Complainant

Respondent

Anonymised Parties

A Driver

A Bus Company

Representatives

Terence F. Casey & Company

Dawson O'Toole Solicitors

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-00035123-001

10/03/2020

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

CA-00035123-002

10/03/2020

This case covers claims for unfair dismissal and payment of wages. The Complainant is a Lithuanian National and is represented by Conor Myles, Solicitor.

The Respondent operates a Bus Company and has denied both claims. The Respondent is represented by Conor O Toole, Solicitor. The Complainant was supported by the presence of an Interpreter in the Lithuanian language.

Both parties submitted written submissions. The Respondent also relied on the evidence of three witnesses for the company.

At the end of the hearing, I requested additional information on loss and mitigation and received responses from both parties.

The Complainant worked as a Bus Driver for the Respondent Company from 5 October 2018 to the date of his dismissal for gross misconduct on 4 December 2019. He agreed with the respondent submission on weekly wages earned as €512.47 gross and €497.53 nett.

CA-00035123-001 Claim for Unfair Dismissal

The Complainant submitted that he had been unfairly dismissed on 4 December 2019 and sought the remedy of compensation. He took issue with the procedural framework around the dismissal and observed this to be unfair.

The Complainants representative outlined that he had an unblemished disciplinary record at time of the incident with the coach. He had difficulty with the instructions issued on manoeuvring the coach but accepted that he had been driving at the time. The Complainant initially refused to cover the cost of repairs as he believed that it was rightfully covered by the company insurance policy.

During the investigation meeting on 14 November 2019, the complainant raised the issue of unpaid hours which went unheard at the respondent. The respondent did not accept the complainants genuine attempt to offset the repairs amount of €850 against these hours owed.

The Complainants representative outlined that he did not refuse to pay, he just wished to restructure the repayment against a debt owed to him by the company.

The Complainant engaged with the Respondent on this topic and understood that the Company had the power to deduct the amount from his salary, but they did not do so. The Complainant was not met with a personalised repayment plan.

Instead, he lost his job in the run up to the Christmas period, causing him reputational damage and ultimately financial hardship.

The Complainants representative raised some concern that during the disciplinary process the complainant had sought to bring certain documentation to his Solicitor for advice and this was ruled out on “lateness “.

The Complainants representative contended that less severe sanctions were open to the respondent. He submitted that if the procedural framework surrounding the request to repay the damage had been conducted more amicably, he would have repaid the amount.

He argued that dismissal was disproportionate, and the date of dismissal should have followed the conclusion of the second appeal on 9 January 2020.

The complainant was aggrieved that the additional hours engaged by him in “ setting up of the bus in the morning , the initial checks of the bus an preparing the bus for journey ahead and/or the additional sum for the amount of time of returning the bus to the depot , doing the finalised checks and signing off the return of the vehicle “ were not recognised . This was unjust and ought to have been off set against the bill for damage.

The Complainants actions did not amount to gross misconduct and should have been managed via the available provision for a deduction in pay.

Complainants Evidence:

The Complainant had 13 years driving experience. During his tenure with the respondent company his working schedules were dictated by roster. Journeys varied in length and duration and traffic congestion played a part in same.

The Complainant told the hearing that there was a general air of discontentment amongst the drivers regarding the “waiting around “periods and additional “unpaid time “accumulated as a result.

The Complainant accepted that he was involved in an incident where his Bus had hit a wall in August 2019. He accepted that the damage amounted to €850.00

He submitted that he had never refused to pay and had instead wanted this payment to be off set against the accumulated 250 working hours which were unpaid. Nobody at the company told him that the amount would be deducted from his pay. He had no idea he could be fired for not repaying the sum requested.

The Complainant told the hearing that he had previously raised the topic of the unpaid hours with the Transport Manager, without resolution.

The Complainant told the hearing that he had commenced new work on 15 November 2019 as a General Operative on €18 per hour on an ad-hoc basis. He gave some evidence of loss and mitigation.

