Complainant

Respondent

Parties

Michael Butler

Freddie Chute t/a Chute Distribution Ltd

Complainant

Respondent

Anonymised Parties

An employee

Milk Distributor

Representatives

John Fitzgerald JJ Fitzgerald & Co. Solicitors

Rory Treanor Peninsula

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-00026255-001

13/02/2019

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

CA-00026255-002

13/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00026255-003

13/02/2019

The Complainant was in dispute with his employer since the employer required him to change work location. He contends the employer owes him a number of weeks’ wages for periods he turned up for work and that he has been made effectively redundant.

The Complainant has been employed by the Respondent as a milk delivery person since 1st September 2006. In October 2016 he took up a position as a Retained Firefighter. He received a letter of support for this from the Respondent who stated that his duties would easily facilitate attendance to emergency call outs and he could be released for such duties at any time.   In May 2018 the Complainant’s working hours were reduced to a 3 day week. Then in December 2018 he was told he could work an 8 hour week in the same location or 3 days (24 hours) in another location. The Complainant replied that he would turn up for work in the same location as he had always worked. He turned up for work on 31st December 2018 and there was neither van nor product available for distribution.   The Complainant subsequently tuned up for work on 2nd January and 7th January and the same circumstances occurred.   The Complainant contends that the Respondent owes him 4 weeks wages unlawfully deducted as per the provisions of section 5 of the Payment of Wages Act 1991.   Further, the dispute the Complainant has with the employer as referred under the Industrial Relations Act 1969 is that the Respondent unilaterally changed the Complainant’s working hours.   The Complainant also contends in the circumstances where no work is being made available to him he is entitled to redundancy.

The Complainant has been employed as a milk delivery person since 2006 working 24 hours per week.   He is also employed by the Fire Department as a second job. In May 2018 the Complainant left his shift to attend a call with the Fire Department without notifying his employer. The Respondent held a meeting with the Complainant regarding this on 24th May 2018. Throughout 2018 the Complainant persistently abandoned his shifts or failed to attend citing activities with the fire service. This jeopardised the Respondent’s business. For operational reasons the Respondent was required to reduce the number of hours available to all staff. The Complainant’s hours were reduced to 24 hours per week.  For most of November 2018 the Complainant was absent without leave.   On 11 December 2018 the Respondent met with the Complainant to discuss future options in respect of his work. Due to the Complainant’s repeated abandonment or failure to attend work it was necessary to allocate him with a ‘low priority’ round. He was offered 24 hours on an alternative round or 8 hours on his present round.   He opted for neither round.   Subsequently, the Respondent was forced to write to him placing him on the alternative round from 3 January 2019.   The Complainant has been absent without leave since then. He was invited to attend a number of disciplinary meetings which, with the exception of one on 14 March 2019, he failed to attend.

CA-00026255-001 Payment of Wages Act 1991

The Respondent denies the allegations that the employee turned up for work and there was no milk there for delivery. The Respondent has fully complied with the Payment of Wages Act 1991.

CA-00026255-002 Industrial Relations Act 1969

The Respondent submits that the Complainant was continuously walking off the job and taking unauthorised leave and therefore he had no option but to put him on a low priority route.

CA-00026255-003 Redundancy Payments Act 1967

The Complainant is still in the employment of the Respondent and no redundancy situation as defined in the Act has occurred.

CA-00026255-001 Payment of Wages Act 1991

Due to a dispute between the employer and employee regarding a change in his rounds, a stand off situation emerged where the Complainant insisted he would do his normal round and the Respondent directed that he do the alternative round. In any event, I accept the Complainant’s evidence that on at least three occasions in late December and January he presented for work and no work was given to him. In the circumstances where the Respondent failed to pay his wages for the days he presented for work, I find his complaint to be in part well founded. I note he did not work the full weeks claimed and I have therefore decided that the wages properly payable were in the amount of €210, being the equivalent of 3 days pay. I find the complaint in part well founded and I require the Respondent to pay to the Complainant the sum of €210.

CA-00026255-002 Industrial Relations Act 1969

I find that the Complainant secured another position with the fire service in late 2016. I note the Respondent’s difficulties with him absenting him from the rounds and the potential affect this had on the business.   I find it was perfectly reasonable for the Respondent to offer the Complainant an alternative round, not an unreasonable distance from his usual round. The Complainant acted unreasonably in insisting that he would only do his usual round. I recommend that in order to resolve this long standing dispute, the Complainant agrees to take on the new route, and the Respondent offers him a small sum in compensation in the order of €500.

CA-00026255-003 Redundancy Payments Act 1967

The definition of redundancy as contained in section 7 of the Act is that an employee who is dismissed shall be taken as dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to

“the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed…”

In this instant case, the definition of redundancy has not been met and I therefore find the complaint to be not well founded.