Complainant

Respondent

Anonymised Parties

HGV Driver

Road 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-00013831-001

08/09/2017

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

CA-00013831-002

08/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00013831-003

08/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00013831-004

08/09/2017

The complainant has been employed as a driver since September 2014 by the respondent which operates a road transport business. The employment is on a full-time basis and the wage is €444.00 per week. The complainant was the subject of disciplinary procedures which in May 2017 resulted in him being suspended for 4 weeks without pay. The suspension period included the June public holiday for which he was not paid.

The complainant had submitted a written grievance in relation to the process utilised in filling in time sheets.

The complainant was subsequently accused of incorrectly filling in the time sheets and subjected to disciplinary action.

The procedures used in the disciplinary process were flawed.

There is no provision in the contract of employment for unpaid suspension.

The sanction was applied without notice and the complainant was left without an income.   The complainant was not paid for the public holiday which occurred during his suspension.

The complainant deliberately filled in time sheets incorrectly.

The complainant represented breaks as working- time.

This action was tantamount to stealing from the respondent and was also a serious breach of road transport regulations.

The complainant was represented throughout the disciplinary process.

The respondent would have been within their rights to consider the complainant’s actions as gross misconduct warranting dismissal but chose instead the lesser sanction of suspension without pay.

The dispute contained in CA-00013831-003 under the Industrial Relations Act, 1969, and the complaint contained in CA-00013831-004 under Section 28 of the Safety, Health and Welfare at Work Act, 2005, were withdrawn on the day of the hearing.

Complaint No. CA-00013831-001:

On 2 March 2017 management wrote to the complainant in relation to how he had completed an Employee Form. This form was a record of working hours performed by drivers and was required to be submitted on a weekly basis. In the letter it was pointed out that management believed that the number of working hours had been overstated by the complainant and that the company had adjusted the hours and his pay would be calculated accordingly.

On 9 March the complainant lodged a grievance against the manager who had written the letter in regard to an illegal deduction from his salary and a refusal to amend his contract.   On the following day the complainant received a letter written by the same manager inviting him to attend a meeting to investigate whether the complainant had correctly completed the employee form and whether he was driving in conformity with EU Regulations covering road transport. The complainant was advised that the investigation could result in him facing disciplinary action and that he could be represented by a work colleague.

The meeting took place on 13 March and the complainant chose not to be represented. The complainant objected to being investigated by a manager against whom he had lodged a grievance. After a discussion on this point the manager adjourned the meeting. The meeting resumed after lunch and according to the complainant he was advised by the manager that it would be classed as a discussion. There was a detailed exchange between the parties as to what constituted working time and why breaks were not recorded. When the complainant received the minutes of the meeting he advised management that he did not accept that they accurately recorded what had occurred at the meeting. He also reiterated his objection to the manager who conducted the meeting.

On 30 March the complainant received a letter from the H.R. Manager inviting him to a hearing to discuss the grievance lodged on 9 March. There was an exchange of correspondence in which the complainant had complained about the delay in dealing with his grievance but the hearing was held on 19 April. The complainant was represented by his union official. Following this meeting the H.R. Manager wrote to the complainant with the outcome of the meeting. In this letter it was accepted that a deduction of €237.08 without notice from the complainant’s wages on 3 March should not have occurred and that this money had been refunded. The letter went on to state that there was no requirement to issue a new contract to reflect pay increases as these are reflected in a payslip.   There was also a breakdown of the different elements that constituted fortnightly pay and the complainant was advised that the meeting with the other manager was an investigatory meeting.   On 24 April the complainant’s representative wrote a detailed response which questioned a number of these points and initiated a request for information under the National Minimum Wage Act, 2000.

The complainant attended a disciplinary hearing on 5 May accompanied by his union official. A discussion took place as to whether the complainant was recording his breaks as “other work”. The complainant stated that he was as he was not satisfied with the responses he had gotten in this regard. This meeting was followed by a letter from the complainant’s representative expanding on the issues discussed. On 19 May the complainant was written to advising that the complaints that were the subject of the disciplinary hearing were well founded and warranted dismissal but that it had been decided to reduce this sanction to that of 4 weeks’ unpaid suspension. The complainant was advised of his right of appeal to a company director. The complainant did initiate an appeal which was heard on 31 May. The decision was to uphold the sanction.

Section 5(1) of the Payment of Wages Act, 1991, states:

(1)    An employer shall not make a deduction from the wages of an employee (or receive any payment from the 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, or

(b)    any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

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 wages of the employee), and

(iii)               before the time of the act or omission or the provision of goods and 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….

The complainant, in his submission, has argued that the procedures used in the disciplinary process were flawed, that the sanction of unpaid suspension is not provided for in the contract, that the sanction in itself was unfair and unreasonable and that the notice required by the legislation with regard to the deduction was not complied with. The respondent stated that the complainant had not raised a grievance in relation to his working hours through the grievance procedure but had proceeded to incorrectly fill in break-times as working hours. This had resulted in the forms being incorrect and left the respondent and himself open to a criminal prosecution for being in breach of the road transport regulations. The respondent considered that the filling-in of breaks as working hours was tantamount to theft and could be considered as gross misconduct.   The respondent argued that the complainant therefore could have been dismissed but had decided on a lesser penalty but one that underlined the seriousness of the offence. The decision to suspend the complainant without pay was therefore fair and reasonable in the view of the respondent.   The respondent also stated that as the complainant could be dismissed without notice he could also be suspended without notice.

Having considered these arguments I am of the view that the initial action of the respondent in classing all time as working time was incorrect. I accept that the complainant was of the opinion that he was not being paid correctly in relation to his working hours and was not satisfied with the responses received from management in this regard.   This however does not excuse false entries on forms that legislation requires to be completed accurately. I do believe that the investigatory part of the disciplinary process was flawed insofar as it should not have been conducted by a manager against whom the complainant had lodged a grievance.   Notwithstanding this reservation and having regard to the seriousness of the issue, the imposition of a sanction against the complainant was not unreasonable. Any sanction, however, must itself be in accordance with legislation, particularly a sanction that incurs a loss of payment to the employee concerned. As this is a complaint under the Payment of Wages Act I find that the respondent was in breach of Section 5 of the Act insofar as the sanction of unpaid suspension was not authorised by a term of the complainant’s contract of employment nor was the requisite notice furnished to the complainant one week before the implementation of the sanction. I therefore find this complaint to be well founded.

Complaint No. CA-00013831-002:

The complainant states that as a result of the sanction of 4 weeks’ unpaid suspension which became effective on 19 May 2017 he did not receive a payment for the Public Holiday which occurred on 5 June 2017. This is not disputed by the respondent but it was argued by their representative that having regard to the previous complaint there could not be a double recovery in respect of the day. I find this complaint to be well founded.

Complaint No. CA-00013831-003:

This dispute under the Industrial Relations Act was withdrawn at hearing.

Complaint No. CA-00013831-004:

This complaint under the Safety, Health and Welfare at Work Act, 2005, was withdrawn at hearing.

Complaint No. CA-00013831-001:

For the reasons outlined above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €1,776.00 as compensation in this regard.

Complaint No. CA-00013831-002:

I find this complainant to be well founded. The compensation for the day is included in the award made in respect of Complaint No. CA-00013831-001.

Complaint No. CA-00013831-003:

This dispute was withdrawn at hearing.

Complaint No. CA-00013831-004:

This complaint was withdrawn at hearing.