from the Tractor unit and a strong exchange of language had taken place. Following this incident on Friday at approximately noon the Complainant had taken his driver card and walked off the site. Various communications by text /phone message followed between the parties which culminated in a meeting at the site on Monday 14^th at approx. 12.30. The meeting was initially between the sister of the owner, Ms.SM, and the Complainant but joined later by the Owner, Mr.DM. At this meeting the Complainant continued to maintain that he wished to leave the employment of the Company.

The Complainant did offer to return if the Respondent immediately put €500 into his, the Complainant’s, Bank account.

In summary the Respondent maintained that the Complaint had effectively resigned voluntarily. He had secured other driving work within a week.

2:2 Terms of Employment (Information) Act 1994 - Complaints CA-00000219-001 and 002

The Respondent attached a copy of the Company’s standard T&Cs – however a signed copy from the Complainant or the Respondent was not available. Any changes to the Complainant’s rate of pay or working patterns (5/6 day week) were agreed with him.

2:3 Payment of Wages Act 1991 Claims - CA-00000219-003

The changes to the Complainant’s wages were as result of a change from a 6 to a 5 day week, at his request. No liability attaches to the Respondent.

2:4 Organisation of Working Time Act, 1997 CA-00000219-004, 005 & 006

The Respondent paid a Consolidated Rate of Pay which covered all liabilities for Sunday and Public Holiday payments. Breaks were to be taken as set out in the T&Cs (referred to above) provided to all employees.

2:5 Employment Equality Acts claims CA-00000219-008

The Respondent maintained that only one incident, namely the 11^th September 2105, could, be cited by the Complainant. A safety Critical “Near miss” situation had taken place and the owner would have shouted and used strong language with any driver, irrespective of any nationality. There was simply no prima facie case as required by the Equality Acts for a claim of discrimination.

2:6: Minimum Notice claim CA-00000219-009

No claim arises as the Complainant left voluntarily and no entitlement to Notice Pay arises.

2:7: Road Transport Regulations / Mobile Workers CA-00000219-0010

The Respondent was fully familiar with all required regulations and had been required to attend CPC training.

3: Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act and the relevant Sections of the Acts listed in the Complaints.

4: Issues for Decision:

As listed above in the Complaints numbered 1-10 - CA-00000219-001 to CA-00000219-010

5: Legislation involved and requirements of legislation:

As listed above in the Complaints

6: Decision:

As it was agreed at the oral hearing to take the UD Act, 1977 claim first I will begin with this.

6:1 UD Act, 1977 Claim

There was no doubt between the parties that a significant physical altercation took place on the 11^th September 2015 which resulted in the Complainant going home early.

Contacts took place over the weekend and a meting to discuss matters took place on Monday the 14^th – initially between the Complainant and the Sister of the Respondent but later joined by the Respondent himself. The Complainant was by himself. His command of English was adequate for day to day matters but would be challenged in any formal proceedings.

The notes taken by the Respondent’s sister were given as evidence and presented to the oral hearing.

The notes, in the opinion of the AO, were written possibly to cast the actions of the Respondent in the best light and I treated them with great caution. It was clear that a serious incident had occurred and that available written records were being constructed in a damage limitation mid set.

Differing versions of events, not only on the 11^th of September but of events in the preceding months were presented. It was clear that the Company was a small Road Transport operation in a challenging tight margin business setting and general administrative routines may not have been quite what they should have been

However on balance I found the evidence of the Complainant to be less manufactured and more likely to be closer to the actual facts.

Accordingly I find his claim of Constructive Dismissal to be well grounded.

6:2 Terms of Employment (Information) Act 1994- Complaints CA-00000219-001 and 002

I found it hard to find evidence to support the Respondent position here. The T&Cs presented to the hearing were unsigned by the Complainant or the Respondent and in evidence were referred to as dating possibly to 2012.

In any event hey were in quite complex English and would have been beyond the Complainant to fully understand.

In find the claim under the Terms of Employment (Information Act) 1994- well grounded

6:3 Payment of Wages Act 1991 Claim - CA-00000219-003

Little meaningful evidence was presented here but on balance I found the explanation by the Respondent reasonably convincing – the employee had changed his weekly working pattern and the changes in his payment seemed to reflect this more that any grounds for a breach of the Act.

Accordingly I did not find this claim to be well grounded.

6:4 Organisation of Working Time Act, 1997 CA-00000219-004, 005 & 006

The complete paucity of any evidence other than the assertion that the Complainant knew that the rate was “Consolidated” and by his working Sundays, Public Holidays and accepting the arrangements for work breaks he acquiesced in these arrangements.

In the complete absence of any detailed evidence or records I have to accept that the Complainant has more probably got the veracity of events on his side.

I find his claims under these headings well founded.

6:5 Employment Equality Acts claims CA-00000219-008

Section 85 A of the Employment Equality Acts requires that a prima facie case be demonstrated before a claim can be considered. In this case only one evidenced incident occurred, namely the altercation on the 11^th September 2015. There was considerable doubt that it was primarily related to race or nationality. In relation to alleged incidents in some earlier months there was simply no evidence.

Accordingly in the absence of any evidence in relation to earlier matters I have to find this Equality claim not to be well founded

6:6 Minimum Notice Act claim CA-00000219-009

As the dismissal was deemed to have been Constructive I find this claim to be well founded.

6:7 Road Transport Regulations / Mobile Workers CA-00000219-0010

In the absence of evidence, other than the Respondent’s assertions, I have to find this claim well founded. Section 12 of the Statutory instrument requires Employers to maintain records –none appeared to be available.

7: Redress

1: UD Act, 1977 Claim

As the Complainant secured employment within one week of leaving the Respondents’ employment I award a compensation lump sum of € 1,000 - approximately 2 weeks pay

2: Terms of Employment (Information Act) 1994- Complaints CA-00000219-001 and 002

For breaches of this Act in relation to both complaints referred to I award a compensation lump sum of €500 (one weeks pay) in total.

3: Organisation of Working Time Act, 1997 CA-00000219-004, 005 & 006

For breaches of this Act and having regard to all the circumstances in relation to the Complaints listed above I award a compensation lump sum of € 500 –approximately one weeks pay in total

4: Minimum Notice claim CA-00000219-009

For breaches of this Act I award a compensation lump sum of € 500.

5: Road Transport Regulations / Mobile Workers CA-00000219-0010

Having regard to all of the circumstances involved in this case I award a compensation sum of €250 to the Complainant for breaches of this Act

Dated: 11/05/2016