ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003180

Complaint for Resolution:

Date of Adjudication Hearing: 11^th August 2016

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 21^st May 2016, the complainant referred a complaint to the Workplace Relations Commission pursuant to the Payment of Wages Act. The complaint was scheduled for adjudication on the 11^th August 2016. Two complaints pursuant to the Organisation of Working Time Act were referred to investigation, as opposed to adjudication.

The complainant was in attendance at the adjudication and was represented by Marius Marosan. Two witnesses attended for the respondent. An interpreter attended to facilitate the giving of evidence.

In accordance with section 41(4) of the Workplace Relations Act, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at the Hearing:

Complainant’s Submission and Presentation:

The complainant was engaged by the respondent as a cleaner and the respondent is the provider of cleaning services. The claim relates to the Payment of Wages Act, in particular to the payment of the last week’s wages and notice pay. At the adjudication, the complainant raised the issue of outstanding annual leave owed to the complainant.

The complainant outlined that he commenced employment on the 8^th August 2015 and this came to an end on the 8^th October 2015. In the course of the adjudication, the complainant acknowledged that he commenced working for the respondent on the 31^st August. He also accepted that he did not have the 13 weeks of service to be entitled to statutory minimum notice of one week.

The complainant said that he was required to collect colleagues to drive together to cleaning jobs around the country. He would receive a telephone call the night before any job to tell him where he had to go. This meant leaving his home in the early hours of the morning, for example at 3.50 am. These hours should have counted as working time. In respect of the speeding ticket, the complainant said that many drivers used the vans and he was never given the date and location where the speeding offence took place. He paid the fine but said it was unfair the way the respondent sought to pass on the fine to him

In respect of the incident with the van, the complainant said that he had been working with the brother in law of the industrial manager on a job in a rural location. The van was already damaged. They came out to find that the light was broken. They refitted the fitting and reported the issue to the industrial manager. He said that the dent was there when he took the van out. He said that he used his private insurance to drive the van and was not provided with company insurance. He was not provided with documentary evidence of the repair work carried out to the van and no deduction was made to his pay slip. He outlined that he received none of the €557.57 stated as paid in the pay slip. On the 16^th October 2015, he had called to the offices of the respondent and told to sign a sheet. He was told that he was not getting paid.

Addressing the issue of when the complaint form was lodged, the complainant outlined that he called to the offices of the respondent in May but was refused access. He had sought advice from a support group for his community and they advised that he raise the issue first with the respondent before referring this complaint. He said that he did not read and write well in English.

Respondent’s Submission and Presentation:

The respondent was represented at the adjudication by a company director and the industrial manager. They raise the timing of the complaint, stating that it is made out of time. They outlined that the complainant commenced his employment on the 1^st September 2015 and this came to an end on the 8^th October 2015. It was a period of five weeks and all monies due to the complainant were paid. The respondent outlined that the complainant worked around 30 hours per week and was paid on a fortnightly basis. The complainant was supplied with a van in the course of his duties and this van had been damaged by the complainant while attending a job at a rural location. The damage consisted of a dent on the roof and a broken light, caused by being reversed into a tree or branch. The respondent was not certain of the date of the incident, but submitted a schedule that showed the complainant and the Industrial Manager’s brother in law at this location on the 3^rd September. The respondent relied on its contract of employment and employee handbook to charge the complainant €500 for the repair. The van had been a leased van and had been repaired prior to its return to the leasing company. The respondent outlined that the complainant used his private insurance to drive the vehicle and it did not provide separate insurance cover. It outlined that the complainant also had the use of the van.

The respondent outlined that it decided to terminate the complainant’s employment because of this issue, but also because of other issues, including the complainant refusing to pay a speeding ticket issued when he was driving a company vehicle. The respondent said that the last pay cheque issued to the complainant was paid on the 16^th October 2015. This was in the net amount of €557.57. The respondent had charged the complainant €500 to repair the van and the complainant had handed over €500 to the respondent for this liability. Neither respondent witness was present for this transaction. There was no paper record regarding the cost of the repair.

Findings and Reasoning:

The first issues to address relate to the jurisdiction and to the scope of the claims. Addressing the issues of scope, the complainant referred three complaints to the Workplace Relations Commission: a claim for adjudication pursuant to the Payment of Wages Act and two claims for investigation pursuant to the Organisation of Working Time Act. The complainant said he did not obtain annual leave and was not paid for such as cesser pay. There is no reference to this issue in the complaint form referred to adjudication and it would appear to be an issue referred to investigation by the Workplace Relations Commission. I, therefore, make no findings in relation to the issues of annual leave and cesser pay. The second issue regarding scope relates to the claim of notice pay. During the adjudication, the complainant acknowledged that he did not have the required service for statutory notice pay. There is no contractual entitlement to notice pay. I, therefore, find that this element of the claim cannot succeed.

The respondent raises the issue of time. It states that the complaint is made outside of the six months afforded by the Workplace Relations Act. The complainant states that he sought to raise this entitlement in May 2016 and was able to refer the complaint with the help of a support organisation. He refers to his limited English language skills. I find that the date of contravention is the 16^th October 2015. There was a conflict in evidence between the parties over what happened on that day. What is common to both sets of evidence is that it was clear that the complainant was not going to be paid all of his wages due because of damage to a van. The complaint form was lodged on the 21^st May 2016. The expiry of the six-month limitation period is the 16^th April 2016. The complainant was one month and five days outside the limitation period. This is extendable with reasonable cause.

