Complainant

Respondent

Anonymised Parties

A Driver

A Meat Company

Representatives

David O’Reilly, O’Reilly Consulting Group

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00025089-001

17/01/2019

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

CA-00025089-002

17/01/2019

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

CA-00025089-003

17/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00025089-004

17/01/2019

The complainant was employed as a delivery driver on the 9th of August 2018 and his employment ended on the 22nd of December 2018. He was paid €561.89 gross and he worked a 44 hours week. he is claiming under the Industrial Relations Act that he was unfairly dismissed from his employment on the 22nd of December 2018. He is also claiming under the Payment of Wages Act that he was not paid overtime, that he was not provided with terms of employment in accordance with the Terms of Employment (Information) Act, 1994 and that he was not given breaks in accordance with the Organisation of Working Time Act, 1997.  

The complainant said he was employed by the respondent to deliver meat products to the respondent’s customers. On the 22nd of December when he returned to the depot after completing the morning deliveries, he was asked to collect two pallets of meat which would have taken approximately 45 minutes before he did any further deliveries. He said there were some orders at the depot for him to deliver. He said he asked the owner of the company would he be paid overtime because if he collected the pallets and did the other deliveries he would go beyond the normal finishing time. He said the owner of the company told him that it was Christmas time and it was busy period. He said he asked the owner of the company if he wanted him to work for free and he responded by saying he didn't care. The complainant said the owner then told him to either pick up the pallets or give him the keys of the lorry. He said that the owner then demanded the keys of the lorry and told him to leave the depot. The complainant said that he brought the van home in the evening and he understood from the respondent that he was dismissed when he demanded the keys off him. He left the depot on foot.

The complainant said he went to the factory on Monday the 24th of December to find out from the manager if he still had a job. He spoke to the manager who did not answer him and walked away. The complainant said that he believed he was dismissed. He said that he was very upset about losing his job at Christmas.

The respondent said that he supplies and delivers fresh meat to customers and he employs 5 van drivers for that purpose. The complainant returned to the company premises after making his deliveries at about 4 p.m. on Friday the 21st of December 2018.   Ms A, the employee whose job is to coordinate deliveries and collections, met the complainant at the door of the office at 4 p.m. and asked him to collect pallets of meat from another company. The complainant responded by saying he would not carry out the task and that he wanted to go home. She asked the director to come to the office as she did not feel comfortable dealing with the complainant. The director said that he asked the complainant to collect the pallets, but the complainant raised his voice and said no that he was going home as he did not work for free. The director said that he told the complainant that it was Christmas, and everyone was busy and that he needed to collect the pallets, but that if he wanted to go home he would have to leave the keys. The director told him he would have to get someone else to collect the pallets. The complainant handed over the keys saying that he was going and not coming back. The director said the complainant walked off and went to the office and demanded a letter to say he was dismissed. As the complainant was not dismissed no letter was provided to him. He then left the premises. The respondent submitted that the complainant terminated his own employment without notice and walked away from his job.

Dismissal is in dispute. The complainant states that he was dismissed when the respondent asked him for the keys of the van. The respondent states that the complainant dismissed himself by refusing to carry out a task and walking off the job. I note that the complainant had the use of the van to take home in the evenings. Likewise, I note that the respondent said in evidence that he gave the complainant a choice to either pick up the pallets or to give back the keys. The respondent accepted that the complainant returned to the depot to pick up deliveries but that it was never made clear to him that he was not required to do these deliveries and that he was only required to pick up the pallets. I note that the respondent made no effort to allay the complainant’s fears that if he had to pick up the pallets and do the deliveries that he would work have to work beyond his normal finishing time. In asking for the keys in such circumstances it seems to me that it was not unreasonable of the complainant to assume that he was dismissed particularly given that he had the use of the van to take him to and from work. I also note that the respondent was annoyed with the complainant for not coming into work that morning earlier than his normal start time to load his van. The respondent stated that the company was busy with Christmas deliveries and the complainant was the only one of the 5 drivers who refused to start early that day. I note that the respondent did not take the opportunity to rectify the situation when the complainant went to the depot on Monday the 24th December to find out about his job and met the manager. He said that the manager would not talk to him. For the above reasons, I am satisfied from the evidence that the respondent dismissed the complainant on the 22nd December 2018 for refusing to carry out a task.

