Complainant

Respondent

Anonymised Parties

A Driver

Fuel and Builders providers

Act

Complaint Reference No.

Date of Receipt

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

CA-00031503-001

10/10/2019

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

CA-00031503-002

10/10/2019

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-00031503-003

10/10/2019

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

CA-00031503-004

10/10/2019

The following is a summary of the Complainant’s evidence.

The Complainant claims that he was constructively dismissed by the Respondent as of 7 August 2019. He was a driver with the Respondent from 31 August 2016 working 39 hours per week and was paid €683.75 gross per week.

The Complainant said that he worked for the Respondent for almost three years without a blemish on his record. There was never a question about his capability or performance. However, due to a series of events which occurred in July 2017 the working relationship changed for the worst. He said there was an argument between him and Mr. A, the owner, in relation to delivery times recorded by the Complainant on delivery dockets for deliveries he had carried out that morning. Mr. A disputed the times recorded and accused him of falsifying the records. He said that the discussion got heated and the Complainant said if Mr. A did not trust his employees, he should put trackers in his trucks.

The Complainant said at this time the premises was undergoing a modification resulting in a new modern CCTV system being fitted. The Complainant said Mr. A made several comments while monitoring the CCTV system to him about watching him using some of the machinery in an inappropriate manner and outside manufacturing specifications. He said that Mr. A’s use of the CCTV to monitor staff’s movements extended to him checking the CCTV while he was on holiday. The staff were never informed that the CCTV system was going to be used to monitor their every move and be used by the Respondent in such an invasive way. The Complainant said that he informed his employer that the misuse of the system to monitor staff during their working hours and off site was inappropriate and he could be prosecuted for it and that he would need to employ an unbiased third party to monitor the system if his intention was to use it 24/7 to check on his employees.

The Complainant said in August 2018 he approached Mr. B, Director and told him of his concerns about the overloading and improper and unsafe loading of the truck he was driving. He was very concerned about the consequences for him if he was involved in an accident that the overloading and unsafe loading would reflect badly on him and cause him to lose his license as the responsibility for the truck and the load is the drivers while on the road. The Complainant said that he was so concerned about the practice and its potential to cause a serious accident that he considered whether it would be best if he left his employment. He inquired what notice he would have to give in leaving his employment and Mr. B said he would check it out.

The Complainant said Mr. A approached him and said he did not want him to leave, where the Complainant again reiterated his concerns around the overloading and improper loading of the trucks and the Yard Manager’s comment that “once the trucks were out of the yard it was the driver’s problem and he did not care.” Mr. A said he would have a word with his Yard Manager. He also told him to think about whether he wanted to leave or not and remarked that “drivers are a dime a dozen”.

The Complainant said he is very safety conscious and was referred to by Mr. A as “my safety guy”. The Complainant said there were a number of unsafe work practices giving rise to concern and the Complainant approached Mr. A about those concerns. He said he raised an issue about a defective forklift and improper and unsafe practices contrary to Health and Safety guidelines. The Complainant said that Mr. A failed to act on the advice he had given him.

The Complainant said he was not afforded proper rest breaks. The breakdown for a three-month period from 4 May 2019 to the 23 July 2019 of readings from the Tachograph clearly illustrated the breaches of both the Organisation of Working Time Act 1997 and EC Regulation 561/2006. He said there was also the practice of driving without the Digital Tachograph Card being inserted into the Tachograph Machine in the truck for at least two days consecutively. This is all in breach of the EU and Irish Driving Standards Regulations. The Complainant said he advised his employers that they should employ a part time driver three days a week or Mr. B could drive the truck himself to stop this practice.

On 7 August 2019, the Complainant said he left the yard to travel a distance of 30 miles taking into consideration the meandering route of the delivery drops that day. The Tachograph Machine informed him that he would have insufficient driving time on route without taking a break. He drove to a petrol station approximately one kilometre from the depot and proceeded to take his 15-minute break before setting out again to complete the deliveries. The Complainant said that he had arrived at work at 7.30am that morning and started work at 7.50am. He said that he parked at the petrol station close by to the Depot at approximately 11.45am and parked up the truck and removed the key and locked the truck. He purchased food and drink and returned to the truck to consume them. On entering the truck, the Tachograph machine informed him that he had 8 minutes remaining of his rest break. As he started to eat, he received a phone call from Mr. A who told him that he knows where he is, that the Tracker in his truck was telling him that the truck is switched on, to turn it off and “stop wasting his diesel”.