He submitted that the dismissal had caused him to become depressed and to experience financial hardship.

During cross examination, the complainant confirmed that he had agreed to receive payment by trip when he accepted the position of Bus Driver.

He confirmed that he had received the respondent letters surrounding the Investigation and Disciplinary hearing. He confirmed that he “wasn’t thinking “at that time.

He told the respondent representative that his suspension by the respondent served as a catalyst for him sourcing new work. He said that he applied for the position on the 14 November 2019 and commenced on November 15. He was uncertain on what monies he had earned since his dismissal. He gave some evidence on finding new work which had been negatively impacted by the national pandemic.

He confirmed that he had commenced new work on 15 November 2019 on an ad-hoc basis as he knew that his job was in jeopardy and wished to make provision for continued employment.

He confirmed that his refusal to pay for the repairs was inextricably linked to him seeking to offset this payment against unpaid hours that were owed to him. He submitted that he deserved to be paid €2,500.

He confirmed that he was represented by another bus driver, who was also suspended at that time.

In conclusion, the Complainants Representative submitted that the circumstances of the case did not amount to gross misconduct.

The Respondent chose not to follow their own policy and did not take back the deduction. Had they adopted this course of action, the complainant would still be employed.

He argued that the complainant, who was in fact a lay litigant was unfairly dismissed.

The Complainants Solicitor filed a post hearing submission on loss and mitigation

CA-00035123-002 Payment of Wages

The complainant submitted that he worked additional 250 unpaid hours to his roster. He estimated that this amounted to half an hour prior to commencement and half an hour post conclusion of the roster. He sought the sum of €2,500 in respect of time spent “outside of driving the bus “on preparatory work and ceremonial work on his return to the Depot.

He submitted that this contravened the Payment of Wages Act, 1991 as he had worked unpaid hours. The Complainant submitted that he had raised the issue with the Transport Manager but had not actioned a grievance in pursuance.

The Complainant submitted that the topic of unpaid hours was a universal grievance amongst his colleagues.

CA-00035123-001 Claim for Unfair Dismissal

The Respondent operates a Bus Driving business, where 30 drivers are employed in the geographical location referred to in this case. The Complainant was employed as a Coach Driver on 5 October 2018. The Respondent exhibited the Statement of Main Terms of Employment and Staff handbook.

The Respondent representative submitted that it was common case that during August 2019, the complainant had been involved in a manoeuvre during his work which had placed the respondent at a loss for the value of the damage. The remedial action was a repair to the wall and was quantified as €851.25. This was not comprehended by an Insurance claim.

The Respondent had no issue with the complainant prior to this incident and was troubled by the complainant’s refusal to pay.

The complainant was invited to attend an Investigation meeting on 12 November 2019 and permitted representation. An Investigative meeting followed on 14 November 2019, where the complainant was shown CCTV footage, given a copy of the bill and refused to pay for the repair of the wall.

On 25 November 2019, the complainant attended a Disciplinary hearing and refused to pay for the repairs.

On 4 December 2019, the complainant attended a Disciplinary outcome meeting where he was issued with a letter of dismissal on grounds of gross misconduct for continuing to refuse to carry out legitimate instructions and refusal to adhere to a payment deduction plan following negligence in the control of a vehicle.

The Complainant was afforded two appeals, both upheld the company position on dismissal.

The Respondent submitted that there were substantial grounds accompanying the dismissal and the complainant was afforded fair procedures in conducting the dismissal.

The Respondent placed a special reliance on terms incorporated in “Deductions from Pay Agreement”, which was appended to the complainant’s statement of main terms of employment. This provided the framework in which the respondent sought to make good the damage done.

1. Damage at the end of the shift will be the responsibility of the individual who has directly caused the damage. Any such economic loss caused by the damage may be deducted from wages, these costs would be up to but no more than €1,000. You will be given a written statement of the amount of the deduction, date when the error occurred and the reason for such a deduction.”