There were no procedures adopted by the respondent in terminating the complainant’s employment.   The respondent said that he did not think of warning the complainant and he accepts that he did not follow the disciplinary procedures as set out in the handbook. There is an obligation on employers to follow fair procedures and natural justice in accordance with S.I. 146/2000 –Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

In relation to applying fair procedures, The Labour Court in the case of Beechside Company Ltd t/a Park Hotel Kenmare and A Worker LCR211798 stated: “The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

I am satisfied that the respondent has failed to show that there were substantial grounds justifying the dismissal and furthermore he did not comply with fair procedures. For these reasons, I find that the complainant was unfairly dismissed. I recommend the respondent pay the complainant compensation in the amount of €3,000.

I find that the complainant was unfairly dismissed. I recommend the respondent pay the complainant compensation in the amount of €3,000.

The complainant is claiming under the Payment of Wages Act, 1991 that the respondent did not pay him for overtime. He said he worked an average of 4 hours overtime per week and he was not paid for it. He said that he asked for payment for the extra hours on many occasions, but the manager ignored his request.

The respondents said that the complainant was paid an hourly rate of €12 and he was required to work up to 48 hours per week on this rate. Any hours in excess of 48 hours worked he received overtime at a rate of time and 1/2.

Having examined the payslips produced in evidence by respondent, I am satisfied that the complainant was paid overtime for any hours worked in excess of 48 hours per week. Therefore, I find that this complaint is not well founded.

I find that the complaint is not well founded.

The complainant states that he did not receive a Statement of the Terms and Conditions of employment in accordance with the Terms of employment (Information) Act 1994.

The respondent states that the company employed the services of a HR consultancy to draw up updated terms and conditions of employment and to provide an employee handbook in February 2018. All new employees were provided with these documents on commencement of employment. The respondent stated that the complainant was given his terms and conditions of employment and handbook shortly after commencement of his employment, but he did not return a signed copy to the office.

I am satisfied having reviewed the evidence that the complainant was provided with a copy of his terms and conditions of employment which he did not sign. In the circumstances, I find that the complaint is not well founded.

I find that this complaint is not well founded

The complainant said he did not receive any rest breaks during the working day in accordance with the terms of the Organisation of Working time Act, 1997. He said the employer expected him to eat in the van on the way to and from delivery drops and there were no rest breaks factored into the daily schedule. He said that when he started work he was accompanied by another driver who showed him the procedure. This driver did not take any breaks during the day and he was told that people in the company did not take any breaks. He said when he asked manager about breaks he was told that he should eat his lunch and his way to and from deliveries. He said he stopped the van on several occasions to eat his lunch and he got a call from his manager to tell him to get on with the deliveries.

The respondents said that the van drivers are not under daily supervision of management as they work alone and there is an understanding that drivers can take their breaks at times that suit their delivery pattern. The right to breaks is set out in the terms of employment and the employee handbook and management has also provided them with a safe work procedures document for delivery vehicles and this document instructs drivers to take breaks when they are tired. He said that he has no recording system for breaks and employees do not clock in or out. It is custom and practice for all drivers to take their breaks when they can and there is also an option to finish work earlier if the deliveries are complete the driver can go home. He said that the print out of the GPS tracker on the van showed that the complainant took breaks.

Section 12 of the Organisation of Working Time Act 1997 provides:

12.— (1)” An employer shall not require an employee to work for a period of more than 4 hours and 30 minutes without allowing him or her a break of at least 15 minutes.

(2) An employer shall not require an employee to work for a period of more than 6 hours without allowing him or her a break of at least 30 minutes; such a break may include the break referred to in subsection (1).

(4) A break allowed to an employee at the end of the working day shall not be regarded as satisfying the requirement contained in subsection (1) or (2).”

The respondent accepts he maintained no records of the breaks as required under the Act. I am satisfied that the respondent has the ultimate responsibility to ensure that his employees receive their statutory entitlement to breaks. The GPS tracker print out provides no evidence that the complainant had a break in accordance with either section 12(1) or (2) cited above. The respondent’s evidence that the complainant could go home early once the deliveries were finished, but this does not satisfy the requirements of the Act as per section 12(4) above.   I am satisfied from the complainant’s evidence that he did not receive his breaks in accordance with the terms of the Act. I find that the complaint is well founded, and I award redress in the amount of €1,000.

I order the respondent to pay the complainant compensation of €1,000 for breach of his rights under this Act.

Industrial Relations - Unfair Dismissal, Organisation of Working Time Act – Section 12 breaks, Payment of Wages – Overtime Payment, Terms of Employment (Information) Act 1994 – provision of statement of terms of employment