The Complainant said this encounter left him feeling belittled and humiliated and he decided that the behaviour was totally unacceptable. He said that he completed his round of deliveries out of loyalty to the customers waiting on their orders and then returned to the yard. He parked up the truck and took his belongings. He said that he filed his delivery dockets and filled out his time sheet for the day.

The Complainant said he handed Mr. A the keys to the gate and the truck and informed him that he felt he could no longer work under the conditions imposed by Mr. A and that he was finished.

The Legal submissions.

The Complainant claims that the conduct of the employer in this case falls far short of what would be expected of a reasonable employer and was in fact so unreasonable that the Complainant was left with no option other than to resign after 3 years of good and faithful service. He said that every contract of employment contains an implied duty that neither employer nor employee will act so as to breach the duty of mutual trust and confidence that exists between them without good reason. He said that his employer breached that trust.

The Complainant said his resignation arose as a consequence of the Respondent’s actions and indeed inactions which were so unreasonable as to lead him to believe that the Respondent no longer intended to be bound by one or more of the essential terms of the contract of employment. He cited the legal test in respect of constructive dismissal as provided by the UK court of appeal in Western Excavating (ECC) Ltd [1978] IRLR 27.

The Complainant said in Waltons & Morse v Dorrington (1997) IRLR 488 it was held that the employer was in breach of an implied term in the contract of employment as the employer would “provide and monitor for the employee, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of the contracted duties.” He said the working environment in the Respondent’s was far from suitable in that is was intimidating and dangerous work practices were the order of the day.

The Complainant said that the Respondent not only did nothing to try to resolve his concerns but put pressure on him daily to breach Health and Safety regulations and his entitlements to proper rest breaks under the Organisation of Working Time Act and the EU Regulations on Drivers hours.

The Complainant cited Berber v Dunnes Stores [2009] E.L.R 61 and said that the Respondent has a duty of care to provide a safe place of work. Safe from intimidation, harassment, bullying and degrading treatment. He said the Respondent failed to provide a safe place of work for him and ignored his genuine concerns about work practices in his employment. This failure constitutes conduct which falls short of what a reasonable and prudent employer would have done in the circumstances. These failures left him with no option other than to resign his position with the Respondent.

The following is a summary of the Respondent’s evidence.

The Respondent referred to the opening paragraph of the Complainant's submission, where he asserts that the Respondent is in breach of Section 1 (b) of the Unfair Dismissal Acts for constructive dismissal on 7 August 2019. The Respondent said that the Complainant felt that because of its actions, he decided to terminate his contract of employment, claiming that he had no other alternative but to resign. The Respondent said that the burden of proof in respect of constructive dismissal requires him to prove that his resignation was not voluntary. The Respondent claims that he has not established that.

In relation to the issues raised in July 2017, the Respondent said that Mr. A confronted the Complainant regarding delivery times recorded by him on delivery dockets for deliveries he had carried out. The Respondent confirms that this conversation did take place, but that it could not be categorised as an "argument". The Respondent said that this issue was addressed but to say that the conversation "got heated" or that the Complainant was on the receiving end of a "verbal attack" is completely false.

In relation to the CCTV on the work premises; the Respondent said that a new modern CCTV system was fitted when the premises, yard and shop were undergoing a modification. The Respondent said that the old shop had a CCTV system also. At this time, the Respondent, through the use of CCTV footage, had noticed the that Complainant used his machinery in a way that was unsafe. The Respondent said the Complainant was employed as a driver and was not authorised to use machinery around the yard, even in circumstances where the Complainant was intending to make the area tidier as part of general housekeeping. It is also submitted by the Complainant that the Respondent used the CCTV system to "monitor staff movements". The Respondent stresses that this is completely false. It said that CCTV is necessary for Health and Safety and Security reasons. It is standard practice at any business premises that has a shop, yard and operates heavy machinery that a CCTV system be put in place. Furthermore, the Respondent said the Complainant objected to the use of CCTV and suggested that it "employ an unbiased third party to monitor the system" is completely unreasonable and outside the Complainant’s, a driver, remit to suggest same. It was not in his job description to suggest how the Respondent should operate his CCTV system for his business.

In relation to the alleged unsafe work practices the Respondent said that no formal claim has been made by the Complainant under the Safety, Health and Welfare at Work Act 2005. The Respondent said in August 2018, it is submitted by the Complainant that he approached Mr. B regarding the overloading of trucks. It is further submitted that this concern led the Complainant to consider his position in the company. As a result, he asked Mr. B what notice he would have to give to leave his employment. The Respondent confirms that this query was conveyed by him to Mr B and that he had informed the Complainant that two weeks' notice was required. Notwithstanding this, the Complainant decided to leave without giving any notice, but returned to work again four days later. It had no problem with him and allowed him back.

