Complainant

Respondent

Anonymised Parties

Driver

Agricultural Supplier

Representatives

Self-Represented

Self-Represented

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-00029797-002

21/07/2019

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

CA-00029797-007

21/07/2019

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

CA-00029797-009

21/07/2019

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

CA-00029797-010

21/07/2019

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

CA-00029797-011

21/07/2019

The Complainant commenced employment with the Respondent on 30th March 2006. At all times the Complainant was employed as a driver. On 27th May 2019, the Complaint gave notice of resignation, with her employment duly terminating on 31st May 2019.

On 21st July 2019, the Complaint lodged complaints under the Payment of Wages Act, the Terms of Employment (Information) Act and two disputes under the Industrial Relations Acts with the Commission. On 21st August the Respondent positively confirmed that they wished to engage in the Industrial Relations disputes. Following a number of adjournments, a hearing in relation to all these matters was convened and finalised on 17th February 2020.

At the hearing of this matter, each complaint was dealt with in order of its chronology within the employment. The descriptions and decisions / recommendations below will follow the same format.

The Complaint initially alleged that she did not receive any written terms at the commencement of her employment. When presented with a contract during the hearing, the Complainant accepted that she did sign and receive part of the contract, however she submitted that two pages of the document (being half the document presented) were not included on the date of signature. Further to the same, the Complainant denied that she ever received an employee handbook at any stage of her employment.

The Respondent submitted that the Complaint had a written contract on file. They further submitted that this contract was signed by the Complainant and was provided within the timeframe set out in the Act. Finally, they submitted that this contract bore the stamp of a third-party service that inspected that Respondent approximately six years previous.

While it is agreed that the Complaint received some terms at the commencement of her employment, a dispute has arisen regarding the form of those terms. In this regard, I note that the Complainant initially stated that she received no terms whatsoever, then later conceded that she received partial terms only. Following from the same, it is apparent that the Complainant has misremembered at least some of the detail regarding the presentation of her contract. It should be noted that this is not surprising given that the subject matter of this dispute occurred approximately seven years prior to the hearing. In addition, I am guided by the fact that a third-party body had stamped this contract approximately six years previous, further corroborating the age of the document.

In light of the following points, I find that the whole document was issued to the Complainant at the relevant time. As such I find that the Complaint was not well-founded and the Complainant’s application fails.

The Complainant alleged that her payslips were incorrectly calculated for a substantial period of her employment. She stated that this primarily occurred between the years of 2014 to 2018. In July of 2018, the Complaint contracted a member of management in relation to this issue but never received a satisfactory response. Following this complaint, the calculations contained in the payslips did improve somewhat but still contained some errors.

The relevant member of management of the Respondent accepted that the Complainant contacted him regarding incorrect calculations contained in her payslips. Following the same, the manager requested that the payroll accountant conduct a through review of the same. Following this review, it was determined that all payslips were in order and no errors were found in the calculations. The member of management contacted the Complainant by telephone to confirm the same, after which he considered the matter to be concluded.

The investigation of this dispute was hampered somewhat by the fact that it related to matters that arose between two and six years ago. Notwithstanding the same, it is clear that the Complainant made a complaint to the Respondent in relation to a significant matter. In this regard, I accept that the Respondent took this matter seriously and conducted a through review in relation to the same. Indeed, by the Complainant’s own reckoning the issue did improve after this review.

However, I find that the manner in which the manner in which the outcome of the review was communicated to be somewhat lacking. Rather than simply informing the Complainant that there no errors had occurred, and she was incorrect in her claim, the Respondent should have met with her and explained their findings. This would have prevented any further confusion in relation to the matter and would have resolved the issue at the relevant time. In light of the foregoing, I find in favour of the Complainant in respect this part of the dispute.

The Complainant alleged that she spoken to in an inappropriate manner numerous times throughout her employment.

In particular, the Complaint referred to an incident in or around 2014 where she was attending a social event. During this event the Complainant received a call from a member of management of the Respondent (MR). During this call, MR asked her to cover a shift for an employee who was assigned other tasks. By response, the Complainant explained that as she was not due to work the following day she had consumed alcohol. At this point MR stated that the Complainant was “not fit for work” in an angry tone.

The Complaint described a further incident that occurred in or around 2014. On that occasion the Complaint had to ask MR for a lift to her vehicle as there was an issue with her work vehicle. Following this request, MR described the Complainant as a “British pig” within her earshot.

Finally, the Complainant described an incident that occurred in 2016. Here the Complainant’s work vehicle was stopped during a journey for a routine inspection. When the Complaint contacted MR to query an issue that had arisen, he again responded in an angry tone and used foul language. As well as finding this personally offensive, the Complainant explained that this caused her embarrassment in front of the inspector.

In answer to a question, the Complainant stated that she brought these issues to a senior member of management. During this conversation she was told that a “word” would be had with the manager in question, however to the Complainant’s knowledge nothing happened in this regard. When asked why she did not engage with the formal written policies in this regard, the Complaint stated that she never received nor had sight of the same.

By response MR categorically denied each of the complaints. He stated that he had no particular memory of the conversations referred to but absolutely denied that he would speak to any of his employees in the manner alleged by the complainant.

