ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00021142

Parties:

	Complainant	Respondent
Anonymised Parties	A Storeman	A specialist Building Supply Company

Representatives

Self-Represented

Self-Represented /Company Manager

Complaint(s):

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-00027867-001	18/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00027867-002	18/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00027867-004	18/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00027867-005	18/04/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00027867-006	18/04/2019

Date of Adjudication Hearing: 09/09/2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 6 of the Payment of Wages Act, 1991; Section 7 of the Terms of Employment (Information) Act, 1994;Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The main issues in contention concern a Storeman and his alleged Unfair Dismissal by a Building Supplies Company. There are attached Payment of Wages and Terms of Employment complaints.

1: Summary of Complainant’s Case:


Act	Complaint/Dispute Reference No.	Summary Complaint
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00027867-001	An illegal deduction was made from the Complainant’s wages in relation to a dispute regarding the Rental payments on a house rented to provide accommodation to employees. The Complainant is due €600 Euro as payment for his final week and outstanding Holidays.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00027867-002	The Complainant alleged that he had never received a Statement of his Terms and conditions of Employment.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00027867-004	The Complainant alleged that he was required to drive Road Vehicles and Forklifts without any proper training or proper insurance.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00027867-005	The Complainant was dismissed on the 1st March 2019 on the alleged grounds of Redundancy. This was a bogus reason, he was never given proper consultation to explain the decision nor was he afforded any opportunity to examine other work opportunities in the company. No retraining was considered. He had longer service than 7 other employees and after his Redundancy another new worker was hired. The Dismissal centred on the ongoing dispute with the Employer regarding the Rented House. The Employer had become annoyed with him over this issue and his Dismissal was the consequence.

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

CA-00027867-006

Utility Bills for the Rented House continued to keep coming for the Complainant. The House had been rented in his name not that of the Employer. However, he never had any control over who was in the House -the Employer simply installed them. The other Tenants refused to pay any contribution believing that it was being paid for by the Respondent employer. The Complainant has accordingly large liabilities due to the Utility Companies.

2: Summary of Respondent’s Case:

Act	Complaint/Dispute Reference No.	Summary Employer Response
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00027867-001 Monies outstanding from Holidays and Pay regarding a dispute over a Rented house.	Sums of €850 (on the 20/11/2018) and some €960 for Deposit and December and March rents were paid by the Employer. These monies are still outstanding. The wage stopping of the € 600 must be seen in this light. The monies will be paid once the outstanding other debts are clear.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00027867-002 The Complainant alleged that he had never received a Statement of his Terms and Conditions of Employment.	This is technically correct but the complainant was never in any doubt as to his Terms & Conditions of Employment.
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00027867-004	All proper Driving procedures and Policies were followed by the Employer. All proper records were kept.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00027867-005 Unfair Dismissal	Put simply the business of the Respondent went into a major slow down in late 2018 largely due to uncertainty among client regrading the Brexit impact on the Irish economy. The Respondent is a Specialist Sub Contractor with a heavy reliance on UK suppliers. The type of Works they supply to are generally large projects and as such susceptible to Investor confidence issues. By February 2019 it was clear that the work was not there for the Complainant and he was made Redundant. He was not suitable for any other work in the Company (such as on-site Hands On manual work) as he did not have a proper Construction background. Likewise retraining him as a Stainless-Steel Welder as was suggested was not a feasible option. The work had dried up and he had to be let go. There was no other Agenda or Reason as implied by the Complainant.

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

CA-00027867-006 Utility Bills for the Rented House

This is not a proper Payment of Wages claim. The rented House was in his name and it is not the Respondent’s issue as to how the Utility bills were allocated among the people staying there. The Respondent was never in any way liable for Utility Bills.

3: Findings and Conclusions:

Principally from the Oral evidence supported by some documentation.

3:1 The Relevant Law.

The principal piece of Legislation here in the Unfair Dismissals Act,1977 supported by SI 146 0f 2000 -Statutory code of Practice on Grievance and Disciplinary Procedures. As regards the Redundancy element of this case we can look at the Redundancy Payments Act,1967 for additional guidance.

The Payment of Wages Act,1991 has also to be referred to.

3:1:1 Redundancy and Unfair Dismissal.

Section 6 (4) of the Unfair Dismissals CTA,1977 states as follows.

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute

However, taking Subsection C above the vast body of Legal Precedent points to the overwhelming need for an Employer to demonstrate that the redundancy was “Genuine” i.e. related to a real business need and “Impersonal”. This latter means in plain English that it is the Position/Job occupied by the Complainant that has to go and that the decision has nothing to do with any issues related to the Person involved. The case of St Leger v Frontline Distributors Ireland Ltd [1995] ELR 160 would be a standard and oft quoted precedent.

3:1:2 Payment of Wages Act and Deductions.

The basic principle to be applied here is that “Deductions” from Wages, unless governed by Law such as PAYE or other Legally based charges, must be agreed with the Employee in advance and to be of a reasonable nature. An exception is the imposition of Deduction regarding acts or omissions of the employee, damaging goods or employer property for example, but any deductions must be “fair and reasonable.”.

Withholding Wages or Holiday Pay for the recovery of a Debt incurred outside the Wages context, in this case a House Rental, would have to be seriously questioned. The Provision of Accommodation by an Employer is commonplace enough and it can properly be tied to an employee’s Contract.

A very clear Legal basis agreed in advance and set out in writing would have to exist for the Deductions of Rent or other Household expenses from an Employee’s Wages or the withholding of payments on the ending of an employment to cover such monies.

Informal Loans, without any paperwork regarding recovery from Wages, made by an Employer to an Employee are not covered by the Payment of Wages Act.

3:1:3 Consideration of the Evidence. Conclusions drawn by Adjudicator.