The Respondent also expressed its wish for the Complainant to stay and spoke with his Yard Manager in relation to a safety concern the Complainant raised once. However, the Respondent did not, in expressing a wish for the Complainant to stay, remark that "drivers are a dime a dozen" as claimed in the Complainant's submission. It said that is clear that it was the Complainant that was acting unreasonable at all times during this period and not the Respondent.

With regard to rest periods, the Respondent said that the Complainant outlines in his submission that "he was not afforded proper rest breaks" during his term of employment. This is untrue and the tachograph machines in each of the Respondent's trucks can verify this.

All of the Respondent's trucks are fitted with a tachograph machine. These machines work by the use of a Driver Card. In the Complainant's submission, it is outlined that the Complainant had "to put the truck into rest mode whilst carrying out other work" and that he was not afforded proper rest breaks as a result. The Respondent claims that the tachograph machine records not only driving, but "other work" also. Consequently, this would not have adversely affected the Complainant's time recording regarding rest periods.

The Respondent confirmed and verified that the Tachograph machine in all his trucks were in proper working order during this time period. The Respondent presented a tachograph expert to give evidence in respect of the tachograph on the day of the hearing. He had prepared and presented his report from the reading of the Tachograph and his analysis thereof.

The Respondent said the Complainant further alleges that there was "the practice of driving without the Digital Tachograph Card being inserted into the Tachograph machine in the truck for at least 2 days consecutively". It is submitted that it is the sole responsibility of the driver of a vehicle to insert their own Driver Card into the vehicle before beginning work. If this had been done correctly every day, it would have been indicated automatically when to take a rest period.

In relation to the Complainant’s resignation on 7 August 2019, he outlined that he arrived at work at 7.30am and began work at 7.50am and that he left the yard for his delivery, a distance of 30 miles with the truck fully loaded at 11.40am. The Respondent said that the business start time is 8.00am. The Respondent noted that the Complainant further submitted that five minutes later he parked up at a nearby petrol station for his 15-minute break and that he only had 8 minutes left for lunch when he returned to the truck after buying food in the garage when he received a phone call from Mr. A. The Respondent said Mr. A was on his way to a scheduled dental appointment that morning, when he passed the garage where the Complainant had parked up at. The Respondent was returning to his work premises 50 minutes later when he saw that the Complainant's truck was still parked up outside the garage. The Respondent said when Mr. A got back to his work premises, he checked the GPS system that was connected to the Complainant's truck. He observed that the Complainant had left the truck running all the time he was parked up in order to clock up driving time and therefore he called him and raised this with him.

The Respondent said after the phone call, the Complainant continued on his journey to do three deliveries. The Respondent said this took the Complainant three and a half hours to complete and it could have been completed in a significantly lesser amount of time. The Respondent said that when the Complainant returned to the yard that evening, he handed the keys to the premises, the keys to the truck and his bag of work clothes to the Respondent and said that "he was finished". The Respondent said that this was the second time that the Complainant finished up working with the Respondent without giving any notice.

Legal submissions

The Respondent said that it is clear that the burden of proof for constructive dismissal has not been discharged by the Complainant in this matter. At all times, the Respondent has been reasonable in his interactions with the Complainant and it cannot be said that the Respondent's behaviour breached the relationship of trust and confidence between it and the Complainant.

In relation to the Respondent’s standard of Health and Safety practices it respected the Complainant's concerns and discussed them with the Yard Manager and Mr B. The Respondent confirms that it did hold the Complainant in high regard when it came to safety concerns. However, his role in the company was as a Driver and not a Health and Safety Officer and there is no formal complaint under the Safety, Health and Welfare at Work Act 2005.

The Respondent said it is clear that the second test for constructive dismissal had not been satisfied by the Complainant. The Complainant resigned without giving any notice to the Respondent in August 2018. This happened in light of the fact that the Complainant already knew the notice period was a period of 2 weeks. Taking into account his most recent resignation on 7 August 2019, this is the second time that the Complainant has impulsively resigned without giving any notice to the Respondent. It is clear that the Complainant did not exhaust all internal measures before making the decision to resign on both occasions and it is clear from this behaviour that it was the Complainant who has acted unreasonable in his interactions with the Respondent.