In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” in the following terms:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay can afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.

The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

“It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time. Thirdly, the Court must be satisfied, as a matter of probability, that the complaint would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the delay ceased to operate before the complaint was presented, that may undermine a claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasonableness on an applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in [O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30], a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

Applying the legal test for reasonable cause to the facts of this case, I find that the complainant is entitled to pursue the claim. I base this on the facts that the complaint was referred as soon as a support body become involved and that it was lodged only one month and five days after the end of the limitation period. I also have regard to the explanation proffered, i.e. lack of English language skills.

I have found that the complainant is entitled to pursue the claim. The issues to determine relate to the conflicts of fact over what occurred on the 16^th October 2015. Did, as contended by the respondent, the complainant hand over €500 in cash to the respondent in payment for the damage caused to the van, having also received the €57.57 provided in the pay slip on this date? Did, as contended by the complainant, the respondent issue the pay slip for €557.57 net, but in actual fact did not pay these monies at all. I resolve this conflict of evidence in the complainant’s favour. I find as fact that the respondent presented him with a letter of the 16^th October stating that it was charging the complainant €500 for the van. It issued the pay slip but did not pay the monies stated as paid. The complainant denied handing over €500 in cash and neither respondent witness was present for this transaction. Given that this was an already fraught relationship, I cannot believe that the complainant would have willingly handed over €500 in cash when he was only getting paid on that day the €557.57 due to him. He would not have been in receipt of the €557.57 at the time he is said to have paid the €500. If such a handover or payment had occurred, there would be some receipt or record of this transaction. Applying the balance of probabilities test, I find as fact that the monies were deducted at source and never paid to the complainant. I, therefore, find as find that the deduction made by the respondent was in the amount of €557.57.

The final question to consider is whether the deduction was authorised. The respondent refers to page 14 of the employee handbook and highlights the following passage “If you have the use of a company vehicle you have a duty to inform the Operations Manager of any damage, no matter how it is caused… Any damage to company vehicles that is the result of your carelessness, negligence or deliberate vandalism may render you liable to pay the full or part of the cost of repair or replacement… In the event of failure to pay, we have the contractual right to deduct such costs from your pay.”

Page 20 of the employee handbook provides an employee with further guidance in relation to the use of company vehicles. The section entitled “damage or injury” refers to what an employee should do in the event of an accident. It refers to the respondent keeping insurance certificates for each vehicle and that a copy of the insurance certificate will be provided to each vehicle. It provides an “accident procedure” as well as “permitted use” and “personal liability for damage to vehicles”. The “permitted use” section states that the vehicle may only be used for the business and that passengers other than employees cannot be carried. The “personal liability for damage to vehicles” provides that where there is negligence or lack of care on the part of the employee, the respondent reserves the right that the employee rectifies the damage at their own expense or paying the excess on any insurance claim.

The question to be determined is whether the deduction imposed by the respondent on the complainant is within the scope of section 5 of the Payment of Wages Act. The relevant parts of section 5 provide:

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—
...
(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
…
(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 the wages of the employee), and
(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—
(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,
(II) in any other case, notice in writing of the existence and effect of the term,
and
(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and
(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and
…
(3) (a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.
(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.
…

Even taking the respondent’s evidence at its height, it cannot be said to have complied the relevant provisions of section 5. It did not provide the complainant with one week’s notice of the deduction; the notice letter and deduction/payment took place on the same day, the 16^th October 2015. No documentary evidence was given as to the cost of the repair, so it cannot be ascertained whether the deduction was greater or not than the repair cost. The respondent says that the complainant paid over €500; it did not provide a receipt as required by statute. Even taking the deduction as €500 (as asserted by the respondent), this is not fair and reasonable as it would account for almost all of the complainant’s last pay cheque (I, of course, have found that the deduction was €557.57).

I would also make the following comments regarding the lawfulness of the deduction. The documentation provided by the respondent clearly envisages that drivers are insured on company insurance when operating the vehicles. There is a reference to the respondent keeping insurance certificates. This, however, was not the case; the complainant availed of his private car insurance. I did not see his insurance policy, but an obvious concern is whether that private insurance covered business driving at all. I note that the permitted use of the vehicle was exclusively for business use. This leads me to question whether the documentation provided by the respondent reflect the true situation. This, in turns, questions whether the documents can be relied upon to justify the deduction. I also note that the complainant received no training or consideration for the responsibility and liability of driving the vehicle. He was paid €9.50 per hour as were other employees who did not shoulder this duty.

For these reasons, I find that the complainant was subject to an unlawful deduction of €557.57 and I award redress pursuant to the Payment of Wages Act in this amount.

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.

Pursuant to the findings made in this report and to the Payment of Wages Act, I decide that the respondent shall pay to the complainant the amount of €557.57, this being redress for the unlawful deduction in wages.

Dated:   7 November 2016