Complainant

Respondent

Anonymised Parties

Driver

Transport company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00012320-001

06/07/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00012320-002

06/07/2017

CA-00012320-001

The complainant commenced employment with the respondent on 1/7/2015 as a driver. He earns €1850 gross per month. He works 50 hours a week.

He was dismissed on 15/5/2017,

CA-00012320-002

He states the respondent owes him €879.79 in unpaid wages. The unpaid wages were due to him on 15/5/2017.

He submitted his two complaints on 6/7/2017.

CA-00012320-001

The complainant has worked as a driver with the respondent since 1/7/2015.

He asked for a few days off on 3/5/2017.His salary was not paid on due date of 9/5/2017. He rang on 11 May to enquire about his wages and advised that he would be back to work on Monday 15 May. When he turned up at 7 am, the respondent CEO advised him that he had no job.

The complainant advises that he did not keep the respondent advised as to why he needed time off or the duration of his absence. He didn’t respond to one call and text on 8/ 5/17. The complainant does not dispute the respondent’s assertions concerning the events leading up to his dismissal. The complainant advises that the respondent CEO’s son when asked by the complainant on the 12 May if he had a job said, “Why wouldn’t you?”

He argues that there was no reason to dismiss him. He was never put through a disciplinary process, he had no previous warnings. He missed a few days and called them his “fed-up days”. He did not enquire from the respondent as to an appeals process.

CA-00012320-002

He was due a salary of €879, payable on 15 May, made up of pay for 3 days 1,2 and 3 May plus payment for 3 days annual leave accrued at the date of his termination. He was not paid. The complainant phoned the CEO around the 12 June about non- payment of salary. The respondent told the complainant that he was withholding money as goods which were missing from one of his customers, were recovered by the Gardaí at the complainant’s home. The CEO told him that he would not be paid until all missing property or the value of same was returned to the respondent.   The complainant advised the respondent that this had nothing to do with him.

The Complainant has a contract. There is no reference to the obligation to pay monies to the respondent in the event that monies don’t tally or goods are missing or stolen while in the complainant’s charge.

The complainant’s job was to deliver consignments of TVs to An Post and it was from this operation that TVs went missing.

Mitigation of loss.

The complainant secured one month’s work in September 2017. He advises that he has applied to 5 companies for work – transport, recycling, telecommunications, social care positions. There was no written evidence of same. He advised that he did not apply for positions offering the minimum wage as he has a mortgage.

CA-00012320-001

The respondent CEO did not attend. He submitted a written statement dated 23/7/2017 to the WRC.

The respondent states that the complainant sent him a text on Wednesday the 3 May advising that he would not be in for the remainder of the week due to a family issue. The respondent texted back asking him if everything was Ok. The complainant replied that he would fill him in on Monday 8 May. He did not attend for work Monday 8 nor text or phone the director or his partner, or answer texts and phone calls. He did not attend for the remainder of the week, or, contact the respondent, despite calls and texts being sent to him.

On Friday 12 May the complainant rang to ask about his wages which were late due to a late payment from one of the respondent’s customers. D, the CEO’s son and partner informed him that his wages should be in his account that night. The complainant then asked D if he had a job to which D replied that he should ring the director the following day. The respondent did not receive any call from the complainant on either Saturday or Sunday. Due to this the respondent made arrangements to have his work covered on the following week as he assumed that he would not be returning to work soon.

The complainant turned in for work on Monday 15 May. The director advised him that he had no work for him as he was not aware of his return to work plans and he had to make arrangements. At this meeting the director also referred to unannounced absences – no advance contact on a number of occasions. The respondent called them “his fed-up days “and advised the complainant of his unhappiness at these practices though did not issue a warning. The complainant agreed with the respondent’s perception that he was unhappy and disillusioned with the job. The complainant accepted that he could not continue to just not show up for work when he didn’t feel like coming in and that he accepted that his job was in danger. The respondent shook hands and undertook to pay him his outstanding wages and holiday pay.

CA-00012320-002.

The respondent states that he held back the complainant’s wages of €879.79, due to him on 15/5/17. The reason for this was that the respondent has had to compensate his customers for the loss or theft of high value items while in the respondent’s care or during the course of their transport from A to B. They don’t have insurance- in- transit cover; this is not required and so loss must be made good by the respondent. The respondent advised the drivers that this could not continue and that they would be responsible for loss of goods while in their trucks.

A Garda raid in the complainant’s house during the week commencing the 3 May, the week he was off for family reasons, uncovered 12 televisions which are the property of a media company. The customer seeking reimbursement for lost property is the distribution agent for these TVs. Up to 3 May the complainant’s son who lives in the same house as the complainant and who was the cause of the raid as he was suspected of involvement in drugs or drugs money worked with this same customer, Company A, of the respondent.