CA-00031503-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Relevant Law

Section 1 of the Unfair dismissal act defines “dismissal”, in relation to an employee, means—

“(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The term “constructive dismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition, Section 1(b) of the Act which provides that:

In order to rely upon the provisions of Section 1(b) the Complainant must establish, in the first instance, that there was a termination of his contract of employment. It was not in dispute that the Complainant resigned from his position as of 7 August 2019.

As the Complainant is claiming constructive dismissal, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating his employment.

The appropriate legal test in respect of constructive dismissal was provided by the UK Court of Appeal in the case of Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two tests, often referred to as the ‘contract test’ and the ‘reasonableness test’. It summarised the ‘contract test’ as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.” The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.”

According to the Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61, it said that “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

The question which I must decide in the present case is whether, because of the conduct of the Respondent, the Complainant was entitled to terminate his contract of employment.

The Complainant is claiming that he was constructively dismissed from his position as a driver with the Respondent following a series of events where he had an argument with the owner over allegedly falsifying records, reporting poor practice and health and safety concerns, and ultimately being monitored while he worked. He said he just could not take it any longer and had to leave.

The Respondent disputes the claim of constructive dismissal. It claims that the work environment was pretty good, it presented co-workers as witnesses at the hearing to corroborate that, and said that when problems arose, they were addressed, such as break down to machinery and systems. I know the first issue raised by the Complainant was a historic grievance from two years previously, where he left the company but soon returned. I note that he claims that he is relied upon by the Respondent – he was the “safety guy” and Mr. A asked him to stay but told him if he left that “drivers are dime a dozen”. I see a contradiction here.

The Complainant claims on the one hand the overuse of the CCTV surveillance, a constant monitoring of employee’s, whereas, he also said he suggested to the Respondent to put trackers on the trucks.

The Respondent said that there was no heighten level of surveillance of employees, the business has a CCTV system. That it was used to protect the business and staff. It had asked the Complainant not to use certain machinery in the yard as he was not licenced to use it, and nothing more.

In relation to the final incident on 7 August that led to the Complainant handing back the keys and leaving for good. I note Mr. A’s evidence that there was no major flare up and it was a matter of him simply questioning his driver about the Respondent’s business, he was looking after his business interests.

The Complainant’s and the Respondent’s evidence differ as to their view of the working environment. I accept that the Complainant had been reprimanded for issues in the past with record keeping. I see that he left soon afterwards but swiftly returned. I note he was critical of broken machinery and unsafe practices on the yard and overburdened trucks and he brought these to the Respondent’s attention. I would expect that he would do this, and I expect that the Respondent would expect this from its employees as part of their normal working day. However, the Complainant has not convinced me that this was out of the unusual, that there were major operational, health and safety concerns or that all this was having a major impact on his life working there. There is a litany of issues raised in the Complainant’s submission in relation to breaches to driver regulations, topographic breaches and malpractice, and health and safety concerns, which do not form part of the original complaint brought to the WRC, and many of which do not form part of my remit as a WRC adjudication officer.

I note the Complainant’s evidence of his last day at work on 7 August 2019 and what he deems as the final straw. I am satisfied that the matter is trivial. The issue is what I would expect happens in the normality of the working environment routinely. The Respondent sought an explanation as to where he was with the truck switched on. There is no evidence of an oppressive working environment, where he was forced out rather than having the matter dealt with. I have heard all the evidence and I am satisfied that the Complainant did not like being questioned and he handed in his keys and resigned. I prefer the Respondent’s evidence in this matter.

It is well established that in advancing a claim for constructive dismissal an employee is required to show that they had no option in the circumstances of their employment other than to terminate their employment. The notion places a very high burden of proof on an employee to demonstrate that they acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve his grievance with his employers.

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd [UD720/2006] that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case … In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In accordance with the established principles in constructive dismissal cases, I am satisfied that there was an obligation on the Complainant to activate the internal procedures before taking the step to resign from his employment. I have not found that the actions of the Respondent were so intolerable that the Complainant simply had to remove himself from his employment.

Having considered the totality of the evidence adduced in relation to this matter, I find from the facts of the case that the Complainant was not entitled to resign from his employment in circumstances amounting to a breach of his contract of employment. This complaint is not well founded and accordingly the complaint fails.

CA-00031503-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

This complaint is in relation to section 12 of the Organisation of Working Time Act, 1997.

The Complainant claims that he is a mobile worker and was not afforded rest breaks.

I note that the Complainant has also lodged a complaint 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.

