ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004490

Complaints for Resolution:  

Date of Adjudication Hearing: 06/12/2016

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, and section 7 of the Terms of Employment (Information) Act, 1994, and section 27 of the Organisation of Working Time Act 1997, and section 11 of the Minimum Notice & Terms of Employment Act 1973, and section 13 of the Industrial Relations Act 1969, 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.

Attendance at Hearing: 

Complainant’s Submission and Presentation:

The complainant submitted five complaints for adjudication.

Unfair Dismissal -The complainant contends he was unfairly dismissed after he raised a number of safety related issues with the respondent. He contends that the Transport Manager harassed him on the phone after he told her he had injured his foot getting down from his truck. He contends that she told him she had evidence from hidden cameras that he did not hurt his foot and that he was planning to make a fraudulent claim. He denied this, and when he raised his concerns about safety hazards, she dismissed him.
Terms of Employment (Information) Act - He further stated that he did not receive any written contract containing terms and conditions of employment.
Organisation of Working Time Act - He was not given annual leave in the normal manner, but it was added in to his wages weekly, when he would be told not to come in to work on certain days.
Minimum Notice - He did not receive any notice that his employment was ending or payment in lieu of notice.
Industrial Relations Act - His employer did not use the proper disciplinary procedures when letting him go from work.

Respondent’s Submission and Presentation:

The respondent argues that the complainant was not unfairly dismissed.   The sequence of events which led to his dismissal were outlined, summarised as follows:

The complainant was employed as a Night Driver. He was required to drive to Dublin to collect goods and collect a load on the return journey.   Most nights the company was required to send up 2 lorries and some nights would only require one lorry. The complainant was always given the option if he did not work on a particular night, he would get paid for 4 days or if he wanted to convert it to holidays, he would get paid for the full week.

In June 2016, one of the day drivers complained to the Transport Manager that while he was keeping his lorry clean, the complainant was driving it at night and throwing rubbish on the floor of the cab. The complainant was spoken to and agreed to keep the lorry clean. However he continued to throw rubbish on the floor and when approached by the other driver, told him to f… off.                     The other driver went to the Transport Manager and told her what the complainant had said to him.   Following this, the Transport Manager wrote to all night drivers informing them of their duties at night and to please keep their lorries clean as it was unacceptable that day drivers kept their lorries clean and then came in to dirty lorries next morning. Following this the complainant became very argumentative and did not want to drive the lorry that was assigned to him.   On 11^th July 2016, the Transport Manager received a report of an incident which occurred at one of the respondent’s customer’s premises, involving the complainant shouting at one of the other drivers and calling him a scumbag and numerous other names and accusing him of taking another man’s job.   The complainant was subsequently given a verbal warning on 18^th July 2016 but the complainant was again argumentative stating that he had been right.       The Transport Manager advised the complainant to keep his temper in check and that this was an official verbal warning and he would get a copy of it on Thursday with his wages.   The next day the Transport Manager received a call from the complainant saying he had fallen off the side of the truck and hurt his ankle.   The respondent checked cctv footage of the area and found that the complainant had parked his truck outside the yard, had jumped down from the cab and walked with no obvious sign of injury. The respondent believed the complainant was manufacturing a bogus work place injury, had committed gross misconduct and therefore the respondent believed it was quite within its right to dismiss the complainant.   He was given a cheque for €537 at the end of his employment, representing 7 days pay which included any balance of annual leave accrued.

The respondent refuted that it did not give the complainant his full complement of annual leave. At the end of his employment, he had worked 2,300 hours, had been given 8% of these hours and the balance had been paid to him in his final pay.

The respondent agreed that no written contract of employment containing terms and conditions had been given to the complainant.

Decision:

CA-00006097-001 – Unfair Dismissals Act 1997

In this case, the complainant was dismissed without notice for alleged gross misconduct.   In considering whether this was an unfair dismissal I have taken into account the circumstances surrounding the dismissal, were there substantial grounds justifying the dismissal, the fact that the employee was dismissed for gross misconduct, and the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.      

Section 6 (1) of the Act provides:

“6 – (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

The respondent outlined the circumstances leading up to the complainant’s dismissal, including an altercation with a fellow employee, and then a cctv account of an alleged injury incurred which the respondent believed would lead to a claim against the company. However, while there was undoubtedly arguments between the complainant and the Transport Manager, I note that there was no stated intention from the complainant to lodge any such claim.

