Complainant

Respondent

Anonymised Parties

Warehouse Operative

Grocery distributor

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-00029721-001

16/07/2019

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

CA-00029721-002

16/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029721-003

16/07/2019

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

CA-00029722-001

16/07/2019

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

CA-00029722-002

16/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029722-003

16/07/2019

The complainant states that the respondent made an unlawful deduction from his wages, unfairly dismissed him and failed to pay him his notice entitlements.

The complainant commenced employment as a warehouse operative on the1 February 2017.

He was dismissed on 29 January 2019.

He worked 40 hours a week. His hourly rate was €10.60.

He submitted his complaints to the WRC on 16 July 2019.

CA-00029721-001. Complaint under section 6 of the Payment of Wages Act, 1991

The complainant works as a general operative in the respondent’s grocery distribution warehouse. The complainant contends that the respondent made an unlawful deduction on 29 January 2019 of €26.50 per week, which equals the 2.5 hours extra hours he had to work each week and for which he was not paid. This constitutes the wrongful deduction. The complainant states that the reason he worked 2. 5 extra hours per week was that warehouse staff were expected to pick 155 items per hour and in order to achieve this figure he had to complete 30 extra minutes per day of unpaid work to meet this total. The complainant explained that 155 items equalled 100%. He normally picked 322 boxes per hour which was 57% over target and eligible for a bonus. But because the 15 minutes of the two break periods are not factored in, and after he returns from the two 15 minute breaks, his performance drops to 125 % and depresses his bonus. He should be able to discount the two break periods of 15 minutes to maintain his eligibility for a bonus based on a productivity rate of 157%.

The complainant did not state the total amount owed to him. He had attempted to get these monies from the respondent to no avail.

CA-00029721-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant states that he was unfairly dismissed because the system under which he was expected to work- by which he means the standard operating procedures, the amount of items to be selected per hour, the bonus system and the policy on not clocking out for breaks was not properly explained to him.

A number of colleagues in the workplace were unhappy with the bonus system and signed a letter to this effect on 25 June 2018.

He appealed the decision to dismiss him, but his appeal was not upheld.

He is seeking compensation.

The complainant has been on illness benefit from 2 February 2019 and has not been in a position to apply for jobs.

CA-00029721-003. Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

The complainant withdrew this complaint.

CA-00029721-001. Complaint under section 6 of the Payment of Wages Act, 1991.

The respondent denies that they made an unlawful deduction from the complainant’s wages. The complainant never processed such a complaint while employed by the respondent.

Breaks are not paid.

The date of the alleged wrongful deduction is 29 January 2019. The complainant lodged his complaint on the 16 July 2019. The act only permits redress for unlawful deduction in the 6 months prior to lodging the complaint. This means that only deductions – and it is disputed that any unlawful deductions were made- occurring after 17 January 2019 can come into the frame.

CA-00029721-002.Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The respondent denies that the complainant was unfairly dismissed.

The complainant is employed as a general operative in the respondent’s warehouse, picking and loading items onto lorries for onward distribution to stores

The respondent employs British Standard Institution model- a type of time and motion test for evaluating the amount of items which can be picked and loaded per hour. The figure arrived at using this model is 155 items per hour. Amounts over that attract a bonus. Periods spent on breaks, for example the 30-minute break are added to the 8-hour shift to see if the 155 items have been picked and loaded in the 8.5 hours. Staff are not allowed clock off for break periods as this would have the effect of inflating the number of items picked and providing a false estimate for the purposes of estimating any bonus due.

The complainant commenced employment with the respondent in February 2017. Within a few months he had to be repeatedly reminded to use the correct procedures concerning picking and loading items. In addition, the respondent operates a system whereby employees do not sign off when going for breaks. The 2 break periods amounting to 30 minutes a day are factored into the unit of time by which the number of items picked and loaded is measured for the purposes of meeting the requisite number of 155 and any entitlement to a bonus which might arise..

Since October 2017, the respondent had taken the complainant through a disciplinary procedure for repeatedly refusing to comply with the instruction not to clock off at breaks and for his failure to comply with standard operating procedures. The complainant disagreed with the respondent’s methods.

The complainant received a written warning in October 2017 for failing to follow SOP and for non – compliance with clocking in and out and attendance issues. The written warning was to last 12 months. This sanction was intended to serve as a reminder to the complainant of the necessity of compliance with the respondent’s procedures. The complainant appealed the warning. The warning was upheld. Over the succeeding months the respondent engaged informally with the complainant to encourage an improvement in his conduct. The Industrial Engineer and the Operations Manager met with the complainant in May, explained that an allowance was made for the breaks in the calculation of goods picked against time and explained the processes to him. The Operations Manager gave evidence of having explained the processes to the complainant.

In June 2018 the complainant was invited to another disciplinary meeting for unaccounted time, clocking out, failure to follow training and SOP procedures in relation to using correct ID and labels to avoid sending the wrong consignment of goods to the wrong store.

At the meeting the complainant confirmed that he was aware of the clocking in and out procedures but did not agree with them. He was issued with a final written warning on 25 June. He did not appeal this sanction. The letter of sanction issued by his supervisor observed that

“I can only conclude that you carried out these actions to increase your BSI performance figures higher than they would have been had you conformed with the SOP, the way you were trained and your manager’s instructions.”

The complainant was told in this letter that rerepeated breaches would be seen as gross misconduct for which the penalty could be dismissal.

The complainant continued to disregard instructions. He was invited to another disciplinary meeting on 25 January 2019, where the same charges levelled at him in June 2018 were put to him. At that meeting the complainant confirmed that the respondent’s records of him signing off, plus his failure to comply with health and safety requirements by driving a forklift down a one-way aisle in the wrong direction were correct. He stated that he would continue to clock out contrary to instructions as he did not agree with the system.

