Complainant

Respondent

Parties

Ivan  Malovan

McGrath Industrial Waste

Representatives

  self

 Director

Act

Complaint/Reference No.

Date of Receipt

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

CA-00041281-002

26/11/2020

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

CA-00041281-003

26/11/2020

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

CA-00041281-004

26/11/2020

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

CA-00041281-005

26/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00041281-006

26/11/2020

The Complainant worked as a general operative on a waste truck. On the 11th of November 2020 at about 10.00 am the sensor on the bin lift was faulty.  The Complainant had commenced work at 5.00am. This had happened before. The Complainant states that when he complained about this to his manager, he was berated and told that the company had papers and documents to show that they were working.  The Complainant states that he was dismissed for making a complaint about his own safety and that of others. There could be no other reason for the termination. It was a constant problem that the bin lift would stop working and then it created a safety hazard for him and other crew when in traffic.  This fault means that he must work long hours often 47 hours in 4 successive days, creating tiredness and unnecessary work pressure. These conditions are unsafe.

The employer states that the Complainant was not dismissed. Trucks do breakdown based on the robust nature of the work that is involved in collecting waste. However, the Company plans for breakdowns by operating a fleet of replacement trucks. At anytime a backup truck is available to a crew. They also operate a preventative maintenance programme. The employee walked off the job and said that he had enough of breakdowns and stoppages and didn’t want to work with the Company anymore. The Company operates a very robust safety and preventative maintenance programme. The Complainant received safety training where it is clearly stated that the policy of the company is to fix problems and not to operate any equipment when any safety mechanism is faulty or broken. The Company operates to the highest quality and safety standards based on independent accreditation. The Company would not penalise any employee for raising a safety concern.

The complainant alleges that his employment was terminated because he made complaints about the safety hazards of the lift sensor failing and the risk that posed while he and others were in traffic. He also alleges that the company made unlawful deductions and failed to pay him his statutory annual leave entitlement.

The company reply by stating the employee resigned and that all monies due have been paid to him.

The Employee was filling in for another crew member who was absent from work and had been for a number of weeks.

Whether a dismissal or resignation occurred is in dispute between the parties.

What is accepted is that on the morning of the 10th of November 2020 the bin truck developed a fault which meant that the crew needed a replacement.

The driver did not call any witnesses. The adjudicator inquired why that was so and the complainant stated that the employer hadn’t been requested to call witnesses and why should he be required to call witnesses when the employer hadn’t been required to do so.

The adjudicator asked if the driver was available to give evidence and the Employer said yes. The driver stated that the truck had broken down, it had occurred previously, and a backup truck was brought to the crew. The driver stated that when the back up truck arrived, the complainant was frustrated about the frequency of breakdowns and after an exchange with his manager who brought the back up truck, he walked off the job. The Complainant gave the impression that he had enough of the breakdowns and that he was not coming back until they were fixed.  The driver’s account was confirmed as accurate by the Complainant.

The Company provided the following documentation:

1.       A detailed spreadsheet detailing time sheet hours paid, gross hours and net pay.

2.       An employee contract of employment

3.       An induction register signed by the complainant

4.       An induction training record

5.       Signed employee confirmation of safety handbook

6.       A signed document concerning Covid 19 Health and Safety Policy and Risk Assessment

7.       An inspection of records completed by the Workplace Relations Commission dated the 11th of March 2021 that had no adverse findings.

In his submission the Complainant states that while the Company accountant had told him that he was paid everything; however, he held back from providing him with payslip.

Before he could receive an adequate explanation from the accountant on the 13th of November 2020, he was asked to leave the office. He followed up on the 16th of November 2020 with an email about shortfalls in pay and holiday pay. The Director visited him at home to explain that he had been paid.

The Complainant stated that he never received a dismissal letter, notice of termination: “When I went to the office, I asked why no one had called me for work”.

The Complainant queried whether he was paid for week of the 3rd of June 2020 when he was working with another driver

The Complainant alleges that his pay was short by €450 and outstanding holiday pay.

CA-00041281-002:

The Complainant has provided no supporting documentation concerning his claim that he was left short by €450 or his last week of wages. The Company has provided a detailed breakdown of all payments made to the employer since he commenced his employment. There is no evidence to support the complainant’s claim that he was unlawfully deducted €450 and that he worked for 47 weeks and was paid for 46 weeks. The employer produced records to show that in fact he was paid for his last week of employment, with a pay date of 13th of November 2020 and was paid for 20 holidays.

The Complainant has provided no supporting documentation concerning his claim that he was not paid the correct holiday pay. The Company has provided detailed records that do show that the Complainant received his holiday pay.

CA-00041281-003:

The Complainant alleges that he received no notice of termination; this is a matter of dispute as the employer states he voluntarily resigned from his employment. See 005.