2.“Any damage to vehicles, stock or property that is the result of your carelessness, negligence or deliberate vandalism will render you liable for the first €1,000 of repair or replacement.

Any loss to us that is the result of your failure to observe rules, procedures or instruction or is because of your negligent behaviour or your unsatisfactory standards of work will render you liable to re-imbrues to us the full or part of the cost of the loss.

In the event of an at fault accident whilst driving one of our vehicles you may be required to pay the repair cost. In the event of failure to pay, such costs will be deducted from your pay.

Evidence of Mr A. Depot Manager.

Mr A operated the depot of 30 drivers. He confirmed that damage arising from the collision with the wall was quantified at €850 and sent as a bill to the complainant’s email dated 4 September 2019.

The Complainant admitted to driving the bus yet refused to pay saying that he would think about it and would show the bill to his Solicitor.

Mr A met with the complainant in October 2019 and the complainant told him that he would not be paying the amount due.

The Complainant told Mr A that his unpaid hours of work would more than pay for the damage.

The Complainant was suspended with pay, pending an investigation.

During cross examination, the complainant’s representative put to Mr A that a colleague of the complainants had not been asked to cover the cost of a mirror that he had been involved in.

Mr A distinguished the two events by stressing that the complainant had engaged in a blanket refusal to pay for repairs. He had only raised the topic of unpaid hours at the end of the meeting.

Mr A considered the dismissal reasonable and proportionate.

When asked why the deduction for repairs was not imposed on the complainant. Mr A responded by saying that the company was chasing and agreed deduction plan. The money was eventually deducted from the complainant’s final salary payment.

Mr A confirmed that the complainant had returned to his driving duties post the incident in August and had worked continuously up to the date of his suspension on 14 November.

Evidence of Mr B, Transport Manager (Disciplinary Hearing)

Mr B undertook a Disciplinary Hearing to address the complainant’s refusal to pay for damage. He considered the CCTV footage, repair bill and the investigative meeting minutes.

He confirmed that the complainant brought up the underpayment of wages and was informed that the forum of disciplinary hearing was not the proper forum for that discussion. The objective was to sort out a payment plan to suit the employee.

He did explain the composite rate paid included coming to work. He submitted that the complainant had not raised this matter prior to the incident of damage.

Mr B clarified that the complainant was a part time driver who undertook 4 spans of duty per week. He was paid the Industry norm with overtime at the standard rate.

Mr B soon determined that the complainant was not prepared to pay for the damage caused. He tried hard to secure his co operation but found that the complainant did not respect the contract and was totally against payment.

Mr B formed the view that his employment was untenable going forward. He confirmed that the complainant understood that his job was at risk from the very beginning via the letters of invitation.

During cross examination, Mr B reaffirmed that he wanted to secure an agreement on repayment of the repair bill.

He readily agreed that he had not formalised a repayment plan. He said he wanted to negotiate rather than enforce, out of respect for the employee. He had no desire to inflate matters.

Mr B was shocked by the complainant’s attitude towards a simple request for repayment of repairs, for which there was provision in an agreement.

He confirmed that he had made the decision to dismiss and countered that it was not disproportionate. He found that the complainant had unnecessarily deflected the issue from repayment by insisting Insurance could pay.

Mr B confirmed that the complainant had not sought access to a Solicitor. He believed that the harm he caused the company was attributed to his attitude in the face of the blanket refusal to pay for the repairs. Trust had disappeared.

The complainant was aware that his job was at risk and the disciplinary meeting lasted 30 minutes. during this time, the complainant asked Mr B to take recordings from other drivers on conditions of employment. He did not take these recordings into consideration.

Conclusion:

The Respondent representative concluded that the company had sought payment for damages owed by means of an agreement.

The complainant had agreed to the terms of deduction on his commencement with the respondent. He was fully aware of the risk to his job during the Disciplinary process.

