EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1068/2014
PW123/2014
TE83/2014
WT163/2014
APPEAL(S) OF:
Gabor Kenyeres -appellant
against the recommendation of the Rights Commissioner in the case of:
KCT Freight Limited (In Liquidation) -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
PAYMENT OF WAGES ACT 1991
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2014
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr T. O'Grady
Mr J. Flannery
heard this appeal at Carlow on 11th October 2016
Representation:
Appellant: Ms Andrea Cleere, SIPTU, Liberty Hall, Dublin 1
Respondent: No appearance or representation on behalf of the liquidator.
Background:
This appeal came before the Tribunal by way of an employee (the appellant) appealing against the Decision of a Rights Commissioner (references: r-139486-ud-13/JT, r-138283-pw-13/JT,r-138284,138285-wt-13/JT and r-133131-te-13/JT). The respondent on the Rights Commissioner Decision differed from that stated on the EAT appeal papers lodged by the employee.
The Tribunal was satisfied that the liquidator of the respondent named on these proceedings was on notice of the hearing. Neither the liquidator nor a representative on his behalf attended the hearing.
This case was subsequently put in for mention before the Tribunal on 5th December 2016. The appellant’s representative had received an initialled amendment from the Rights Commissioner to the respondent named in this Determination.
Summary of appellant’s case:
A Hungarian interpreter was present for the hearing.
It was the appellant’s evidence that he commenced his employment with the respondent in October 2006, earning €120 net per day. In February 2010 he received a letter from the company informing him that his daily rate was going to reduce by 10%. However, this change had already occurred in his pay a week prior to receiving the letter.
The appellant stated that he continued to work the same hours and increasingly he had to drive to the UK for work. He stated that there were many issues with the payments he received. The appellant stated that at times he would receive no payment for half days and would contact the Transport Manager who would refer him to LC of the company who in turn would refer him to KC of the company. The appellant and a number of drivers sought a meeting with KC on the 25th April 2013 regarding ongoing issues with wages but this meeting did not take place.
The appellant’s evidence was that he was instructed via a message received on the truck to alter the use of the switch in the truck with the effect that loading time was to be entered as rest time. The appellant stated that the instruction he was given in this regard could had led to him receiving a serious fine in the UK for improper use of the switch. As the driver he would have been liable to pay the fine.
The appellant stated that there were occasions when he was expected to drive an overweight truck. He raised the matter on those occasions with the Transport Manager who told him “it should be alright”.
The appellant gave evidence that in 2011/2012 the Transport Manager wanted to provide him with a magnet to stop the tachograph but the appellant did not accept it. It was the appellant’s evidence that a number of drivers were caught by the authorities previously for this same issue and were imprisoned for a number of days as a result.
The appellant gave evidence that he often worked 7 days in a row after which he would not work for a 24 hour period. He attended his doctor in September 2013 and was diagnosed as suffering with stress. The medical certificate for this illness covered the period from 30th September 2013 to 14th October 2013. The appellant subsequently noticed that he had not received the usual Family Income Supplement (FIS). When he contacted the Department of Social Protection about this matter he was shocked to be informed that the company had said he was no longer working. He had not been invited to any disciplinary process nor informed of his dismissal by the company. The appellant lodged an unfair dismissal claim as he believed he had been dismissed given the information he had received from the FIS section.
The appellant and his union representative wrote to the company but neither received a response to their correspondence. The appellant subsequently received a letter from the company stating that he had failed to engage although it had previously been accepted by the company that he had made contact.
The appellant refuted that he had resigned from his employment. He gave evidence of his financial loss. He remained unfit for work until March 2014. He began new employment in April 2014 in which he receives a similar salary to that which he earned with the respondent. His period of financial loss is six weeks.
The appellant also pursued claims in relation to his terms of employment, rate of pay for annual leave and public holidays and a number of documents were opened to the Tribunal in this regard.
Determination:
The matter came before the Tribunal on an appeal by the employee.
The Tribunal reverses the Decision of the Rights Commissioner where it relates to the claims under the Unfair Dismissals Acts 1977 to 2007 and for wage deductions and holiday pay.
The Tribunal conducted a full “de novo” hearing. The respondent was not represented. Accordingly, it fell to the Tribunal to decide matters on the uncontested evidence of the appellant.
The appellant gave evidence around a number of matters including questionable work practices. The appellant went out on work related stress and found his Family Income Supplement stopped when the Department of Social Protection recorded his employment as terminated. It was his uncontested evidence that this information could only have been provided to the department by the respondent.
On balance, the Tribunal upholds the appellant’s case that he was dismissed. When dismissed he was on sick leave and it was clear to the Tribunal that he was available for work for a 6-week period only from the date of his dismissal to him securing new employment on similar terms. Based on an average weekly net pay of €500, the Tribunal awards the appellant €3,000 in respect of his Unfair Dismissal. Thus the Tribunal upsets the Rights Commissioner Decision in this regard.
On the claim under the Payment of Wages Acts, the Rights Commissioner professed himself satisfied that the appellant had received his entitlements in that the issue was governed by a decision which the Commissioner believed was binding on him and had settled the distinction between “reductions and deductions” McKenzie & Anor-v- Min for Finance (2010) IEHC461
This Tribunal does not concur. The comments in McKenzie are obiter and, accordingly, not binding. Further, the comments related to specific allowances covering various expenses incurred by members of the Defence Forces.
The definition of Wages in the Payment of wages Act 1991 defines “Wages” as excluding reimbursements to an employee “in respect of expenses incurred by the employee in carrying out his employment.
It is clear to the Tribunal that the appellant had a legitimate expectation to a net wage which the company paid by way of a combination of payment subjected to PAYE/PRSI and a payment classified as subsistence by the company.
The Tribunal is of the opinion that the appellant’s net wage was made up by way of a payment classified as a Subsistence payment. There appears to have been a benefit to the Company in dealing with the matter in this way. However, the subsistence payment in this instance was not the type of expenses payment envisaged by the Payment of Wages Act 1991 as being excluded from the definition of Wages. The Tribunal is satisfied that the subsistence payment was an element of the appellant’s Wage as defined in the Act.
The appellant had an average weekly reduction in his weekly net pay of in or about €35. The appellant lodged his claim on the 1st October 2013 and is entitled to recover for the six month period prior to that date and is awarded a sum of €910.
The fact that Revenue allow this “subsistence” payment for Tax Purposes is of no concern to the Tribunal
When the respondent introduced an adjusted split between the payment subjected to PAYE/PRSI and subsistence payment so as to meet minimum wage requirements s and to bring itself into line with NERA requirements this did not in the Tribunal’s opinion, entitle the respondent to reduce the appellant’s net pay.
Similarly, as the payment classified as subsistence by the respondent was wages in this instance as defined in the Payment of Wages Act 1991 the appellant was underpaid holiday pay and public holiday pay. The Tribunal awards the appellant holiday pay of €384 comprising payment for annual leave and public holidays based on a net loss of €48 (paid previously at a gross daily rate of €60.00 only). Thus the Tribunal upsets the Rights Commissioner Decision in this regard.
The Tribunal is satisfied with the finding of the Rights Commissioner that the claim under the Terms of Employment (Information Acts 1994 to 2001) is not well founded. The appeal of the Rights Commissioner Decision under these Acts is therefore upheld.
The Tribunal’s jurisdiction under the Organisation of Working Time Act is in relation to annual leave and public holidays. These claims have been addressed under the Payment of Wages Act by the Tribunal. Accordingly, the Tribunal dismisses claims of any other nature under the Organisation of Working Time Act due to lack of jurisdiction.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)