All cases, irrespective of Legal Precedents, rest on their own merits and particular evidence. I will consider this now.

Act	Complaint/Dispute Reference No.	Summary Adjudicator Conclusions.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00027867-001 Monies outstanding from Holidays and Pay regarding a dispute over a Rented house.	There was no Agreement in Writing regarding the Rented House and the Monies advanced by the Respondent. No statutory Basis exists to justify the Wage Stops/Withholding. The sum claimed is €600 by the Complainant being a Final Weeks wages and Outstanding holiday pay The Outstanding Wages/Holiday Pay of €600 is legally due to the Complainant and should paid forthwith. I so order.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00027867-002 The Complainant alleged that he had never received a Statement of his Terms and Conditions of Employment.	No written Contract of Employment was produced in evidence. Under the provisions of the Terms of Employment (Information) Act, 1994 I award the sum of €100 as Compensation to the Complainant for breach of a Statutory Right
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00027867-004	As Explained at the Oral Hearing this piece of Legislation is not applicable in this case and the Complaint is accordingly Not Well Founded,
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00027867-006 Utility Bills for the Rented House	This is not a proper Payment of Wages claim. The rented House was in the Complainant’s name. How this situation arose was a matter of some controversy. It could well be a matter for another Legal forum. However, as things stand it is not the Respondent’s issue as to how the Utility bills were allocated among the people staying there. The Respondent was never legally liable for Utility Bills incurred in the house. As a Payment of Wages complaint it must be Set Aside.

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

CA-00027867-005 Unfair Dismissal

See Below

3:1:4 The Unfair Dismissals Complaint.

This entire case was overshadowed by the Rented House controversy. An Unfair Dismissals case must be free, as far as possible, from extraneous factors and concentrate on the solely employment issue.

In this case the Respondent argued that a business downturn had taken place and that the redundancy of the Complainant was the inevitable, if unfortunate ,result.

In a Redundancy & Unfair Dismissals situation, even where only one employee is involved , considerable prior consultation is required. All available alternatives have to be explored, in consultation with the employee , in good time .

In Meenan, Employment Law (First Edition) 2015 she quotes from EAT Decision 993/2009 as follows

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases there may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedures may lead to the conclusion that an unfair selection for redundancy had taken place.”

In the case I hand and going on the Oral evidence from both parties I had to come to the view that there had been little real consultation in this case. The view seemed to be that the Complainant was primarily suited only to Office work and any other work such as Hands On labouring on sites would not be suitable. The Respondent continued with a substantial workforce in this area.

On the Respondent’s favour was the argument that they had worked for many years in the Office without the Complainant and were simply reverting to this model of administration. Business trading figures referred to also showed a dip in trading.

However, it was also clear that the whole rented House issue had soured relationships between the parties, and it was hard not to surmise that this was a contributing factor in the Redundancy decision.

In Frizelle v New Ross Credit Union Ltd, 1999/IEHC /137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment . In simple language a “clear agenda” is a basic requirement.

In this case the overhang of the of the House issue was hard to avoid.

The redundancy of the Complainant was based on a decision regarding the staffing of the Office /Store Premises. The work of the Company continued uninterrupted.

The Oral evidence of the Respondent was that the volume of business and through put in the Store had fallen significantly. They went back to the former system of two people in the Office & Store .

In the normal course of events this would seem a reasonable justification but the overhang of the Rented House controversy casts a shadow over proceedings.

In addition, the Complainant was not afforded a Right of Appeal against the Dismissal.

However, I noted that the Complainant has become quite uncooperative towards the end of his employment and the issues of unpaid loans was still outstanding. The relationship between the parties had, it appeared, soured .

On balance and having carefully reflected on the entire case I came to the view that the Dismissal was Unfair - the Redundancy defence simply did not appear strong enough to convince me that it was the sole and only reason for the Dismissal.

Accordingly, the complaint for Unfair Dismissal is Well Founded.

4: Decision:

Section 41 of the Workplace Relations Act 2015; Section 6 of the Payment of Wages Act, 1991; Section 7 of the Terms of Employment (Information) Act, 1994;Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.

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

4:1 Redress for the Unfair Dismissal Complaint.

Section 7 of the Act requires that ,where Reinstatement or Reengagement is not applicable (clearly the case in this situation) an Award of Compensation is made that is “Just and Equitable in the circumstances” .

Bearing in mind the short service of the Complainant and his statement that he had re-entered the workforce at the end of May 2019 on a 30-hour basis and on a 40-hour basis on the 1st August ( both on the minimum wage) I felt that an award of €5,000 as compensation for the Unfair dismissal would be just and equitable.

4:2 Summary Decisions

Act	Complaint/Dispute Reference No.	Summary Decisions /Please refer to Section three above for Reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00027867-001 Monies outstanding from Holidays and Pay regarding a dispute over a Rented house.	The Outstanding Wages/Holiday Pay of €600 is legally due to the Complainant and should paid forthwith. I so order.
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00027867-002 The Complainant alleged that he had never received a Statement of his Terms and Conditions of Employment.	No written Contract of Employment was produced in evidence. Under the provisions of the Terms of Employment (Information) Act, 1994 I award the sum of €100 as Compensation to the Complainant for breach of a Statuary Right
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00027867-004	As Explained at the Oral Hearing this piece of Legislation is not applicable in this case and the Complaint is accordingly Not Well Founded and Set Aside
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00027867-006 Utility Bills for the Rented House	This is not a proper Payment of Wages claim. As a Payment of Wages complaint, it must be Set Aside.

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

CA-00027867-005 Unfair Dismissal

A Sum of €5,000 is awarded as Compensation for the Unfair Dismissal.

Taxation of all awards to be discussed with the Revenue Commissioners.

Dated: 11th November, 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee

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