ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004408

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

Date of Adjudication Hearing: 08/02/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, 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).

Background

The Complainant commenced employment with the Respondent as a truck driver on 15th February 2012. The parties disagree on the rate of pay. Initially the Complainant submitted two complaints to the WRC, one under the Payment of Wages Act and another under the Terms of Employment (Information) Act. These complaints were received by the WRC on 11th August 2016. Subsequently the Complainant submitted another two complaints to the WRC, one under the Unfair Dismissals Act and another under the Minimum Notice Terms of Employment Act. These complaints were received by the WRC on 1st December 2016. The fact of dismissal is in dispute.

CA-00006424-001 Payment of Wages

Complainant's Submission and Presentation

The Complainant submitted that over the period of his employment he had had numerous difficulties concerning his rate of pay and in relation to getting paid for the actual hours worked. It was the Complainant's case that a verbal agreement had been reached between him and his employer that he would be paid a net hourly rate of €11.89 plus a subsistence rate of €168.05 per week. Although he completed weekly time sheets there was often differences between pay-slips and actual paid wages and the hours worked. The Complainant also submitted that he regularly worked through his lunch period contrary to regulations but with the backing of his employer. Sometimes he was not paid for working through his lunch. Between unpaid break-times and other short-falls between hours worked and hours paid the Complainant believes that he is owed a sum in excess of €15,000.

In direct evidence the Complainant said that he did not realise the alleged underpayments were taking place for a long time and it was only when he went to a Mortgage advisor who told him he should be getting pay slips did he realise there was a discrepancy between hours worked and hours paid. He said he had not got pay slips for two or two and a half years.   The Complainant showed a time sheet showing he had worked 51.75 hours in a week but the corresponding pay slip only showed he had worked 36 hours.

In cross examination the Complainant stated that he had raised verbal grievances about his pay but had never put a grievance in writing. He re-iterated that he had been told by his employer that he would be paid for breaks but he was not. He said pay had fluctuated and that he had not asked for pay slips as they were not coming. When he did ask they were given to him.

Respondent’s Submission and Presentation:

The Respondent's payroll supervisor gave direct evidence and explained the method used to calculate the net pay vis-à-vis hours worked, subsistence, tax, etc. She stated that the subsistence payment is paid to all employees and is a legitimate payment.

The Respondent's owner gave direct evidence. He disputed the evidence regarding the alleged agreement to pay €11.89 per hour. He also stated that the Complainant had got pay slips from day one of his employment showing an hourly rate of €13.50. He also stated that the Complainant was allowed take breaks.

Findings and Reasonings

There is a distinct conflict of evidence regarding the pay rate of the Complainant and how much he actually got paid. Although all may not have been as clear and precise in the way he was paid as should be, on the evidence adduced, I am not convinced that the Complainant was underpaid. What is telling in regard to his pay is that he never put his grievance in writing. If he was being under paid on a continuous basis and his verbal interventions were ineffective then surely a written complaint, email or letter, would have been forthcoming.

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.

The complaint is not upheld.

CA-00006424-002 Terms of Employment (Information) Act

Complainant's Submission and Presentation

The Complainant submitted that he had never been furnished with a contract of employment or a written statement of his terms and conditions of employment.

Respondent's Submission and Presentation

The Respondent agreed that the Complainant had not been issued with a contract of employment, no terms of employment were set down nor was there an Employee Handbook.

Findings

The Complainant was not supplied with a contract of employment.

Section 3 (1) of this Act states, "an employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment."

Section 7 of the Act, states:

7. section 41 of the Workplace Relations Act 2015 in respect of a contravention of section 3 , 4 , 5 or 6 , if the employer concerned has —

( a ) complied with a direction under section 6A given in relation to the contravention F11 [ before, on or after the commencement of section 8 of the Workplace Relations Act 2015 ] , or

( b ) been given a direction under that section in relation to the contravention and the period specified in the direction within which he or she is required to comply with the direction has not yet expired.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3 , 4 , 5 or 6 shall do one or more of the following, namely —

( a ) declare that the complaint was or, as the case may be, was not well founded,

( b ) either —

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3 , 4 , 5 or 6 , or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

( c ) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

( d ) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks ’ remuneration in respect of the employee ’ s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977 . ]

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.