CA-00041281-004:

The Complainant alleges that he did not receive his holiday pay; see 002, where the employer has produced records to show that in fact, he was paid his holidays. Therefore, there is no evidence to support the Complainant’s claim.

CA-00041281-005:

The Complainant alleges that he was unfairly dismissed by the respondent employer. However, the fact of dismissal is in dispute.

Section 1 of the Unfair Dismissals Act 1977 as amended defines dismissal as:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(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, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose.

The Employee alleges that his contract was terminated; however, that fact is in dispute.

Redmond on Dismissal Law 3rd Ed, at chapter 22 states:

Much of the hearing time at the Workplace Relations Commission or the Labour Court may be engaged in determining a dispute as to dismissal. As the EAT put it in Devaney v DNT Distribution Company Ltd: 21

‘... where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to bring the contract to an end? In answering this question, what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention. We find, having regard to the relationship that existed between the parties prior to the termination and the claimant’s evidence that [the director of the respondent company] often expressed his feelings in very strong language, that the words uttered by [him] in an angry mood, did not amount to a dismissal and were never intended as such.’

The test, therefore, is objective. 22

A person’s disposition maybe argumentative or vocal. The question that must be asked was the behaviour a heat of the moment outburst and no more than that, based on frustration he walked off the job, or was it more and a clear and unambiguous communication about his intent to leave the job?

The evidence shows that the complainant walked off the job and said that he was done with this job or similar phrase.

In the circumstances was the employee’s action a reasonable response based on a safety concern or about the impact the breakdown had on his working day?

The truck was not in operation and the heated debate occurred when the replacement truck arrived sometime after the breakdown occurred. That frustration was about the breakdown and the frequency of breakdown and how such breakdowns extended the working day. On balance it appears that the frustration arose because of the impact that a breakdown had on the working day, as the work would still have to be done, meaning that an early shift commencing at 5.00am would extend into late afternoon. There is no evidence to support the view that the company operates an unsafe system of work. In fact, the company has obtained several industry leading accreditations relating to quality and safety. The Complainant walked off the job because his working day was being extended arising from the breakdown. The evidence does not show that he was dismissed for raising a complaint about safety.

Whatever about the reason for the Complainant walking off the job, the question still remains, could a reasonable employer take it that the Complainant was in fact resigning, based on objective criteria? On balance the Employee walked off the job that also involved a heated exchange about breakdowns. Was that action based on a rush of emotion and frustration or a considered decision followed through with the act of walking off the job? Was that heated exchange about safety or how the working day was expanded when breakdowns occurred?

A follow up meeting took place in the office on the 13th of November, again a heated discussion arose about alleged shortfalls in pay. At that meeting it was clear that the company believed that the complainant had resigned. The Director of the company met the complainant on the 17th of November to explain how he had been properly paid his wages and holidays, again the discussion was heated.

In this case, it is represented by the employer that the disposition of the complainant appears at times to be excitable and not open to persuasion. Did the employer see this recent incident as an opportunity to end a difficult employment relationship or on the facts did the employee resign?

The employee carries the burden of proof when a dismissal is in dispute to show that a dismissal did in fact occur.  The employee walked off the job, if this was a constructive dismissal case the facts would not support a claim that a fundamental breach of the contract had occurred or that the behaviour of the employer was unreasonable so that the employee had to leave the job.

So, do the acts of the employer when cumulatively assessed prove that what in fact happened was a termination? On balance the complainant has not discharged the burden of proof that what occurred was in fact a dismissal and not a resignation. The facts do show that he walked off the job because of a truck breakdown and how that impacted on the length of the working day. There is no evidence to support the employee’s view that the company operated an unsafe system of work. The Employee has not argued that he lost his temper or made a rash decision. On the contrary that the system of work was unsafe, and he would not return to work until the frequency of breakdowns was fixed. That is something that was unlikely to happen based on the nature of heavy and hard work a refuse bin has to handle. Breakdowns due to the nature of waste collection will occur. Therefore, I conclude that the employee was stating that he no longer wished to work for this company as the frequency of breakdowns unpredictably extended his working day and he no longer wished to work under that condition. On balance I must determine that on the facts the employee had in fact resigned.

CA-00041281-006:

The Complainant alleges that he was penalised for complying with or making a complaint under the Safety, Health and Welfare Act 2005 as amended:

Section 27 of the Act states:

27.— (1) In this section “penalisation” includes any act or omission by an employer or a person acting on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2) Without prejudice to the generality of subsection (1), penalisation includes—

(a) suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

(b) demotion or loss of opportunity for promotion,

(c) transfer of duties, change of location of place of work, reduction in wages or change in working hours,

(d) imposition of any discipline, reprimand or other penalty (including a financial penalty), and

(e) coercion or intimidation.