Further to the same, the Respondent submitted an extensive bullying and harassment policy. The Respondent submitted that the Complainant should have utilised the same at the relevant time to allow the matters to be investigated. It was submitted that the Complainant’s failure to do so severally hampered the Respondent’s ability to answer the allegations.

The allegations raised by the Complainant are extremely serious in nature and normally would prompt an extensive investigation by a responsible employer. However, as with the other claims, the allegations are somewhat historical in nature and are difficult to resolve numerous years later. These complaints, in particular, relate to an inter-personal conflict with a member of management and as such I am cognisant of his rights in defending the complaints and protecting his own good name.

In this regard it would be unfair to expect the Respondent to the complaint to recall specific conversations that occurred between six and four years previous. I am also cognisant that the Complaint’s contract of employment refers to the former Labour Relations Commission’s procedures for addressing bullying the workplace. These procedures were referred to on the page the Complainant signed and were not engaged with at the relevant time, further hampering the ability of the Respondent to defend the allegations outlined.

In light of the foregoing, I find that it would be inappropriate for me to make any recommendation in relation to the complaints raised. As such, I do not find in favour of the Complainant.

The Complainant alleged that her holiday entitlement was not paid on termination of her employment. She stated that she gave notice on termination of her employment on 27th May 2019. This notice gave the Respondent three weeks’ notice of this termination, with a proposed end date of 17th June. It was proposed by the Complainant that she would work on the 30th and 31st May, with the further 17 days to be taken as annual leave. When that Complaint received her final payslip, these days of annual leave were not included.

The Complainant raised further issues in relation to the non-payment of wages, however it was agreed that these occurred outside the relevant period for the purposes of the Act and were effectively statute barred. As such, these complaints were not pursued.

By response, the Respondent stated that on termination of the Complainant’s employment she had taken more annual leave than her contract allowed and as such was not entitled to any payment on termination of her employment.

In support of this submission, the Respondent submitted numerous payslips from the previous year indicating that the Complainant had taken 25 days’ holidays within the 12 months previous and 10 days’ holidays within the calendar year. Given that the Complainant’s had a contractual entitlement of 20 days of annual leave per calender year, it was submitted that no further annual leave was due to the Complainant on the termination of her employment.

In light of the evidence submitted by the Respondent, I find that the Complainant was not entitled to any payment for annual leave on the termination of her employment. As such I find that the complaint is not well-founded and her application fails.

The Complainant alleged that the sum of €1,386.45 was deducted from her final pay. While the Complainant accepted that she owed the sum of €696.45 in respect of various advances and payments received during her employment, she contested the rest of the deductions. In particular, she denied that she was overpaid for certain days of work that were not completed. The Complaint also submitted that she was not provided with any advance notice of the deductions and that the Respondent did not have a contractual basis for the same.

By response, the Respondent stated that the Complainant received various advances and payments in the course of her employment, and that these were legally deducted from her final pay. These deductions were broken down into four categories; advances received, for which the Complainant accepted that she owed €480 of €670, overpayments of €450, which the Complaint denied in full, damage to a vehicle, for which the Complainant accepted that she owed €96.45 of €146.45 and personal fuel payment of €120, which the Complainant accepted in full. In total the Complainant accepted that of the €1,386.45 deducted, €696.45 was actually owed to the Respondent, while the remaining €690 was disputed.

The Respondent further submitted that the employee handbook contained an extensive overpayment policy and that the Complainant should have been aware of the deductions prior to receiving her final payslip.

The Payment of Wages Act sets out a number of prescriptive steps that must be taken prior to a legal deduction being taken from an employee’s wages.

Amongst these, Section 5(2)(b)(iv) mandates that any deduction from an employee’s wages in respect of an act or omission must be notified and enumerated at least one week in advance of deduction. Furthermore, Section 5(1)(c) provides that an employee must give their prior consent in writing to an employer’s power to make such deductions.

In this regard, I note that while the Complaint received a contract of employment, this contract did not make reference to the employee handbook provided, nor was the handbook expressly signed for at any stage of the Complainant’s employment. Given that this is where the term permitting the deduction is located, the Complaint cannot be said to have provided her prior consent to the deduction. It is also accepted that the deduction was not notified to Complainant in advance.

As a consequence of the foregoing, I find that the Respondent is in breach of the Act and the Complainant’s complaint is well-found.

In relation to redress, Section 6(2) of the Act (as amended) empowers me to award such redress as deemed reasonable in the circumstances, so long as the same does not exceed the amount owed. Given that the Complainant accepted she owed €690.45 to the Respondent, I order to the Respondent to pay the remaining €690.00 to the Complainant.

CA-00029797-009 – Complaint under the Terms of Employment (Information) Act 1994

I find that the Complaint is not well-founded and consequently the Complainant’s application fails.

CA-00029797-010 – Complaint under the Industrial Relations Act 1969

I find in favour of the Complainant and recommend that the Respondent pays the sum of €500 in compensation.

CA-00029797-011 – Complaint under the Industrial Relations Act 1969

I do not find in favour of the Complainant and consequently her application fails.

CA-00029797-002 – Complaint under the Payment of Wages Act 1991

I do not find in favour of the Complainant and consequently her application fails.

CA-00029797-007 – Complaint under the Payment of Wages Act 1991

I find in favour of the Complainant and order the Respondent to pay her the sum of €690.00.

Payment of Wages, Holiday Pay, Historical complaints