ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000929

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

Date of Adjudication Hearing: 23/05/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Acts, 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). 

Complainant’s Submission and Presentation:

CA-00001353-001

The complainant submits that he was employed by the respondent as a coach driver from 1^st of October 2005 until 14^th of July 2015. He was paid €500 net per week. He submitted his declaration of penalty points on the 23^rd of January 2015, the previous such declaration was made on the 23^rd of November 2013. No concern was expressed by the respondent until the 26^th of May 2015 at which point he was informed that the insurer had been changed and that it was not prepared to provide insurance cover to him as he had in excess of 6 penalty points. The complainant accrued the penalty points exclusively in the service of the respondent. He was offered an alternative role as a general operative on terms substantially less favourable and ultimately unacceptable to him.

CA-00001651-001

I was dismissed without notice on 14 July 2015. My employer has refused to pay in lieu of notice or to pay for my 6 days' of outstanding leave.

The complainant submits that his final payslip shows four weeks pay in lieu of notice comprised of €1736.41(basic) + subsistence of €638.59. Additionally a sum of €639.73 was paid in respect of bank holiday and 6 days holidays together with a payment of €959.05 in respect of an overpayment of PAYE and USC. The respondent illegally deducted (no contractual or statutory provision) €2,193.36 from wages and €773.03 from subsistence for alleged overpayment amounting to a breach of s. 5 of the Act.

CA-00001651-002

The complainant submits that he was not paid his entitlement to statutory minimum notice (see above).

Respondent’s Submission and Presentation:

CA-00001353-001

The respondent submits that the herein dismissal was fair and reasonable in all the circumstances. It relies upon the provision set out at s. 6 (4) (d) of the Act – the employee being unable to work or continue to work in the position which he held without contravention (by him or his employer) of a duty or restriction imposed by or under any statute or instrument made under statute - on the one hand and s.19 of the contract of employment - Your employment is contingent on the Company being able to maintain a suitable policy of insurance entitling you to drive the vehicle. In the event that the Company is unable to obtain insurance for you, or if your insurance premium was prohibitive, the Company would be able to terminate this contract on notice - on the other.

The complainant was suspended with pay upon receipt of notification that the insurer would not provide cover for him under the respondent’s policy. Alternative employment (general operative role) was offered to the complainant on the 6^th of July on the understanding that he would return to his original role when insurance cover could be obtained. He declined the offer on the following day. He was dismissed by letter of 14^th of July 2015 and his subsequent appeal was unsuccessful. In essence the respondent was unable to secure the necessary insurance to enable the lawful continuation of the employment in circumstances where every effort was made to do so. Furthermore the contract anticipates and provides for the same.

CA-00001651-001

The respondent submits that all payments due and owing to the complainant were made. He was overpaid in that he was ill during his period of paid suspension and therefore not entitled to payment. Attempts were made to deal with the matter in correspondence in July and September to no avail. The respondent was left with no alternative but to deduct the overpayment from the complainant’s statutory notice and outstanding holiday pay.

CA-00001651-002

The respondent submits that entitlement to statutory notice was paid (see above).

Decision:

CA-00001353-001

Acknowledging the very difficult position the parties found themselves in here I am mindful of the fact that on the face of it the substantive case has been made. It is a matter of fact that the complainant could not continue in his position as reflected in the provisions in s. 6 (4) (d) of the Act and in the contract of employment itself. However this situation arose after the fact and can’t be used to justify the dismissal in the absence of clear and unambiguous contractual provision or parameter as it relates to penalty points in the first instance.

The Road Traffic Act, 2002 introduced the penalty points system and the absence of any internal marking/flagging system or remedial/disciplinary process specifically relating to accrual of penalty points by employees amounts to a glaring contractual omission, which must prove to be procedurally deficient and hence flawed and unfair in the circumstances described.

Accordingly I find that this was an unfair dismissal and that the complaint is well founded. There was however a level of personal contribution on the complainant’s part in my opinion and the appropriate remedy in all the circumstances is compensation in the amount of €16,000 (say sixteen thousand euro).

CA-00001651-001

In the absence of contractual or statutory provision or a signed agreement for the deduction I find that the complaint is well founded. I note that the respondent made request that the complainant would engage in the matter without success. I further note that he did not demur in respect of the assertion that an overpayment was made to him. In these circumstances I am not prepared to make an award of compensation.

CA-00001651-002

I find that the complaint is not well founded.

Dated:   20/10/2016