(3) An employer shall not penalise or threaten penalisation against an employee for—

(a) acting in compliance with the relevant statutory provisions,

(b) performing any duty or exercising any right under the relevant statutory provisions,

(c) making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d) giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e) being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f) subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

(5) If penalisation of an employee, in contravention of subsection (3), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

(6) For the purposes of subsection (3)(f), in determining whether the steps which an employee took (or proposed to take) were appropriate, account shall be taken of all the circumstances and the means and advice available to him or her at the relevant time.

(7) Where the reason (or, if more than one, the principal reason) for the dismissal of an employee is that specified in subsection (3)(f), the employee shall not be regarded as unfairly dismissed if the employer shows that it was (or would have been) so negligent for the employee to take the steps which he or she took (or proposed to take) that a reasonable employer might have dismissed him or her for taking (or proposing to take) them.

The complainant believes that he may have been dismissed because he made a complaint about safety to his manager:

“I think I was penalised by my employer (manager) for making complain about my safety and safety of other people in traffic. Since there weren’t any other reasons why my job was terminated”

In Paul O’Neill v Tony & Guy Blackrock Limited [2010] ELR 21, the Labour Court made the following comments in relation to the “but for” test:

“The detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Claimant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Claimant having committed the protected act he, or she, would not have suffered the detriment. This involves the consideration of the motive, or reasons, which influenced the decision maker in imposing the impugned detriment.”

Section 27(4) states:

(4) The dismissal of an employee shall be deemed, for the purposes of the Unfair Dismissals Acts 1977 to 2001, to be an unfair dismissal if it results wholly or mainly from penalisation as referred to in subsection (2)(a).

On the facts of this case the employee has not discharged the burden of proof that he was in fact dismissed. On balance, the evidence shows that he walked off the job and stated that he had an enough of this. I have concluded that what he had enough of, was working longer shifts arising from breakdowns and not because of safety concerns. In any case it is not possible based on the facts of this case to conclude that the employee was in fact dismissed wholly or mainly because of making a safety complaint.

CA-00041281-002:

The complaint is not well founded.

The Complainant has provided no supporting documentation concerning his claim that he was left short by €450. The Company has provided a detailed breakdown of all payments made to the employer since he commenced his employment. There is no evidence to support the Complainant’s claim that he was unlawfully deducted €450 and that he worked for 46 weeks and was paid for 47 weeks. The Employer produced records to show that in fact he was paid for his last week of employment, with a pay date of 13th of November 2020 and was paid for 20 holidays.

The Complainant has provided no supporting documentation concerning his claim that the was not paid the correct holiday pay. The Company has provided detailed records that do show that the Complainant received his holiday pay.

CA-00041281-003:

The complaint is not well founded as I have determined that the employee has not discharged the burden of proof that he was dismissed. In those circumstances the liability to pay statutory minimum notice does not arise.

CA-00041281-004:

The complaint is not well founded.

The Complainant alleges that he did not receive his holiday pay; see 002, where the employer has produced records to show that in fact, he was paid his statutory holidays. Therefore, there is no evidence to support the complainant’s claim. The Company also rely on an inspection carried out by the Workplace Relations Commission to show that there was no deficit in their recording system concerning attendance records.

CA-00041281-005:

The complainant was not unfairly dismissed, and the complaint is not well founded.

The Complainant alleges that he was unfairly dismissed by the Respondent employer. However, the fact of dismissal is in dispute.

The employee carries the burden when a dismissal is in dispute to show that a dismissal did in fact occur.  The employee walked off the job, if this was a constructive dismissal case the facts would not support a claim that a fundamental breach of the contract had occurred or that the behaviour of the employer was unreasonable so that the employee had to leave the job.

So, do the acts of the employer when cumulatively assessed prove that what in fact happened was a termination? On balance the complainant has not discharged the burden of proof that what occurred was in fact a dismissal and not a resignation. The facts do show that he walked off the job because of a truck breakdown and how that impacted on the length of the working day. There is no evidence to support the employee’s view that the company operated an unsafe system of work. Therefore, I conclude that the employee was stating that he no longer wished to work for this company as the frequency of breakdowns unpredictably extended his working day and he no longer wished to work under that reality. On balance I must determine that on the facts the employee had in fact resigned.

CA-00041281-006:

The complaint is not well founded.

The Complainant alleges that he was penalised for complying with or making a complaint under the Safety, Health and Welfare Act 2005 as amended:

On the facts of this case the employee has not discharged the burden of proof that he was in fact dismissed. On balance, the evidence shows that he walked off the job and stated that the had a enough of this. I have concluded that what he had enough of, was working longer shifts arising from breakdowns and not because of safety concerns. There is no evidence to support his contention that he was penalised for making a safety complaint to his manager.

Penalisation-Unlawful Deductions