ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00014014

Parties:

Complaint(s):

Date of Adjudication Hearing: 01/11/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

Date of Adjudication Hearing: 01/11/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

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, 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 was employed as a Delivery Driver by the Respondent since 1st August 2007. He maintained that he worked up to 16 hours a week and submitted that he was unfairly dismissed on 15th October 2017. The Complainant also complained that he did not receive the minimum rate of pay, that he did not receive a premium for working on Sundays, that he did not receive his annual leave entitlements, that he did not receive his public holiday entitlements, and that he did not receive a statement of his terms of employment in writing.

The Respondent denied that the Complainant was unfairly dismissed, or that it failed to provide the Complainant with his entitlements under the Organisation of working Time Act.

Summary of Complainant’s Case:

CA-00018387-001 Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Complainant submitted that he received a number of text messages from the Respondent between the 15th and 19th of October 2017. He stated that on 15th October 2017 he was informed he was not to go to work that week and that a full investigation was being conducted into his account regarding his orders and deliveries of stock. The Complainant further submitted that on 18th October 2017 he was informed by text that he would be sacked unless he explained the discrepancy with his stock.

The Complainant submitted that he was informed by the Respondent that management had been watching his account for over two months, and on 19th October 2017 he was told to return his keys and fob. The Complainant maintained that he was not made aware that management had an issue regarding his stock and he was not required at any stage to engage with management in relation to the issue. He advised that he was not subject to any disciplinary process and he was not formally provided with the reasons for his dismissal.

His solicitors wrote to the Respondent 15th November 2017 advising the Respondent that the Complainant had not been provided with his P 60, his contract of employment, and the reasons for his dismissal and requested copies of same.

CA-00018387-002 Complaint under section 24 of the National Minimum Wage Act, 2000

The Complainant maintained that he was not paid the National minimum wage of €9.25 per hour. He advised that he was paid a rate of €8.65 per hour and provided two payslips which he maintained support that that was his rate of pay.                                                                                                                   

CA-00018387-003Complaint under section 27 of the Organisation of Working Time Act, 1997- Sunday Premium

The Complainant submitted that he was not compensated for working on Sunday as required by the Organisation of working Time act 1997. He stated he worked every Sunday making deliveries.

CA-00018387-004 Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlements

The Complainant submitted that he was not provided with holiday pay or paid annual leave.

CA-00018387-005 Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlement                                                                                          

The Complainant submitted that he did not receive his public holiday entitlements in accordance with the Organisation of working Time act 1997. He advised he worked on Sunday nights into Monday mornings, including bank holiday mornings.

CA-00018387-006 Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant maintained that he never received a written statement of his terms of employment and that he never signed a contract of employment. The Complainant submitted that following notification of his dismissal his solicitor contacted the Respondent on 15th November 2017 seeking his contract of employment where he was provided with terms of employment but that the terms of employment did not bear his signature and it was not a statement that he had ever received before. The Complainant maintained he had not received any written notification and what the Respondent purported was his written statement of employment has never been provided to him during his course of employment.

Summary of Respondent’s Case:

The Respondent advised that the Complainant had been a diligent worker for a number of years and where he was allowed use the delivery van on a Saturday morning for private use. It maintained that it was flexible in regard to the use the van, but it had got out of hand. The Respondent’s Operational Manager confirmed in his evidence that the use of the van by the Complainant was something they had to address.

The Respondent advised that the Complainant’s working hours varied according to when the Complainant decided to start and where he would have worked three hours every Sunday evening on deliveries, and worked a further seven hours a week delivering product to customers’ doorsteps. The Complainant’s orders would regularly change, and this would impact on his weekly work where his hours would vary as a result. The Respondent submitted that similar to all drivers the Complainant would call in the order to a call centre and the product was delivered to a chill facility for collection by the Complainant before he made his door step deliveries.