He found new work the day after his suspension and refused to repay. The respondent did not recover from the breach of trust demonstrated by the complainant. The dismissal was fair in the circumstances.

The respondent representative also contended that the complainant had contributed to his own dismissal.

At the end of the hearing, the Complainant undertook to furnish details of loss and Mitigation. These were received and forwarded for response.

The Respondent made a very comprehensive response to this document and pointed to the complainant’s part time status, the paucity of job applications and the considerable gaps in time surrounding these applications. This submission was directed at any consideration the Adjudicator may have for the application of the Act, notwithstanding that unfair dismissal was denied by the respondent. The Respondent also remarked at the concurrent periods of employment engaged in by the complainant from 15 November 2019.

CA-00035123-002 Payment of Wages

The Respondent rejected the claim and argued that it had not been raised during the complainant’s period of employment.

The Respondent had honoured the complainants pay, which formed the Industry norm and was outlined in his contract of employment which provided a fee per named trip and authorised overtime paid at a standard rate.

Hours were returned on record sheets and the complainant had not returned additional hours for payment purposes.

CA-00035123-001 Claim for Unfair Dismissal

I have been asked to inquire into the facts of this case and to decide on the fairness or otherwise of the dismissal that took place on 4 December 2019.

In reaching my decision, I have had regard for all written and oral submissions in addition to the contract of employment and staff handbook. I have also considered the evidence adduced. This case was enabled by Lithuanian translation during the hearing.

The Law on Unfair Dismissal is outlined in Section 6 of the Unfair Dismissals Act 1977, as amended.

6.— (1) 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) (b) provides for an exception to this in the case where a respondent can establish that dismissal arose wholly or mainly from the conduct of the complainant.

Section 6(6) of the Act places a firm burden of proof on the respondent in that regard.

Section 6(7)(a) of the Act permits me to look at the reasonableness or otherwise of the conduct of the employer by act or omission.

Section 7 outlines the provision for a remedy in the circumstances of a successful claim for Unfair Dismissal. The Complainant in the case has worked on a sporadic basis since his dismissal and has sought the remedy of compensation. He gave some evidence of loss and mitigation which required a further written submission and respondent reply.

This is a case where the complainant had worked for just over 10 months before he unexpectedly manoeuvred his Bus into a wall during his duty as a Bus Driver. This single event dated 28 August 2019 came on foot of a blemish free employment. The Respondent almost immediately called on their understanding of agreements made between the complainant and the respondent at the commencement of employment, that such an eventuality should be addressed by repayment of damage to a cap of €1,000. They sought repayment for the damage and provided the quotation for the repairs for the attention of the complainant.

When payment was not forthcoming, the Respondent initiated an Investigation in accordance with the Company Disciplinary procedure and the complainant was suspended on full pay from 14 November 2019. The Complainant co-operated with the investigation and placed his request for payment for hours worked in parallel with the Disciplinary procedure and offered to cover the damage if in turn the respondent made good on his unpaid hours of work.

The Respondent sought to stratify and distinguish both issues and was unable to secure payment for the damage from August 2019. The Investigation meeting was interspersed with a stated concern that the complainant had engaged in surreptitious recording of the meeting. This was denied by the complainant.

This continued unchanged until the Complainants dismissal on 4 December 2019. The Respondent submitted that the Complainant was dismissed on grounds of gross misconduct under the company procedures:

“Continuing refusal to carry out legitimate instructions. Refusal to adhere to payment deduction plan following negligence in control of vehicle “

The Complainant was very aggrieved by the decision taken to dismiss him, which he described as

“wrong “during both post dismissal appeals.

The Complainant has secured a modicum of new work and has sought compensation in respect of his dismissal.

In assessing the facts of this case, I am mindful of my objective to ascertain whether this dismissal was based on substantial grounds and whether it fell within the “band of reasonableness”?

I have placed weighting on the principal reason for dismissal put forward by the Respondent at hearing.