I have decided that the respondent has breached Section 3 of this Act.

I order the Respondent to pay the Complainant €500 compensation within six weeks of the date below.

CA-00008527-001 Unfair Dismissal

Complainant's Submission and Presentation

The fact of dismissal is in dispute. The Complainant submitted that it is his belief that his employment was effectively terminated on 30th June 2016, as this was the date advised by Revenue as being the date of issue of his P45. However, it was submitted that the Complainant was only advised of his termination over the weekend of 16th/17th September 2016 when he was informed by the Respondent that there was no further work for him. The Complainant also submitted that he had written to the Respondent on 9th November requesting a written explanation for his dismissal and his P45 but he did not receive a response.

The background to the dismissal as submitted by the Complainant was that he had been unwell between mid-June 2016 up to and including the end of August 2016. There was communication between the Respondent and the Complainant during this period. The Respondent requested the Complainant to attend a mediation process but as the Complainant believed the mediator would not be impartial he declined the request. He was issued with a written warning from his employer for not attending the meeting with the mediator.

The Complainant was requested to attend a meeting with the Respondent on 17th September 2016, where, he submits, that he was told that, "there was no work for me" and "I have a new driver".

In direct evidence the Complainant stated that he had been out sick from 17th June 2016 but was fit to return to work in August. He denied absolutely that he had resigned. The Complainant was invited to a meeting with the Respondent which took place on 17th September 2016. The Complainant stated that when he met the Respondent he was asked about the complaints he had made to the WRC. He stated that the Respondent said to him, "I've a lad driving" and "there is no work for you". The Complainant said he asked the Respondent to put it in writing and give him his P45.

The Complainant continued by stating that he had written to the Respondent on 9th November by registered post (copy of the letter provided) but he got no response.   When asked whether the Respondent might have thought that he was resigning the Complainant said no, he was preparing to return to work. There was no notice of dismissal given.

Regarding the offer of mediation, the Complainant had turned it down, and he had written to the Respondent to confirm that.

In cross examination the Complainant stated that letters from the Respondent had caused him stress and the reason he had turned down mediation was of where it was to be held, not because of the mediator. He had talked with the mediator on the phone about the situation.

The Complainant was asked whether there had been any discussion on breaking his contract, of going separate ways; in response he said there had not, only that he was told to "f**** off and leave".

When asked if there had been mention of an ex-gratia payment the Complainant said that he had mentioned it on the phone to the mediator. In answer to a subsequent question the Complainant said that the matter of an ex-gratia payment had been raised by the Respondent, but the Complainant did not want to be insulted- it was not enough. He also stated that he did not walk off on 17th September.   He also stated that the Respondent told him he would not give him his P45.

The Complainant finished his evidence by giving a summary of his attempts to find work since his employment ended.

Respondent's Submission and Presentation

The Respondent gave direct evidence. He agreed that there had been difficulties in the relationship with the Complainant. In June 2016 he had made several attempts to resolve the problems but the Complainant had failed to turn up two two meeting. He had enlisted a mediator to help get resolution but the Complainant refused to participate.

In September the Respondent had invited the Complainant to a meeting. He asked the Complainant whether he was fit enough to return to work but the Complainant said he was not sure. He did suggest that he and the Complainant should go separate ways. He asked the Complainant what would it take for him to walk out happy; according to the Respondent, the Complainant said he would think about it. However, the Complainant did not turn up for work on Monday 19th September and there were no discussions thereafter.

In cross examination the Respondent agreed that he knew the Complainant was not happy with the location chosen for the proposed mediation to take place. He also agreed that he and the Complainant had a fractious relationship, he said it was "unworkable".  

The Respondent stated that a copy of the WRC Complaint Form was on the table in the office where the meeting took place on 17th September. He also stated that he did not recall any conversation with a person from the WRC at which he had turned down the possibility of mediation.

When asked whether he was annoyed about the referral to the WRC, the Respondent stated that he wanted to meet "man to man and sort out the problems".

Regarding a return to work the Respondent said that the Complainant said the problems (at work) were making him sick and that he went off to think about it.

The Respondent agreed that he had used the word "no work" and "another man", because the Complainant had been out so long he had to take on another man. The Respondent stated that he did not sack the Complainant, he had said they needed to sort things out first.