CA-00018387-001 Response to Complaint under Section 8 of the Unfair Dismissals Act, 1977

The Respondent advised that around April 2017 concerns arose with regard to deliveries, and in May/June 2017 the Complainant was asked to update his delivery list. The Respondent maintained that in June 2017 the Complainant was spoken to about products that were going astray on his route which included plastic 2 litres of of milk, gallon jugs of milk, and orange juice. The Respondent advised that all staff (which included five full-time and three part-time staff) had been spoken to. The Respondent maintained that every week it would have received calls from clients about stock going missing. The Complainant advised the Respondent that he needed to update his customer list and he said he would revert to the Respondent as soon as possible.

The Respondent further advised that its drivers including the Complainant collected milk and produce from a Provider and concerns existed regarding the stock the Complainant was taking and delivering.   The Respondent explained that the Provider had CCTV in its chill room where the product was collected from, and that the Respondent’s Operational Manager would have spoken to the Provider with regards to stock going missing.

The Respondent maintained that in July 2017 the owner of the business and the Operations Manager observed the Complainant taking two plastic litre packs off another order in the Producers chill facility and when questioned about the incident which was recorded on a CCTV the Complainant advised that it was his nephew who took them and must have brought them home. The Complainant volunteered to cease bringing his nephew on the run.

In August 2017 the Owner and the Operations Manager again questioned the Complainant about the amount of milk being sold against the amount of money being collected. The Respondent advised the Complainant purchased €500 worth of product weekly and returned monies of €500 every Friday evening. He advised that based on the industry norm the figure the Complainant returned should have been nearer €700. The Owner asked the Complainant about the amount of plastic 2 Litres milk that been purchased and who was buying them but that the Complainant had no answer.

On Sunday, 15th October 2017 the Complainant advised the Respondent by text that stock was missing again. The Operations Manager advised that no stock was missing as he had checked the orders against the delivery docket on the Saturday. The Respondent then text the Complainant and asked him to park the van until the matter was investigated so they could establish where the missing stock had gone.

The Respondent advised that on 16th October 2017 the Operations Manager was informed from another driver that a Coffee Shop which was not on a client list had complained about not getting a milk delivery. As this was a concern for the Respondent it appointed an independent person to conduct an enquiry. The inquiry was advised by the coffee shop that the Complainant was supplying in the excess of 60 plastics a week. The owner also submitted that in 2018 a proprietor of a caravan park had phoned him stating that she too was purchasing litres of milk from the Complainant over the months of June July and August. The Respondent maintained the sales were never documented.

The Respondent advised that he attempted to contact the Complainant four times by phone and on 17th October 2017 the Complainant contacted him. The Respondent asked the Complainant to meet with the Operations Manager and the person conducting the enquiry to address the stock issue and see how they could move forward. At this point the Respondent had identified that in excess of €10,000 of stock was missing since 2016. The Respondent advised that the Complainant apologised and conceded that he had taken stock but that he could not repay the Respondent for the missing stock. He begged for his job and the Respondent advised that they needed to talk about what happened and how the Complainant was going to pay it back. The Respondent maintained that the Complainant said there was no way he could pay back and told the Respondent to “Fuck off and stick my job”, and the Complainant hung up the phone.

The Respondent also advised that the Operations Manager met the Complainant and handed him a letter suggesting they get together and work something out. The Complainant responded to the Operations manager, saying “not a chance am I paying”.

The Respondent submitted that on 18th October he spoke with the Complainant who conceded he was selling stock which was not documented and where the Complainant advised the had been taking around €150 a week.

The Respondent therefore maintained that the Complainant had been involved in theft and where the Complainant was afforded an opportunity of the payment plan to address the matter but that the Complainant said he could not pay back the amount. The Respondent maintained that every effort was made to come to a workable solution with the Complainant but that the Complainant would not agree to a plan with the Respondent. The Respondent submitted that the Operations Manager had handed the Complainant with a letter about the concerns but that the Complainant never contacted the Respondent again. The Complainant called to the Respondents accountant on 19th October 2017 seeking his P45 The Respondent therefore maintained that the Complainant was not dismissed but he refused to come back to work to resolve matters with the Respondent, and decided to leave his employment.