I have also been persuaded by the EAT decision on Reasonableness in:

Hennessy and Read and Write Shop Ltd UD 192/1978

• Nature and Extent of the enquiry prior to decision to dismiss.
• Employers conclusion.

I have also considered the well quoted deliberations of the Tribunal in the seminal case of Bunyan V United Dominion Trust [1982] ILRM 404

The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.

The Tribunal, therefore, does not decide the question whether or not, on the evidence before it, the employee should be dismissed.

The decision has been taken and our function is to test such decisions against what we consider the reasonable employer would have done and/or concluded.

A careful reading of the terms of employment shows that this document was signed without comment by both parties on 5 October 2018.

An addendum “Deductions from Pay Agreement “was attached and signed by the complainant on 7 November 2018. He had made some handwritten adjustments to the document which inferred that he disagreed with aspects of the terms.

However, his signature reflected his agreement and I could not establish that he had informally or formally challenged any of these provisions prior to the 14 November 2019, the day of the Investigative meeting.

Both parties have accepted that the complainant was involved in a manoeuvre during his work that went wrong and caused the bus to collide with a wall for which a quotation for damages and rebuilding was raised at €851.25 inclusive of vat.

I accept that the respondent adopted a constructive approach to seeking this repayment in the first instance. I also accept that they facilitated the complainants stated intention of discussing the issue with his Solicitor.

Time passed, and payment remained outstanding. The Respondent submitted that the complainant had engaged in a stand-off in respect of the pursuance for payment. The Respondent elevated the matter onto a Disciplinary platform by 12 November 2019, when the Complainant was invited to an “investigation meeting to investigate the payment of money for damage caused the bus you were driving “at 11.30 am on 14 November 2019.

The Complainant was advised he could be accompanied, that the matter could lead to disciplinary action up to and including dismissal and that he should refer to his employee handbook. He raised two questions in advance of the meeting.

1 who would be attending?

2 Whether other questions would be discussed?

Mr A confirmed that he would be running the meeting.

I have considered both parties evidence on this meeting. I accept that Mr A sought to investigate the circumstances around the non-payment of the money associated with the damages. The notes agreed by both parties contain the following:

“On 24 October 2019, you said in a meeting with me and Mr B that you will not repay the amount due and (the respondent) should take you to court if they want payment. Is that still your stance “?

The Complainant, who was represented responded “That is still my stance, correct “

The Complainant took issue that a fellow driver should absorb half the cost and then introduced the association of non-payment of outstanding wages with his reluctance to pay for the damages.

The Respondent took issue when they believed that the interview had been surreptitiously taped, which was denied by the complainant.

The Complainant was placed on paid suspension at the end of the meeting, which was confirmed in writing some hours later.

I had some difficulty with the introduction of suspension at this juncture. The Respondent confirmed that the suspension was to facilitate an investigation. However, I saw no further investigative process post this meeting as less than 5 hours after the Investigative meeting concluded, the complainant was invited to a Disciplinary hearing on 18 November which he declined. The company procedures allow for an “uninterrupted investigation “

I could not establish that he was given the outcome of the Investigative process.

This is a particularly alarming when I consider how the higher Courts have confronted and commented on suspension in Bank of Ireland v Reilly [2015] IEHC 241 and have stressed the significance of a holding or punitive suspension.

In a recent Labour Court case of TE Laboratories ltd v Jakub Mikoljczyk [2019]30 ELR 198, a claim for constructive dismissal, the Court held that:

Suspension which can cause irreparable damage to all employee’s reputation, should be a measure designed to facilitate the proper conduct of the investigation or it may be justified to prevent repetition of conduct of an employee, to protect others at risk from that conduct, prevent interference with evidence or to protect the employer’s business or reputation.

I am satisfied that the respondent did not have operational concerns regarding the complainant from the time of the incident as he continued to drive unhampered and without incident post the August collision.