The complainant was assigned to transport goods from Company’s A warehouse to An Post Mail Centre on that Saturday29 April. CCTV footage shows the complainant and his son loading 2 pallets of TVs into the complainant’s van. Each pallet contains 36 TVs. Only 30 labels and not 36 were affixed to the pallets. Some other TVs are placed in the bulkhead and covered with cardboard.72 TVs are loaded onto the van. Yet a total of only 60 TVs were offloaded. The respondent states that he can accept that the complainant would not have known that some of the TVs did not have labels affixed to them but would have known that he did not offload the full load of 72 TVs at the mail centre from his van. If a mistake was made he should have informed the respondent and the 12 TVs should have been returned. The customer for whom they took responsibility for the carriage and onward delivery of the 72 TVs has informed the respondent that they are seeking €2,400 for the loss of the TVs - €200 per tv. The respondent states that should the complainant lodge this amount to an independent account he will pay him his wages. This incident would have led to the complainant’s instant dismissal.

Shortly after the 15 May, a second incident t came to light following the complainants exit from the company. CCTV footage showed the complainant scratching the paintwork on a car at North Lotts area of Dublin. This too would have led to his dismissal.

CA-00012320-001.

On the basis of the uncontested evidence of the complainant, I find that he was dismissed on the 15/5/17.

The Act

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“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 “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states “…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a) ……………..

b)     the conduct of the employee”

The respondent’s written evidence described unreliable attendance, failure to turn up or give any indication of when he might return to work from the period 3 May - 12 May and that the absence of information led him to engage an alternative employee

The allegation of his involvement with the loss of goods while in his charge was not available to the respondent at the point of dismissal as the respondent stated that matter would have been grounds for dismissal if know to him the respondent at that time. It was not given as a reason for the dismissal.

The complainant accepted that he had not shown up for 8 working days and according to the complainant- 3 “fed –up days” over the previous 3 months and that this accounted for the respondent’s decision to dismiss him.

The complainant s advises that he had no contract nor was he aware of a disciplinary procedure. The EAT in   O ‘Halloran v Ballykisteen Hotel Ltd, UD 625/2013, a case involving a manager dismissed for allegedly interfering with company property and which ultimately led to a finding of no wrongdoing on his part criticised the lack of fair procedures. They stated that

“Where was the investigation? At what point was the claimant given an opportunity to be heard and defend himself? Where were the principles of natural justice adhered to?”

Irrespective of the actions of the complainant or the degree of wrongdoing, the respondent must follow fair procedures. Just as in the latter case the complainant in the instant case was deprived of any process conforming to the requirements of natural justice. There was no advance notice that dismissal was being contemplated, no process, no right of representation offered and no appeal procedure provided.

On the basis of the uncontested evidence of the complainant, I find that he was unfairly dismissed on the 15/5/17.

Loss

His p45 for 2017, submitted after the hearing, reveals gross income of €10,772 which includes the €2,300 he states he earned in September2017. This indicates his earnings with the respondent amounted to €8472, or €498 per week for the period 1 January to 30 April. The complaint’s loss is €498 x 33 weeks less 4 weeks work in September = 29 weeks. So, his loss amounts to €14,442. The complainant contributed to his dismissal by withholding information from the employer regarding his return whereupon the respondent had to engage an alternative employee and previous instances of un- notified absences.

Mitigation of losses.

The complainant gave verbal evidence of having applied for 5 positions but submitted no documentary evidence of his efforts to mitigate his losses. He stated that he was unwilling to accept jobs paying the minimum wage. He thus limited his efforts to mitigate his losses.

I find the dismissal was unfair. I award him compensation to the amount of €2000

CA-00012320-002

The respondent did not attend. His written submission on this complaint was available and had been sent to the complainant.

I find that he did deduct the complainant’s wage of €879 due on 15//5/18.

It is for the Gardaí and judicial bodies to investigate the complainant’s actions on 29 April.

Section 5 (1) of the 1991 Act states

“An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction.”

It is clear from these statutory provisions that the respondent was not entitled to deduct the complainant’s wages in the absence of notice of same. He did not meet the statutory requirement for advance written notice of the deduction. Hence the deduction was unlawful. I find that there was a breach of section 5 of the 1991 Act and the respondent should pay the complainant’s wage, of €879, payable to him on the 15 May within 42 days of the date of this decision.

CA-00012320-001

I find the complainant was unfairly dismissed. I decide that the respondent should make a payment of €2000 within 42 days of the date of this decision.

CA-00012320-002.

I uphold this complainant. I decide that the respondent should pay the complainant the wages which he withheld from him and which amounts to €879 within 42 days of the date of this decision.

Unfair dismissal; total absence of a fair procedure.

Deduction of wages on grounds of suspicion of wrongdoing; no written notification to the complainant.