At the hearing the Complainant was in disagreement with much of the Respondent’s evidence. The Complainant advised that on 15th October 2017 he went to collect an order from the chill centre to find that half of his order was missing. He contacted the Respondent and the Operations Manager who told the Complainant that they had access to CCTV footage. This footage was never shown to the Complainant and he does not know where the mossing milk went. The Complainant also maintained that between the 15th and 18th of October 2017 nothing happened, and he did not meet with the Investigator appointed by the Respondent. On 18th October he asked by text was he to be sacked and he was informed by the Respondent that unless he can explain where the milk gone he would be sacked. The Complainant provided a copy of text messages he received on 18th October 2017 that indicated this is what he was told, and the following day he was asked to hand back his keys and fob.

He advised he was not aware that his account was being monitored, that he was not put on notice with regards to the Respondent’s actions, and there was no face-to-face meeting. The Complainant also advised he was accused by text of robbing, and was accused of being a thief. The Complainant maintained that he was not given a letter from the Ops Manager as alleged by the Respondent and the first he saw of this letter was at the hearing within. The Complainant also disputed the accuracy of the delivery sheets that were provided by the Respondent at the hearing.

CA-00018387-002 Response to Complaint under section 24 of the National Minimum Wage Act, 2000

The Respondent denied that the Complainant was not paid correctly. He advised that the Complainant was paid €100 a week net which amounts to €10 per hour net. He advised the Complainant was never tied to a strict work schedule and would have enjoyed the use of the van all day on Thursdays along with other times if requested.

CA-00018387-003 Response to Complaint under section 27 of the Organisation of Working Time Act, 1997- Sunday Premium

The Respondent submitted that the Complainant only worked three hours on a Sunday and that his pay would have reflected the Sunday work.                                                            

CA-00018387-004 Response Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlements

The Respondent submitted that the Complainant was afforded annual leave and that he received 8% of the hours he worked in the leave year. The Respondent advised that if the Complainant had not been receiving his annual leave he would have raised it before making his current complaint to the WRC.

The Respondent submitted that every Christmas the Complainant received holiday pay in lieu of his days off to assist him with Christmas expenses, and over the Christmas period doorstop runs were doubled so no driver was delivering over the Christmas holiday periods.

CA-00018387-005 Response to Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlement                                                                         

The Respondent maintained that the Complainant did not work public holidays. He advised that deliveries were made the day before a public holiday and therefore the Complainant had no entitlement to be paid on the public holiday as he did not work those days. It described the industry as being unique and where double deliveries would have been made before a bank holiday and therefore the Complainant never worked on a bank holiday.      

CA-00018387-006 Response to Complaint under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent maintained that the Complainant had been provided his terms and condition of employment in writing.

Findings and Conclusions:

CA-00018387-001 Findings to Complaint under Section 8 of the Unfair Dismissals Act, 1977

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted.

In the case within the Respondent has argued that in attempting to address its concerns regarding missing stock, it appointed an external party to enquire into matters. The outcome of that inquiry appears to have identified that there was evidence which supported that the Complainant had been selling milk to at least one customer that was not authorised, and where it was concluded in the enquiry that the complainant had been pocketing the sales of products amounting to approximately €150 per week which had been paid for by the Respondent.

The parties have disputed that the Complainant acknowledged any wrongdoing, whether the Complainant was afforded a fair process, or that he would have received correspondence from the Respondent about an investigation of matters. The Respondent also maintained that the Complainant decided to leave rather than seek to resolve matters, and where the Complainant sought his P45 from the Respondent’s accountant on 19th October 2017.

Having reviewed the evidence I am satisfied that no clear process was adapted by the Respondent to investigate matters despite the Complainant being advised by text on 15th October 2017 that the Respondent was conducting a full investigation of the Complainant’s account. The text messages indicate that the Complainant failed to answer four calls from the Respondent on 15th October 2017 which were not responded to until 18th October 2017 at which time the Complainant asked was he being sacked. The Respondent then indicated by text message that unless the Complainant can explain where all his milk was going he would be sacked, and on 19th October 2017 the Complainant was asked to return his keys and fob.