Considering the narrow period between conclusion of the investigative meeting and the announcement of the transition to Disciplinary Hearing by Human Resource staff, I cannot accept this period of suspension as anything other than punitive.

However, I must also observe that the 14 November 2019 has become quite a symbolic day in this case. It reflects the investigative meeting, the commencement of paid suspension, the day the complainant said that he applied for new work and a period which is reflected in his statement of earnings as attracting a DSP payment.

The Complainants representative advanced that the complainant was aware that the tide had turned against him at work by November 14, 2019 and this prompted his application for new work, to safeguard his future. The Complainant confirmed that he commenced that new work a day later November 15 at a much higher hourly rate but became vague when pressed on what he earned during that period. His P60 for this new work to year end, December 2019, submitted post hearing did not reflect reported earnings, but I found it all very confusing and difficult to reconcile with the presiding event in the case, the request for payment for damage done to a wall in August 2019.

I was also troubled by the complainant’s unavailability when requested to attend the Disciplinary procedures.

The Complainant also told the hearing that he had raised issues of non-payment of hours worked as far back as 2018 and was beginning to be associated as a trouble maker, which went to the root of his dismissal.

I found no evidence of bias or animus in the respondent treatment of the complainant prior to his dismissal. He was afforded representation and seems to have chosen another driver who was also suspended for that purpose. I established that he had not sought to introduce his Solicitor to the Disciplinary process. However, I did establish that the respondent agenda of seeking payment for damage was repeatedly frustrated by the complainant when he sought to deflect the respondent from collecting this sum. This prompted the Respondent to activate the Disciplinary procedure on 12 November 2019.

I have reflected on Mr Bs very compelling submission to the hearing. I note that he had been involved in an earlier informal attempt to secure voluntary repayment and it probably was not ideal that he presented in the role of Decision maker in this case. However, I found Mr Bs evidence to be very sincere in seeking to reach out and secure a payment against a backdrop of a perceived Agreement. I was taken by his utter disbelief at the persistent refusal to pay and I commend his efforts to stratify the issues between disciplinary and whatever grievance the complainant had on hours of work.

Mr B relied his incredulity that an Agreement was disregarded and treated with disdain by the complainant. He was perplexed that this fractured the employment relationship as trust had eroded.

I note that he had no idea that the complainant had found new work at this stage as this detail was not shared with the Company. I note that workers were expected to share details of additional work with the Principal employer. However, this exempted part time employees.

I found that the complainant was provided with a fair Disciplinary hearing. He was given an extensive opportunity to state his case. He was provided an opportunity to have a representative with him but proceeded alone. Again, the complainant was unavailable for the initial hearing dates.

Strangely, the complainant seemed to address the meeting as an opportunity to air grievances. When asked if he was prepared to sign a repayment plan. He firstly made signing conditional on receiving pay for hours he said were unpaid. His final position, however amounted to a refusal to pay.

I have established that the complainant did not engage in the Disciplinary Hearing to any notable extent. I say this as issues of every day work crept into the hearing and were misplaced there. In addition, the complainant sought to hand the respondent details of other workers grievances at this meeting. He acknowledged that the damage was partly this fault but continued to conflate payment with the company’s debt to him for unpaid hours.

The Complainants representative submitted that the respondent had prevented the complainant in seeking legal advice. I can’t agree with this as he was offered representation at both the Disciplinary hearing and the outcome meeting and he attended alone. Both parties accepted at hearing that the complainant had been provided with minutes of the investigation and disciplinary hearing prior to the outcome meeting and a request to introduce a Solicitor to the case had not followed at that juncture. The complainants request on the cusp of receiving notification of dismissal was to bring

“documentation to my Solicitor”

I find that he was not denied this opportunity. I could not ascertain that the complainant actively sought his job back through either Appeal.

For me, at least, it seems that the complainant had adopted a detachment from his work as a Bus Driver from 14 November 2019 onwards. I cannot accept that the complainant made a first application for his new work on 14 November. He did not show any evidence around this. I am left to conclude that application must have preceded this date.

