ADJ-00004348

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004348

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

Date of Adjudication Hearing: 22/11/2016

Workplace Relations Commission Adjudication Officer: Emer O'Shea 

Procedure: 

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

Attendance at Hearing: 

Complainant’s Submission and Presentation:

The claimant was employed as a driver with the respondent from the 31^st.August 2015 to the 22^nd.July 2016.He worked a 5-6 day working week and earned between €550 and €660 per week.The claimant approached his supervisor on the 12^th.July and indicated his intention to leave the employment on the 22^nd.July 2016.The Supervisor expressed no reservations about the matter and wished him well in his future endeavours.At this point , the claimant proceeded to give his new employer a start date in 2 weeks time.He submitted that no requirement to work 3 weeks notice was put to him nor was there any indication that his outstanding pay would be in jeopardy.A few days later the claimant was approached by the MD of the company to work but he was unable to oblige as he had already given a start date to his new employer.The claimant received an email from the respondent on the 26^th.July advising him that the company would be withholding one weeks notice in lieu of notice.The claimant submitted that he had 2 young children and a mortgage of €1,200 a month and asserted that he could not afford to loose a weeks pay.He asserted that at no point was it indicated to him that he was at risk of loosing his wages.

Respondent’s Submission and Presentation:

1. The respondent submitted that the claimant resigned his employment on the 12^th.July 2016 stating that he would finish on the 22^nd.July. It was submitted that the claimant was required to work 4 weeks notice as per his contract of employment.It was advanced that following consultation with the MD of the company , the claimant was asked to work 3 weeks notice as a compromise but the claimant did not work this notice period.The respondent withheld one weeks pay – the contract of employment had a deductions policy which it was contended allowed for the deduction to be made.It was submitted that the right of the respondent to make a deduction was specifically communicated in the claimant’s handbook , the claimant was given notice of same on the 26^th.July 2016 and the amount of the deduction was fair and reasonable in light of the notice received from the claimant.The claimant’s supervisor insisted that on receipt of the notice he stated to the claimant he would pass it on to the manager who was in Spain at the time.When he spoke with the manager , the manager advised that 3 weeks notice would be required and he conveyed this to the claimant.He asserted that he would have to talk to the manager about the notice and suggested that he would not have the authority to accept the notice.

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.

Decision: 

I have reviewed the evidence presented at the hearing and noted in particular the following provisions which were contained in both the handbook and the claimant’s contract of employment:

“In the event of termination of your employment in cases other than summary dismissal , you are required to give the company 4 weeks notice.The company undertakes to give you 4 weeks notice.Notice must be given in writing to the Managing Director.

However , both parties are free to waive their right to notice and /or to accept pay in lieu of notice.

Nothing in this agreement shall prevent the giving of a lesser period of notice by either party where it is mutually agreed.

Should the agreed notice period not be adhered to , the company retains the right to deduct the correct notice period from employees final monies”. 

Having reviewed the evidence I find there is a clear conflict between the respective parties account of the exchange that took place between the claimant and his supervisor on the 12^th.July 2016.I found the claimant’s account to be more credible and compelling and I accept his contention that he understood from his supervisor that the notice period was “ mutually agreed” ( as per the provisions of the contract of employment and handbook) and that consequently he was free to advise his new employer of a start date on foot of those exchanges.Consequently , I uphold the complaint that the withholding of a weeks wages was an illegal deduction and I require the respondent to pay the claimant €500 compensation within 42 days of the date of this decision.

Dated:   15 March 2017