On the one hand evidence supports that the Complainant had been selling product and pocketing the sales, and where as evidenced in text messages he refused to respond to the Respondent’s requests to meet to seek a resolution of matters. On the other hand, the evidence supports that the Respondent indicated the Complainant would be sacked before a full investigation of matters had taken place, and on 19th October 2017, the day the Complainant sought his P45 he had been told to return his keys and fob.

I therefore find that the Complainant’s conduct contributed in no small way to the termination of his employment. Notwithstanding the Respondent has a clear responsibility to conduct matters reasonably and as such to be seen to comply to the process set out in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues and where it is expected employers will comply with the general principles of natural justice and fair procedures.

The absence of the Respondent to clearly outline these procedures, and the text of 18th October 2017 indicating the Complainant would be sacked unless he could explain matters, amounts to a procedure that was tainted with prejudice against the Complainant. Whilst acknowledging it was a challenging time for the Respondent, it did however appoint an experienced IR practitioner to conduct the enquiry and as such the Respondent should have been aware of the need to adhere to fair process before concluding that the Complainant had been guilty of any offence. Under these circumstances I find the Complainant was subject to procedures that amounts to an unfair dismissal, albeit he has contributed to the issues that led to the termination of his employment.

CA-00018387-002 Findings to Complaint under section 24 of the National Minimum Wage Act, 2000

The National Minimum Wage in 2017 was €9.25 per hour.

The Payslip provided indicates the Complainant was in receipt of €100 per week. Whilst no hours of work are indicated on the payslip, it is noted the rate of pay on the payslip is €8.65 per hour, which amounts to approx. 11.6 hours week per work. The parties disputed the hours worked, where the Respondent maintained it was on average 10 hours per week. The Respondent did not provide accurate records of the actual hours worked by the Complainant.

Having considered the evidence I find that the Complainant was paid 60cents less per hour than he was entitled to receive as such the respondent was in breach of its obligations under the National Minimum Age Act 2000.

CA-00018387-003 Findings to Complaint under section 27 of the Organisation of Working Time Act, 1997- Sunday Premium

Section 14(1) of the Organisation ff Working Time Act 1997 requires that an employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work.

As the Complainant was required to work 3 hours on a Sunday I find that the Complainant was entitled to a Sunday premium. As he was paid less than the Minimum wage I uphold that he was not compensated for working Sundays.

I therefore find that the Respondent was in breach of S14 of the Organisation of Workign Time Act 1997 and the Complainant was entitled to be compensated for three hours of Sunday work for 26 weeks.

CA-00018387-004 Findings to Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlements

Section 19(1)(c) of the Organisation ff Working Time Act 1997 provides that an employee shall be entitled to paid annual leave equal to 8 per cent of the hours, he or she works in a leave year (but subject to a maximum of 4 working weeks)

As the Respondent failed to provide leave records for the Complainant I find that he did not receive his annual leave entitlements and find the Complainant is entitled to his annual leave calculated for the period 1st April 2017 to 15th October 2917.

CA-00018387-005 Findings to Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlement                                                                         

Section 21(1)(a) to (d) of the Organisation of Working Time Act provides for entitlements in respect of public holidays, namely either a paid day off on that day, or a paid day off within a month of that day, or an additional day of annual leave, or an additional day’s pay, provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

During 2017 the Complainant was entitled to three public holidays as he had worked at least 40 hours during the period of 5 weeks ending on the day before those public holiday. I therefore find that the Respondent is in breach of Section 21 of the Organisation of Working Time Act 1997.

CA-00018387-006 Findings to Complaint under section 7 of the Terms of Employment (Information) Act, 1994

Section 3(1) of the Terms of Employment (Information) Act, 1994 requires that an employer shall, not later than 2 months after the commencement of anemployee’s employment with the employer, give or cause to be given to theemployee a statement in writing containing…particulars of the terms ofthe employee’s employment.      