The Complainant did not tender any medical evidence of depression.

I must now consider the sanction of dismissal that followed a “single incident “dismissal.

The complainant had a blemish free employment record prior to the unfortunate incident with the bus in August 2019.

On 7 November 2018, the complainant signed an acceptance that the “Deduction from Pay Agreement” formed part of his contract.

A careful examination of this document displayed a certain ambiguity in sections 7 and 8.

Section 7

Any damage at the end of the shift “will be the responsibility of the individual who has directly caused the damage “Economic loss caused by the damage may be deducted from wages.

This applies a discretionary approach.

Section 8

Already included above. “You may be required to pay the repair cost. In the event of failure to pay, such costs will be deducted from your pay “

As I stated above, the complainant inserted some pencil marks around section 8 and said he disagreed with this clause by concluding “Insurance is for that “.

The Respondent did not establish that the complainant had been proved to be careless, negligent or engaged in vandalism. The Complainant had accepted that the clash was partly his fault and refused to pay.

I must consider if a dismissal based on those facts is fair and within the band of reasonableness.

I must conclude that the complainant proved a significant management challenge for the respondent in seeking to recoup a sum of €851 euro. I appreciate that the respondent was prepared to negotiate on this request but withdrew from this process when they observed that the complainant was not prepared to be bound by an Agreement and the respondent lost faith in him.

The Respondent Disciplinary procedure emphasises an opportunity for corrective action.

Justice Noonan in Reilly, in the High Court directs that an assessment of reasonableness and proportionality of the employer response “must have regard for surrounding circumstances including the impact of the conduct on the employer as against the impact of dismissal on the employee “

Both parties accepted that the respondent recouped the sum for the damage from the complainants last pay date which post-dated dismissal. The Respondent submitted that the damage caused to the company was the complainants blatant disregard for a pre-existing Agreement and the resultant loss of trust.

I cannot accept that this satisfies the test for substantial grounds justifying dismissal.

I accept the Complainants submission that dismissal set against the opportunity outlined in section 8 to recoup was precipitous.

The circumstances of the case are unusual as the company clearly took measured steps to recoup the money. These were all disregarded by the complainant who chose to deflect the request into a separate unrelated matter.

At the time of the dismissal, the respondent acted without recourse to the last arrow left in their bow, that of an opportunity to deduct the amount sought.

I understand that the respondent was bitterly disappointed to be treated disrespectfully by an employee who had entered an Agreement on repayment. However, if I apply the test on sanction in

Noritake (Ireland) ltd v Kenna Employment Appeals Tribunal UD 88/1983 applied in

Gustave Bigaignon v Power team Electrical Services ltd [2012] 23 ELR 195, a case surrounding Misconduct and proportionality of sanction in safety critical duties.

1 Did the company believe that the employee mis conducted himself as alleged? If so,

2 Did the company have reasonable grounds to sustain that belief? If so,

3 Was the penalty of dismissal proportionate to the alleged misconduct?

In the instant case, I find that the respondent can satisfy the first two limbs, but considering a veritable option to recoup losses from salary, I find that in dismissing the complainant for this

“single episode incident” the respondent acted harshly and without due regard for the impact of the dismissal on the complainant.

I find the sanction of dismissal to be wholly disproportionate ion the circumstances. However, I find that the complainants conduct in relation to the request for repayment contributed in a major way to his dismissal.

Just as the Labour Court has frowned on an attempt by an Employer to augment allegations in Kilsaran Concrete ltd v Vitalie Vet [2016] ELR 237, I must frown on the efforts of the complainant to seek to habitually augment an aspect of the disciplinary process to amount to placing a “spanner in the works”.

The complainant was unfairly dismissed.

CA-00035123-002 Payment of Wages

This is a claim for deduction of wages for 250 hours preparatory and wrap up work outside of the “remuneration per route “provided in the contract of employment.