The payroll supervisor gave direct evidence. She stated that she did not generate a P45 for the Complainant and that it was news to her about a P45 being issued in June 2016.

Findings and Reasonings

I have considered this matter carefully. The first issue to be decided is whether the complainant was dismissed. The question of dismissal, to a large part, centres on the meeting which took place on 17th September. There is not a substantial variation between the two protagonists as to the words used at that meeting, however there is a major difference in the interpretation of what these words meant. For the complainant the words meant his job had been given to someone else and he had been dismissed. For the respondent the same words were just an explanation of what he had had to do to cover for the complainant's absence.

Despite the fact that there is no corroborative evidence to the effect that the respondent's words were such as to explicitly terminate the complainant's employment, a reasonable listener might, and in my belief would, interpret them as an indication that the complainant was no longer required as an employee. That there were discussions on an ex-gratia payment in the run up to the meeting of 17^th September also indicates that a termination was in the offing. However, the parties failed to agree on the terms of any such payment and the matter was left hanging.

I must also consider whether it was reasonable in the circumstances of the meeting of 17th September and having regard to the nature of the complainant's employment relationship with the respondent that the complainant failed to report to work on 19th September to establish his employment status. Having considered the matter carefully I do not think it unreasonable that the complainant did not attend on 19th September; the relationship between the respondent and the complainant had been fractious for a long-time, the complainant's absence had exacerbated matters and the filling of complaints to the WRC seems to have increased the level of animosity between the employer and the employee, all of which was evident at the meeting of 17th September. That meeting took place in the cold light of day and although the terms of dismissal were not absolutely explicit, I believe in the circumstances the complainant was entitled to believe he had been dismissed, no further confirmation was needed. In this situation the complainant did not have any procedures to refer to; he had not been issued with a contract of employment or particulars of his terms and conditions of employment, or an employee handbook.

Although the onus is on the employee to ascertain without doubt that a dismissal has taken place, there is also a responsibility on the employer to ensure that there has been no misunderstanding.   In this instance the employer did nothing following the meeting to find out what the situation was with the complainant with regard to their employment relationship. Nor did the respondent deny the allegation that a dismissal had taken place as stated in the complainant's letter of 9th November 2016.

I am satisfied that a dismissal did take place.

Regarding the matter of mediation, it is clear that the respondent made an attempt to resolve the differences between the parties. However, they were unsuccessful and took place in mid-June some three months before the September meeting. Issuing an employee with a warning for failure to agree to participate in a mediation process seems particularly draconian as a core principle of mediation is that it is a voluntary process. Although the respondent says he wanted to sort things out it would seem to me that was not going to be possible following the meeting of 17th September.

The Complainant has alleged that a P45 was created in June, indicating that the termination was a fait accompli at that time. The Respondent denied any knowledge of such a P45. In the absence of evidence to support the allegation I find the date of termination to be 17^th September 2017.

Having considered all the evidence adduced I am satisfied that the complainant was dismissed. I can see no reason to justify a dismissal. I find that he was summarily dismissed without the application of any fair procedure whatsoever. I find the dismissal was unfair

Decision

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The complaint is upheld. Section 7 of the Act states:

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances:

( a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

( b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

( c ) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

The Complainant has made attempts to find work but as at the date of the hearing had been unsuccessful. However, my belief is that these attempts have not been extensive and I do believe the Complainant should be able find work in the near future. In the circumstances I order the Respondent to pay the Complainant compensation of €10,260, this to be paid within six weeks of the date below.

CA-00008658-001 Minimum Notice & Terms of Employment

Respondent's Submission and Presentation

The Respondent stated that this claim follows the Unfair Dismissals claim.

Complainant's Submission and Presentation

It is the Complainant's submission that the Complainant was unfairly dismissed and was not paid notice as was his entitlement.

Findings and Reasonings

The Complainant was unfairly dismissed and was not paid his notice entitlements.

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.

Section 12 of the Minimum Notice and Terms of Employment Act states:

2. section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

The complaint is upheld. I order the Respondent to pay the Complainant two weeks' pay in lieu of notice, i.e. a sum of €1,026 (€13.50 x 38 x 2).

Dated:   22/06/2017