ADJUDICATION OFFICER DECISIONS

Adjudication Reference: ADJ-00005973

Parties:

Complaints:

Date of Adjudication Hearing: 9th March 2017

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Procedure:

On the 18^th November 2016, the complainant referred complaints to the Workplace Relations Commission pursuant to the Terms of Employment (Information) Act, the Payment of Wages Act, the Minimum Notice and Terms of Employment Act and the Unfair Dismissals Act. The complaints were scheduled for adjudication on the 9^th March 2017. The complainant attended the adjudication and was represented by Business & Legal Solicitors. The respondent company was represented by Breffni O’Neill and a company director attended as a witness.

In accordance with section 41 of the Workplace Relations Act, 2015 and section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaints to me by the Director General of the Workplace Relations Commission, 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.

Background:

The complainant commenced working for the respondent as a General Operative on the 1^st November 2013. The events of August 2016 are in dispute, in particular whether they amounted to the dismissal of the complainant from the respondent’s employment. There is also dispute over the complainant’s remuneration: he states he earned €800 gross, while the respondent states that his gross pay was €584.44 per week.

Summary of Complainant’s Case:

The complainant stated that his net weekly pay was €550 net, as well as a weekly fuel allowance of €30. The complainant outlined that he was not provided with a contract of employment or a statement of the terms of his employment when he started working for the respondent in November 2013. He had incurred loss by not knowing what he could do in a lay-off situation.

He states that he was owed €400 for overtime work undertaken over one weekend in June 2016 and that he was only paid €160 of this amount. This overtime had been agreed with the company director in attendance at the adjudication. The complainant outlined that when he was not paid the full amount of overtime he was due, he used the respondent company credit card to pay off his phone bill of €200. The complainant asserted that an unlawful deduction on the 8^th August 2016 when €200 was deducted from his pay. He stated that he had not written to the respondent regarding this amount. In total, deductions were made of €440, consisting of €200 deducted by the respondent from his pay and €240 shortfall in overtime.

In respect of the claim of unfair dismissal, the complainant outlined that the respondent had been busy with sub-contracting work. The numbers of employees had increased to 15 or 20. Part of the complainant’s role was to purchase supplies, using a company credit card. He outlined that an incident occurred on the 2^nd August 2016 when the office manager addressed him in an aggressive fashion for buying supplies without going through a foreman. The complainant submitted that the date of his dismissal was the 5^th August 2016 as the rest of the workforce returned to work at this time. On the 22^nd September 2016, the complainant spoke with a named company director to find out what was happening. He received the notice of lay-off on the following day, the 23^rd September 2016. The respondent had not offered an alternative to the lay-off and the lay-off was a sham. He stated that he had a managerial function and wrote to the respondent on the 4^th October 2016. He received the respondent’s reply of the 24^th October 2016, but no pay slips were attached to this correspondence. He received a P45 and the pay slips in November 2016. Since the end of this employment, the complainant said that he had been on jobseeker’s benefit and had participated in an entreprise allowance scheme. He was due to commence a 6 – 8 week course at the time of the adjudication. The objective was to allow him be self-employed.

In respect of any lay-off, the complainant submitted that he had not been notified of a lay-off situation as required by section 11(1) of the Redundancy Payments Acts. He had no contract of employment that permitted a lay-off, so he was entitled to full pay. The respondent had failed to comply with section 11(2) of the Redundancy Payments Act and as a result, the complainant could not have sought a redundancy lump sum payment. The complainant said that he had reported to a named person, who was the right-hand man of the company director. He accepted that this person was a friend and this person never mentioned that the complainant was on lay-off.

In closing comments, the complainant asserted that two unlawful deductions had been made to his pay. He outlined that he was due six weeks’ pay up to the date of his resignation. A contract had not been provided to the complainant at the outset of his employment. It was submitted that the termination of the complainant’s employment had been unlawful with regard to section 6(7) of the Unfair Dismissals Act. The complainant was entitled to consider himself to have been dismissed. The burden was on the respondent to produce records regarding the overtime worked by the complainant. The complainant had obtained the certificate in September 2016 for social welfare purposes and he had no knowledge of his lay-off prior to that. He confirmed that he received some pay slips following his request.

Summary of Respondent’s Case:

The respondent outlined that the complainant had been placed on lay-off in August 2016 as per the custom and practice in the construction industry. The respondent spoke to the complainant about this on a number of occasions and the complainant also met with a named company director on the 22^nd September 2016. The respondent emailed the complainant regarding the lay-off and he was happy with it. The complainant had not been dismissed. The respondent referred to the text message from the complainant regarding sending the notification to his email and backdating this to the 19^th August 2016.

In evidence, the company director confirmed that there had been no lay-offs in August 2015. In respect of August 2016, the company director said that he had let a lot of guys go as a significant contract had come to an end. He was able to offer work to two or three people for the rest of the month after he received a follow-up from the major contractor in the role that had largely finished. He stated that two or three months later, he obtained a night shift and three others came back at this time. There had been no plumbing work available as the new client wanted to do plumbing work itself. The respondent outlined that the next plumbing work arose in November 2016 and it had to sub-contract to provide for this. The respondent submitted that the date the complainant’s employment came to an end was the 24^th October 2016. It submitted that on the 22^nd September 2016, the complainant told a named company director that he did not wish to return to work for the respondent.