Section 6 (4) of the Act provides:

“(4) Without prejudice to the generality of subsection (1)of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) The capability, competence or qualifications of the employee for performing the work of the kind which he was employed by the employer to do,

(b) The conduct of the employee…”

The respondent relies on section 6 (4) (b) to prove that the dismissal of the complainant in this case was not an unfair dismissal as it resulted from the conduct of the employee.

The approach to cases of dismissals for conduct was set out in Hennessy v Read & Write Shop Ltd UD 192/1978, where, in deciding whether or not the dismissal of the claimant was unfair, a test of reasonableness is applied to

1. The nature and extent of the enquiry carried out by the employer prior to the decision to dismiss the employee, and

2. The conclusion arrived at by the employer that, on the basis of the information resulting from such enquiry, the employee should be dismissed.

This requires that the employee should be made aware of the allegations and complaints that formed the basis for dismissal, and whether the employee had adequate opportunity to deny the allegations or explain the circumstances before the decision to dismiss was taken. In some instances, however, instant dismissal can be deemed fair due to conduct, usually in extreme circumstances.

Section 6 (7) of the Act provides:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so –

(a) To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) To the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993)of section 7 (2) of this Act”.

Critically, 6 (7) (b) above provides that regard must be had to the extent of compliance or failure on the part of the employer to comply with fair and proper procedures before dismissal.

In this instant case, I find that no such procedures were invoked by the employer and for that reason only I find the complainant’s dismissal to be an unfair dismissal.

In considering redress, I find that compensation is the appropriate remedy.   The employment relationship having been broken irretrievably, re-instatement or re-engagement are not appropriate.

Section 7 (2) (b) provides that in determining the amount of compensation regard shall be had to the extent, if any, to which financial loss was attributable to an act, omission or conduct by the employee. In this case, I find that the complainant contributed to the situation in which his employment came to an end, and I determine the amount of compensation to be €2,000.

CA-00006097-002 – Terms of Employment (Information) Act 1994

Section 3 of the Act provides that an employer furnish an employee with written terms of conditions of employment within two months of commencement of employment.   It is common case here that no such written terms were provided to the complainant.   I find his complaint to be well founded and I require the respondent to pay to the complainant the sum of €700 compensation.

CA-00006097-003 – Organisation of Working Time Act 1997

There was conflict of evidence here between the parties. The respondent maintained that the complainant received 8% of hours worked for annual leave throughout his employment.                The complainant raised his objections to the manner in which annual leave was paid, i.e. included in wages when the requirement to work certain nights was not there.   He also submitted that he was not given the annual leave to which he was entitled.

Section 19 of the Act provides :

“19.- (1) Subject to the First Schedule (which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to –

(a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

(b) One-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

(c) 8 per cent of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks)…

I note the respondent’s evidence that 8% of hours worked was the formula used for annual leave for the complainant, and I find this aspect of the complainant’s complaint to be not well founded. 

Section 19 (3) of the Act provides:

“(3) The annual leave of an employee who works 8 or more months in a leave year shall, subject to the provisions of any Employment Regulation Order, Registered Employment Agreement, Collective Agreement or any agreement between the employee and his or her employer, include an unbroken period of 2 weeks”. 

Section 20 of the Act provides :

“(1) The times at which annual leave is granted to an employee shall be determined by his or her employer having regard to work requirements and subject to –

(a) The employer taking into account –

(I) The need for the employee to reconcile work and any family responsibilities

(ii) The opportunities for rest and recreation available to the employee..”

It has been long been established that annual leave is for rest and recreation purposes and that the only circumstances in which payment in lieu can be made is on cessation of employment.

In accordance with Section 27 (3) of the Act I find that the respondent in this case has contravened relevant provisions in Sections 19 and 20 of the Act and I require the respondent to comply with the relevant provisions and pay to the complainant the sum of €500 compensation.

CA-00006097-004 – Minimum Notice and Terms of Employment Act 1973

The complainant in this case, having fifteen months service is entitled to one week’s statutory minimum notice and I find that the respondent should pay to the complainant the sum of one week’s pay.

CA-00006097-005 – Industrial Relations Act 1969

The issue referred under this reference number is addressed in CA-00006097-001 above, and I make no further findings as they are comprehensively addressed therein.

Dated:   11 January 2017