The complainant was summarily dismissed on 22 January. He failed to comply with SOP procedures, the policy on clocking in and out, he misrepresented his performance ( his productivity), and this inflated his bonus payments to a false level beyond what he was owed.. He also clocked out for minutes and periods in excess of his permitted breaks, again adding to his bonus.

The complainant appealed the dismissal to the respondent’s Operation s Manager. The appeal was heard on 15 March. His appeal was not upheld.

The respondent’s disciplinary procedure complied with the requirements set out in S.I 146/ 2000.

He was dismissed for gross misconduct.

CA-00029721-003. Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

This complaint was withdrawn.

CA-00029721-001. Complaint under section 6 of the Payment of Wages Act, 1991.

The question for determination is whether the respondent’s failure to pay the complainant the amount of €25.60 per week, due for the 2.5 extra hours which the complainant states he had to work each week contravened section 5(1)(2) of the Act of 1991. It prohibits a deduction unless the

“deduction is of an amount that is fair and reasonable having regard to all the circumstances”.

Section   5 (6) of the Act of 1991 goes on to identify a deduction as follows:

“the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act)”,

In order for a unlawful deduction to occur, the wages in contention have to be properly payable. The basis for the complainant’s assertion that the payment of 2.5 extra hours per week is properly payable is his rejection of the respondent’s assessment that 155 items can be picked and loaded per hour as opposed to his contention that he has to work an extra 30 minutes each day to achieve that target. Insofar as the complainant made out his case, he also disputes the exclusion of the 30-minute break which he states depresses the number of items which are picked and affects his bonus. The items picked and loaded are measured over 8.5 hours as opposed to 8 eight hour resulting in a reduced bonus.

The complainant is contracted is to work 40 hours, not 42.5 hours per week. The contract excludes breaks as working time.

The complainant has no contractual entitlement to claim payment for a further 30 mins per day. Neither did the complainant explain how the time and motion testing of picking and loading was unfair other than for his representative to describe it as imperfect.

Aside from the fact that my jurisdiction is confined to deductions made between the 17-29 January 2019, I find that the deduction of €25.60 extra per week claimed by the complainant is not properly payable. Therefore an unlawful deduction could not have occurred.

For the reasons stated above, I do not find this complainant to be well founded.

CA-00029721-002.

Complaint under Section 8 of the Unfair Dismissals Act, 1977.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

“subject to the provisions of this section the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless having regard to all the circumstances there were substantial grounds justifying the dismissal “.

Section 6(4) of the Act indicates what type of substantial grounds justify a dismissal and states

“…………. the dismissal of an employee shall be deemed for the purposes of the Act, not to be an unfair dismissal if it results wholly or mainly from one of the following

a) ……………..

b)     the conduct of the employee”

The respondent contends that the complainant’s conduct merited the sanction of dismissal. The conduct which led the respondent to conclude that the dismissal was not unfair was the complainant’s repeated refusal to comply with clocking in and out procedures the consequences of which led to a false reading of his productivity and inflated bonuses to which he was not entitled. He achieved these inflated bonuses by clocking out in contravention of the respondent’s rules. The complainant accepts that he refused to comply with the system as he did not agree with the methods used to identify productivity and bonuses.

In Danceglen Ltd T/A Dunboyne Castle & Spa v Fernando   Riberio, UDD1839, the Labour Court stated

“It is not for the Court to substitute its view for that of the Respondent in this case. It is rather for the Court to determine whether the decision to dismiss was within the range of responses of a reasonable employer in the same circumstances.

The Court found that the respondent’s decision to dismiss the appellant following the conduct of an investigation and disciplinary process into a breach of internet security which the respondent viewed as a very serious breachwas

” within the range of responses of a reasonable employer to the conduct of the appellant and was not unfair within the meaning of the Act.”

Section 5 of the Unfair Dismissals (Amendment) Act 1993 allows for regard to be had to the conduct of the employer in determining if a dismissal is unfair.

Did the employer behave reasonably and fairly?

In the instant case the complainant had repeatedly breached the respondent’s procedures. He was presented with all the evidence grounding the decision to dismiss, the right to be represented, the right of appeal, the right to a fair hearing and had been advised of the consequences of repeated infringements in June 2018. The respondent complied with their own disciplinary procedures.

The disciplinary procedure expressly provides for dismissal in cases of gross misconduct. Examples of gross misconduct cited in the respondent’s procedure include ”misrepresentation of any information in relation to … performance of duties”   and “failure to or refusal to perform work assigned or to obey the reasonable instructions of a manager”

It is not my role to consider the fairness of the testing model used to determine productivity. Neither is it my role to assess the consequential fairness of the bonus system. If either was unfair, the complainant had the option to use the grievance procedure to demonstrate its unfairness or inadequacy and if the respondent failed to accept that case, to refer the matter onwards to an external body.

I do not accept the complainant’s contention that the respondent failed to explain the procedures to him. He might have disagreed with the respondent’s explanation but that is another matter.

Based on the evidence, I find that the decision to dismiss was

” within the range of responses of a reasonable employer to the conduct of the appellant and was not unfair within the meaning of the Act.”

I do not find that the complainant was unfairly dismissed.

CA-00029721-003. Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

This complaint was withdrawn.

Complaints CA 00029722-001, 002 and 003 are duplicates of CA 29721-001,002 and 003

CA-00029721-001. Complaint under section 6 of the Payment of Wages Act, 1991.

I do not find this complaint to be well founded.

CA-00029721-002.

Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I do not find that the complainant was unfairly dismissed.

CA-00029721-003. Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

This complaint was withdrawn.

Repeated refusal to comply with respondent’s procedures.