The respondent submitted that the complainant was provided with a contract of employment, which he kept. In respect of the monies deducted, the respondent said that the complainant had asked for the monies to be deducted from pay, which the respondent did. It stated that the use of the company credit card had occurred when the respondent was on edge and availing of an overdraft. The company director did not recall any overtime agreed in June 2016 and whether any monies were owed to the complainant.

In closing comments, it was submitted that the complainant had not been dismissed by the respondent. He had been placed on lay-off and he was well aware of this. The respondent referred to the text messages of the 22^nd September 2016. There could be no finding of constructive dismissal as the complainant had not lodged a grievance. It had been the complainant who had given the instruction to deduct €200 from his pay. There was also no basis for the claim for overtime pay. The respondent outlined that pay slips had issued to the complainant on email. The respondent concluded by saying that the complainant had not supplied evidence of his efforts at mitigating his loss.

Findings and Conclusions:

The complainant makes four claims in respect of his employment with the respondent. The employment commenced on the 1^st November 2013 and the complainant asserts he was dismissed on the 5^th August 2016. The respondent denies the claims. Much was in dispute in this case, including the level of the complainant’s remuneration. The complainant states he received €550 net plus an allowance of €30 per week; he states in the complaint form his gross pay was €800 per week. The respondent submitted pay slips after the adjudication, showing that the gross pay was €584.44. Given that these pay slips are the only documentary evidence I have, I find that the complainant’s weekly rate of pay was €584.44 gross.

CA-00008251-001

In respect of the complaint pursuant to the Terms of Employment (Information) Act, the complainant asserts that he did not receive a statement of the terms of his employment as required by section 3 of the Act. The respondent states that it supplied him with a contract of employment, which the complainant retained. Having considered the evidence of the parties, I find that the respondent did not supply the complainant with a statement of the terms of his employment within the first two months of his employment, as required by section 3 of the Act. I reach this finding because the respondent was unable to present evidence that such a document had been supplied to the complainant. It was unable to rebut the oral evidence of the complainant. I award redress equivalent to four weeks’ pay in respect of this claim. This amounts to €2,337.76.

CA-00008251-003

The complainant asserts that there had been two unlawful deductions were paid to his pay. One relates to unpaid overtime of €240 and a second in relation to a deduction of €200 made following the complainant’s use of a company credit card to discharge a phone bill. The respondent states that it was entitled to make this deduction as the complainant had used a company credit card to pay for a personal expense, pushing the respondent into overdraft. Section 5 of the Payment of Wages regulates the deductions permissible to the pay of an employee. Amongst other grounds, the section provides that deductions shall not be made without specific authorisation arising from a contract of employment. It provides that employees shall be notified in writing of any such deduction and furthermore provided with a receipt for such deduction. These steps were not taken by the respondent in this case and as a result, the deductions do not comply with section 5. The complainant is entitled to redress in the amount sought, i.e. €440.

CA-00008251-004

The complainant seeks redress pursuant to the Minimum Notice and Terms of Employment Act for the statutory minimum notice period on the termination of his employment. Having considered the evidence of the parties, I find as fact that the complainant’s employment ended on the 5^th August 2016 when he was summarily dismissed from his employment. I base this on the complainant’s evidence and the failure of the respondent to adduce sufficient evidence to support its contention that the complainant had, in fact, been on lay off. The complainant is, therefore, entitled to redress equivalent of two weeks’ notice pay i.e. €1,168.88.

CA-00008251-005

Having considered the evidence and submissions of the parties, I find that the claim of unfair dismissal is well-founded. I reach this finding for the following reasons. There was significant conflict between the parties over what happened in August and September 2016. The complainant asserts that the respondent stopped providing him with work, while the respondent asserts that the complainant was placed on lay-off. The complainant makes an alternative argument that if he was on lay-off, he was entitled to be paid for this period.

I find that the complainant was effectively dismissed by the actions of the respondent on the 5^th August 2016. This was the final day the complainant worked for the respondent and he was provided with no further work. Significantly, he was not provided with any documentary information about any possible lay-off and the only document produced to this effect was in late September 2016. There was no lay-off in 2015 but one appeared without documentary support in 2016. This leads to the conclusion that the respondent ceased providing employment to the complainant because of their dispute over the overtime and the use of the company credit card. No dismissal or disciplinary policy was followed. The concept of the mutuality of obligation in the employment relationship places the obligation on the employer to provide work; this did not occur in this case after the 5^th August 2016.

As I have found that the complainant was dismissed from his employment on the 5^th August 2016, there is no need to consider the complainant’s alternative argument of being entitled to pay in a period of lay-off. I have found there was no lay-off; he was dismissed.

In respect of mitigation, I note the complainant’s efforts to set up his own business and his availing of supports to promote this. I also note that the complainant could have also sought employment with other contractors or sub-contractors in the construction industry. Taking these factors into account, I award the complainant redress of €10,000.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

CA-00008251-001

I find that the complaint made pursuant to the Terms of Employment (Information) Act is well-founded and the complainant is entitled to redress of €2,337.76.

CA-00008251-003

I find that the complaint made pursuant to the Payment of Wages Act is well-founded and the complainant is entitled to redress of €440.

CA-00008251-004

I find that the complaint made pursuant to the Minimum Notice and Terms of Employment Act is well-founded and the complainant is entitled to redress of €1,168.88.

CA-00008251-005

I find that the complaint made pursuant to the Unfair Dismissals Act is well-founded and the complainant is entitled to redress of €10,000.

Dated:   25/09/17

Workplace Relations Commission Adjudication Officer: Kevin Baneham

Key Words:

Breach of mutuality of obligation in the employment relationship

Unfair Dismissals Act