Regulation 6 of S.I. No. 817/2004 - Organisation of Working Time (Inclusion of Transport Activities) Regulations 2004, states that “Mobile Workers are exempted from the application of sections 11, 12, 13 and 16 of [Organisation of Working Time Act, 1997].”

Therefore, the complaint is not well founded and fails.

CA-00031503-003 - 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

Breaks from work

8. (1) No person performing mobile road transport activities shall work for more than 6 consecutive hours without a break.

(2) Where the working time of a person performing mobile road transport activities exceeds 6 consecutive hours but does not exceed 9 consecutive hours, the person shall be entitled to a break lasting at least 30 minutes interrupting that time.

(3) Where the working time of a person performing mobile road transport activities exceeds 9 consecutive hours, the person shall be entitled to a break lasting at least 45 minutes interrupting that time.

(4) Each break may be made up of separate periods of not less than 15 minutes each

(5) An employer shall ensure that this Regulation is complied with in the case of each mobile worker employed by him or her.

12. Obligations on employer

An employer shall do each of the following in relation to each mobile worker employed by him or her:

(a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability;

(b) request from the mobile worker details of any time worked by that worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation;

(c) include time worked for another employer in the calculation of the mobile worker's working time;

(d) keep records which are adequate to show that these Regulations are being complied with;

(e) retain records referred to in this Regulation for at least 3 years after the end of the period covered by those records;

(f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker;

(g) provide to an enforcement officer such records relating to the mobile worker or other mobile workers as the officer may require;

(h) provide to the mobile worker or to an enforcement officer copies of such documentary evidence in the employer's possession as may be requested by the worker or officer in relation to records provided to him or her in accordance with subparagraph (f) or (g).

The Complainant said that he regularly failed to get his rest periods and that can be seen from the tachograph readings. He produced a printout and presented it in evidence of what he claims were the infringements.

The Respondent present a detailed report from a Tachograph Analysis Expert, who claims that he was asked to analyse the tachograph installed in the vehicle used by the Complainant and to report on his finding. The Tachograph Analysis Expert said that the Drivers drop offs are all local in nature and usually not long distance or for long periods. The expert analysis reported that he ran his analysis from 4 May 2019 to 26 July 2019, the period referred to by the Complainant where he alleges there were breaches of the Working Time Directive. The Report said there was no breach of the Directive and the longest recorded day in that period was 4 hours and 42 minutes and shows 47 minutes break was recorded.

The expert witness was presented at the hearing to answer questions on his report.

On consideration of the entire evidence I note from the Complainant’s own evidence that he was informed to work or take a break by the tachograph. The central plank of his case is that he was taking his break when Mr. A called him and they had a conversation on whether the truck was turned off or on. I note that he told Mr. A he is on his first break and I would be satisfied from his evidence he knows his entitlements here.

On the balance of probabilities, I prefer the Respondent’s evidence here and find there was no breach 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-00031503-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Relevant Law

Section 1 of the Act states,

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

(b) any sum payable to the employee upon the termination by the employer of his contract of employment without his having given to the employee the appropriate prior notice of the termination, being a sum paid in lieu of the giving of such notice:

Section 5 -

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

I note here that there is a difference of opinion regarding money owning. The Respondent said that there was money owning when the Complainant left and Mr. A had been in contact with him and it was agreed to be deducted from the final pay cheque. The Complainant is claiming that this is an illegal deduction. He claims that he never gave permission for this deduction.

I note that Section 5(2) of the Act sets out the conditions according to which an employer may make a deduction from an employee’s wages:

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

3(a) An employer shall not receive a payment from an employee in respect of a matter referred to in subsection (2) unless, if the payment were a deduction, it would comply with that subsection.

(b) Where an employer receives a payment in accordance with paragraph (a) he shall forthwith give a receipt for the payment to the employee.

[…]

In the instant case, the evidence is not compelling that there was any agreement in place that satisfied the conditions in Section 5(2) of the Act. The legislation clearly stipulates that a deduction must be “before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction”.

I am satisfied that Respondent making a deduction from the Complainant’s final pay is a contravention of Section 5 of the Payment of Wages Act, 1991, and is an unlawful deduction made from his wage.

Pursuant to Section 6 of the said 1991 Act, I can direct that the Respondent pays to the Complainant €640 (six hundred and forty euro).

CA-00031503-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Complaint is not well founded and fails.

CA-00031503-002 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complaint is not well founded and fails.

CA-00031503-003 - 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

The Complaint is not well founded and fails.

CA-00031503-004 - Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

The Complaint is well founded, and I order the Respondent to pay €640 (six hundred and forty euro).