Based on the evidence provided I am satisfied that the Respondent failed to provide the Complainant with written notification of his terms and conditions of employment.

Decision:

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.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints 002 to 006 in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00018387-001 Decision Regarding Complaint under Section 8 of the Unfair Dismissals Act, 1977

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim. As I have found the Complaint was subject to procedures that led to an unfair dismissal I must decide on a grant of redress in accordance with section 7 of the 1977 Act. Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded.

Relevant to the case within, where compensation sought compensation, Section 7(1)(c)(i) of the Act provides: “…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,…”

Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

I find that the dismissal is substantially attributable to the acts and conduct of the employee but that the employer failed to comply with a fair procedure when dealing with the employee’s behaviour and in effect told the Complainant he would be sacked if he did not repay the Respondent for the missing stock and where this occurred before th Respondent had completed any fir disciplinary procedures .

Taking all of this into account I consider it just and equitable in all the circumstances to award the Complainant six weeks’ pay in compensation amounting to €600 (subject to any lawful deductions).

CA-00018387-002 Decision Regarding Complaint under section 24 of the National Minimum Wage Act, 2000

Section 26. (1) (a) of the National Minimum Wage Act, 2000 requires that a decision of an adjudication officer in relation to a dispute in respect of the entitlements of an employee under the Act may contain a direction to the employer to pay to the employee an award of arrears, being the difference between any amount paid or allowed by the employer to the employee for pay and the minimum amount the employee was entitled to be paid or allowed in accordance with this Act in respect of the period to which the dispute relates.

Having found that the Complainant was paid less than the minimum wage by 60c per hour, and where the Complaint worked on average 11.6 hours per week I find he was underpaid by €6.96 per week.

I therefore direct that the Complainant be paid an award of €302 in arrears (subject to any lawful deductions)..

CA-00018387-003 Decision Regarding Complaint under section 27 of the Organisation of Working Time Act, 1997- Sunday Premium                                                                                                                            

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 14 of Act.

Having found that the Complaint is well founded I direct that the Complainant be compensated for three hours of Sunday work for 26 weeks. As the Labour Court has determined the hourly rate of time-plus-one-third is a reasonable level of compensation for working on Sundays (Chicken & Chips Ltd T/A Chicken Hut – And – David Malinowski [Dwt159], And In Viking Security Ltd. -V- Valent [Dwt1489 I therefore direct that Respondent to pay the Complainant €238 (subject to any lawful deductions) in compensation for the Sunday working hours he was not paid.

CA-00018387-004 Decision Regarding Complaint under section 27 of the Organisation of Working Time Act, 1997- Annual Leave Entitlements

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 19 of that Act. As I have found the Complainant was entitled to 8% of the hours worked, and where he worked for 11.6 hours per week, he was entitled to 24 hours annual leave for the six months prior to the termination of his employment. As the Respondent did not provide leave records for the Complainant I find the Complaint is well founded and direct the Respondent to pay the Complainant 24 hours annual leave at €9.25 per hour which amounts to €222 (subject to any lawful deductions).

CA-00018387-005 Decision Regarding Complaint under section 27 of the Organisation of Working Time Act, 1997- Public Holiday Entitlement                                                            

Section 27 of the Organisation of Working Time Act, 1997 requires that I make a decision in relation to breaches of section 21 of that Act. As I have found that the Complainant did not receive his entitlements for 3 public holidays, I decide the complaint is well made and direct the Respondent to pay the Complainant arrears of €90 (subject to any lawful deductions) for his public holiday entitlements.

CA-00018387-006 Decision Regarding Complaint under section 7 of the Terms of Employment (Information) Act, 1994

In accordance with Section 7 of the Terms of Employment (Information) Act, 1994 I find that the complaint is well founded and that the Respondent has failed to provide the Complainant with written terms of her conditions of employment.                                                                                       

I therefore order the Respondent to pay to the Complainant compensation of two weeks earnings which amounts to €200 (subject to any lawful deductions).

Dated: 20th February 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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