ADJUDICATION OFFICER RECOMMENDATION

Adjudication Reference: ADJ-00015246

Parties:

Complaint(s):

Date of Adjudication Hearing: 14/12/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 13 of the Industrial Relations Acts 1969following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.

Background:

The Complaint was employed as a Driver where he submitted that he had been subject to illegal deductions from his wages from January 2018, and that he has not been paid his correct annual leave entitlement since 2013. The Respondent denied that the Complainant had been underpaid or had not received the correct holiday pay entitlements.

The parties acknowledged the matter was entered for conciliation with the WRC but as two further complaints were subsequently raised by the Complainant they were advised conciliation could not proceed.

Summary of Complainant’s Case:

The Complainant submitted that he was employed as a driver on 22 January 2013 on a rate of pay of €689.19 gross. However, when he took annual leave or public holidays from 2013 to 2018 he was paid €43.03 less a day during his holidays, and from 2018 he was paid €33.61 less a day when he was on holidays. He maintained he was owed €7,430.

The Complainant submitted that he was employed as a Shunt Driver and that this work did not require him to be working away from his place of work or spend overnights away for his place of work. He therefore submitted that his pay amounted to the gross amount of his salary and should not be made up of a subsistence allowance which was the amount of pay that was deducted from him when he was on annual leave. He therefore maintained as a Shunt Driver his rate of pay was different to that to a Transport Worker/ Haulage Driver and therefore his gross pay was not inclusive of allowances.

Summary of Respondent’s Case:

The Respondent maintained the Complainant was a driver and where the Complainant satisfied the requirements to be paid a base salary and an additional subsistence allowance, as per his contract of employment. The respondent submitted that the daily substance allowance was deducted from the Complainant’s pay when he was on leave as he did not qualify for the subsistence.

The Respondent acknowledged when the matter was formally brought to its attention in November 2017 it realised the Complainant had been overpaid his subsistence allowances and it resolved this matter with the Office of the Revenue Commissioner and the Complainant. The Complainant was then paid a lower subsistence allowance in accordance with agreed rates as set out by the Irish Road Haulage Association. To offset any loss the Respondent also paid the Complainant an extra days pay for each week he took his annual leave.

Recommendation:

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Having considered the matter, I note the dispute is complex, and in effect is related to whether the Comp is a Haulage Driver and Transport worker, or is a shunt driver and not a transport worker. There is a clear disagreement between the parties as to the nature of the work being conducted by the Complainant.   The nature of the work is a seminal point in the dispute and determines whether the Complainant has received his correct holiday pay entitlements.

The parties had agreed to conciliation before the hearing within. The conciliation process was being put in place before the Complainant submitted his other complaints. The parties are agreeable to re-enter the conciliation process for this specific dispute and for the other complaints to be dealt with under the relevant employment act or statute.

I therefore recommend the matter be referred back to the WRC Conciliation Service, and that both parties partake in the conciliation process.

As the Respondent is in agreement to conciliation, I recommend the Complainant resubmit the dispute to the WRC Conciliation Service for resolution.

Dated:  7th March 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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