ADJ-00017071

Complainant

Respondent

Anonymised Parties

A Truck Driver

A Transport Company

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021977-001

20/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021977-002

20/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00021977-003

20/09/2018

The issues in contention concern a Truck driver and a Transport Company in relation to alleged Unpaid Wages, Conditions of Employment – no statement of T&Cs supplied and alleged non-payment of Holidays.

Payment of Wages Complaint – CA -00021977-001

The Respondent maintained that the shortfall in the Complainant’s wages was due to an Agreement that had been arrived at on the 13th December 2016 whereby the Complainant would accept a weekly deduction of €50 per week to cover the costs incurred by the Respondent in relation to a number of vehicle accidents and accidental damages to customer premises that were the responsibility of the Complainant.

Terms of Employment (Information) Complaint - CA -00021977-002

It was accepted that no formal documentation in regard to T&Cs had ever been issued to the Complainant. However, he was well aware of his Terms and Conditions and his claim form clearly indicates this.

Holliday Pay complaint. CA -00021977-003

The Complainant had been responsible for considerable damages to the Respondent’s vehicles and some Customer premises. It was clear to him at all times that he had to make a contribution towards these costs and foregoing Holiday pay was part of this.

3:1       This was a highly contested claim on all fronts. The Respondent was now winding up his business and possibly going into insolvency. At the date of the hearing he was in discussions with his legal and accounting advisors as to how best to arrange this. Written records were not in a good situation and the business was effectively gone

It had to follow, therefore , that in an almost absolute absence of any documentary evidence ,the verbal evidence of the Parties had to be judged based on probability and probity.

As background it was maintained by the Respondent that the total sum that the Business was now liable for regarding all vehicle accidents and damages to premises occasioned by the Complainant was approximately €7,750. This was not really contested by the Complainant.

It was also accepted that a weekly deduction of € 50 in lieu of damages incurred had been introduced but the duration and the amounts liable were contested.

The withholding of Holiday Pay on Termination had initially never been part of this. This aspect was hotly contested by the Complainant.

Accordingly, based on the oral evidence together with some minimal written evidence from the Respondent and my view of the probity of the parties I found as follows.

3:2       Payment of Wages Complaint – CA -00021977-001

In December 2016 the Respondent informed the Complainant by letter (13/12/2016) (given in evidence) that the total sum of damages equating to € 2,405.25 (O’Brian Frozen Foods €1,305 and Baps Frozen foods -€1,100) was due to be deducted at €50 per week. This would have taken the Complainant some 48 weeks to clear -effectively to the end of 2017 -certainly to the date of his going on Sick Leave on the 4th October 2017.

In his oral evidence the Complainant was very ambivalent as regards this pattern of deductions, but I took the view that it had taken place and had been reluctantly agreed to. The letter of the 13/12/2016 also contained the Respondent statement that

“further damage caused by you will result in you having to pay the full costs yourself”.

The Complainant denied ever receiving the letter of December 2016.

On balance having heard both parties and considering all aspects I had to accept the Respondent version of events.

On the Complainants return from almost three months Sick Leave on the 25th January 2018 the Respondent maintained that further damage to a truck had been incurred costing an additional €2,500. The Respondent maintained that the weekly deduction as recompense against damages had continued. Total deductions required ,at this stage, would have been the sum of the initial damages plus the additional truck damage. This would have amounted to € 2,405 plus €2,500 or € 4,905 in total which exceeds the deductions of € 4,460 claimed by the Complainant.

Based on the Oral evidence of the Parties and the discussion and examination by the Adjudication Officer I came to the view that the deductions had been agreed between the Parties.

I had to note that there was no written record presented, as required by Section 5(1) c of the Act, of the Complainant having ever agreed in writing to the Deduction. The Respondent maintained that a hand-written record of this agreement had been given by the Complainant. In the confusion of the wind up of his business it had been mislaid.

Bearing in mind the almost total absence of any written records I took the view that the Complainant, had by default accepted the decuctions even if now a written record, even albeit a handwritten one, was impossible to source at the date of the Hearing. I found it hard to accept the Complainants’ recollection of events regrading matters in general.

In final summary having considered all the evidence from the Parties I came to the view under Section 5 of the Payment of Wages Act ,1991 that the deductions were proper, were fair and reasonable and had been notified in advance by the letter of the 13th December 2016.

The Payment of Wages claim is accordingly dismissed as not well founded.

3:3       Terms of Employment (Information) Act ,1994 Complaint - CA -00021977-002

It was accepted that no Statement of Terms and Conditions as required by the Act had ever been provided.

The Claim is well founded, and I award the sum of €100 to the Complainant in compensation for breach of a Statutory right.

3:4:   Holliday Pay complaint. CA -00021977-003

It was not contested that outstanding Holiday Pay was in question. In the absence of any written records and the hotly contested dispute over physical Damages it appeared clear to me that the Holiday Pay was outstanding. I noted Section 25(4) of the Organisation of Working Time Act regarding the burden of proof onus on the employer to maintain records.

It is also clear from numerous Legal precedents that Holiday Pay is a separate Legal entitlement and as such is not liable to be considered as suitable for the damages deduction arrangements that arose in this case. Certainly, it is beyond all doubt that the Complainant did not agreed to any suggestions that might have been made (which they were not) to forgo his Holiday Pay in lieu of any Vehicle damages.

Accordingly, I had to find the Holiday Pay claim well founded and award the amount claimed. This amounted to 14.15 days. The daily rate of pay was €80 before subsistence therefore the amount due is €80 by 14.15 days = €1,132.

An award of €1,132 is made in favour of the Complainant

Act

Complaint/Dispute Reference No.

Summary decision. Please refer to Section Three above for detailed reasoning.

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

CA-00021977-001

Claim is not well founded and is dismissed.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00021977-002

Claim is well founded.

An Award of €100 is made in favour of the Complainant.

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00021977-003

Claim is well founded.

Holiday Pay of €1,132 is awarded in favour of the Complainant.