I cannot establish that this matter was raised before November 14 at the above detailed Investigation Meeting. It was not quantified at that time.

The Respondent has vigorously contested the claim and argued that the matter should have been raised through the company grievance procedure.

The law on Payment of Wages is provided in the definition of wages in Section 1 of the Act. A deduction is not expressly defined there.

“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:

Provided however that the following payments shall not be regarded as wages for the purposes of this definition:

(i) any payment in respect of expenses incurred by the employee in carrying out his employment,

(ii) any payment by way of a pension, allowance or gratuity in connection with the death, or the retirement or resignation from his employment, of the employee or as compensation for loss of office,

(iii) any payment referable to the employee's redundancy,

(iv) any payment to the employee otherwise than in his capacity as an employee,

(v) any payment in kind or benefit in kind

Section 5(1) precludes a deduction in wages save in three specific instances governing contract, agreement, and consent.

Section 5(6) of the Act addresses the maxim of properly payable wages

6) Where—

(a) 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), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion

In the instant case, the contract of employment outlines that wages depend on specific routes and are inclusive of employee’s subsistence expenses.

Expenses are not reckonable as wages under the Act.

The complainant’s case is that he was obliged to serve a half an hour for free in advance or each trip and a half an hour on his return. His representative argued that non-payment of this time constituted a deduction under the Act. This was contested by the respondent who contested any such obligation and insisted that overtime was by invitation by the business and not presumption by the complainant.

For my part, I note that this claim came before the WRC on 10 March 2020. The Complainant had left employment some 4 months previous.

My jurisdiction in this case is governed by Section 41(6) of the Workplace Relations Act, 2015.

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The Complainant has framed the complaint from the commencement of employment and submitted that the complainant did not receive his proper pay from the outset.

In HSE V Mc Dermott [2014] IEHC 331, Hogan J in finding in favour of a delay in pay rise for a Medical Consultant,emphasised that the date of contravention was to be judged on complaint formulation and the date of the contravention to which the complaint relates.

In Moran v EAT [2014] IEHC 154, the High Court in reviewing a claim cited as a contravention in 2010 held that this fell outside the statutory time limit for such claims.

In the instant case, the complainant formulated his claim from the outset of his employment, that is October 2018, He did not specify dates within the six months required. However, I accept that he referred to the period 6 months in advance of his referral in March 2020. He ceased active service on November 14, 2019 and was on paid suspension until his dismissal on 4 December 2019.

I find that I can apply Mc Dermott in this case and can allow the claim as being in time.

I have considered both parties oral and written submissions in this case. I find that the respondent had no stated requirement for the complainant in advance of his shift. It may well be that the complainant was conscientious and attended work with some time to spare and delayed his departure accordingly, but I cannot equate the claim with “properly payable wages “

The issue may well have been better addressed through a collective bargaining platform.

In Tesco Ireland and David Bialowas PWD 1920, the Labour Court addressed a claim for payment of wages on transition from night work to day work and found that no contravention of the Act had occurred as the complainant was offered a return to night work but refused.

I cannot establish that additional pay was properly payable to the complainant in this case on a par with that decided in Sullivan v Dept of Education [1998] ELR 217. I have not found a deduction in pay contrary to section 5 of the Act.

I find the claim is not well founded.

CA-00035123-001 Claim for Unfair Dismissal

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I have found that the complainant was unfairly dismissed. I have found that he played a major role in his demise.

In applying the terms of Section 7 of the Act, I find that compensation is the only practical remedy open to me. I have reservations on the complainant’s failure to adopt measures to mitigate his loss.

I award the complainant compensation of €6,149.64 in respect of his unfair dismissal.

CA-00035123-002 Payment of Wages

Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 6 of the Payment of Wages Act, 1991 requires, that I decide in relation to the complaint in accordance with Section 5 that Act.

I find the claim is not well founded.

Unfair Dismissal, Payment of Wages.