Complainant

Respondent

Anonymised Parties

A Fleet Manager

A Logistics Company

Representatives

Niamh Walsh Martin A. Harvey & Co. Solicitors

 Julian Moroney – Kirby Healy Chartered Accountants.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00034028-001

28/01/2020

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

CA-00034028-002

28/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034028-003

28/01/2020

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

CA-00034841-001

25/02/2020

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

CA-00034841-002

25/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034841-003

25/02/2020

The Complainant commenced work with the Respondent on July 16, 2018 until cessation of employment on 3 January 2020. The Complainant submits that he has no access to his work online portal, which contains documentary evidence of his wage slips but asserts that his gross pay was €369.00 a week plus a weekly subsistence payment €137.00, which the Complainant submits gave him a weekly net amount of €493.00. The Complainant is claiming Unfair Dismissal, a breach of the Payment of Wages Act in that he did not receive his full final weeks pay and furthermore, that he did not receive his statutory minimum notice.  The Respondent denies all claims in their totality.

CA-00034028-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Complainant was employed by the Respondent in the role of Fleet Manager and worked with the Respondent since 16 July 2018. The Complainant initially carried out the role of Acting Fleet Manager and was later promoted to the role on a permanent basis.

On 3 January 2020 the Complainant gave evidence that Mr B, the managing director of the Respondent company had misidentified a driver who had driven a van out of hours. The Complainant asserts that he approached Mr B to discuss the situation and suggest that he, Mr B, should apologise to the driver for the mistake.  The Complaint gave evidence at this point that Mr B became aggressive said "I'm the owner." "I make the final decision”. The Complainant asserts that he took further issue with Mr B about the wronged employee, but that Mr B then replied, "Get out, you're done here, you're finished". The Complainant claims he protested this statement, but that Mr B said, “You're finished-out". Mr B said that he then left the premises but that he felt very upset and humiliated because Mr B had sacked him in full view of other colleagues. The Complainant gave evidence that he heard nothing further from the Respondent.

Fact of Dismissal:

The Complainant submits that the words Get out, you're done here, you're finished" and "You're finished-out" were interpreted by the Complainant to constitute a dismissal and that there was no ambiguity in the words of Mr B.  The Complainant cites Devaney v DNT Distribution Company Limited UD412/1993 where the EAT examined the issue of a dispute regarding a dismissal and noted that “where words are genuinely ambiguous what needs to be decided is what the speaker intended. Did the employer mean to be 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.”

The Complainant also cites the Employment Appeals decision in the case of Mansour v Romansa Limited UD 360/2004, where EAT concluded that it was reasonable for the employee to believe he had been dismissed when his manager said “Leave now” to him. The EAT was also mindful of the fact that no effort had been made by the manager to contact the employee to resolve their dispute. The Complainant asserts that the failure of Mr B to contact the Complainant after 3 January 2020 was demonstrative of the Respondent’s decision to dismiss.

The Complainant further submits that without prejudice to the fact that it is clear that the Complainant was dismissed, based on the words uttered by Mr B, if the Respondent was of the view that the Complainant had resigned it would have been best practice and appropriate to follow up with him and offer an opportunity to withdraw the resignation, particularly in circumstances where the Respondent alleges that the complainant was in "an irate state". 

The Complainant submits that the statement of Mr C, submitted by the Respondent, and purporting to suggest that he never heard Mr B say that the Complainant was fired, is inadmissible because Mr C was not present to give evidence in respect of same. In addition, the Complainant submits that the statement cannot be relied upon as Mr C was an employee of the Respondent at the time of providing the statement and is in no way independent. Furthermore, the Complainant submits that Mr C was not within earshot of what accurately transpired at the time.

The Complainant submits that the dismissal was carried out without adherence to any proper procedures and therefore the Respondent had acted unreasonably at all times in the commission of the dismissal. The Complainant cites the Labour Court case of Beechside Company Ltd t/a Park Hotel Kenmare and A Worker LCR211798where the Labour Court stated:

“The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.”

CA-00034028-002 complaint seeking adjudication under Section 6 of the Payment of Wages Act 1991, as amended.

The Complainant submits that he did not receive full payment for the final week of work completed by him prior to his unfair dismissal. The Complainant received final payment in the sum of €64 on 10 January 2020 when he should have received payment of one week’s pay in the sum of €493.00. The Complainant contends that the Respondent has made an unlawful deduction to the Complainant’s pay in breach of Section 5 of the Payment of Wages Act 1991 and is seeking redress in line with Section 6 of the Payment of Wages Act 1991.

The Complainant indicates that the Respondent, in its correspondence to the Workplace Relations Commission dated 18th February 2020 has alleged that “Any deductions made to his salary were only in the amounts due to the company”. The Complainant submits that he is unaware of any amounts due to the Company and refutes this submission by the Respondent. On this point the Complainant in evidence stated that there was a double week paid in error to him but that he had repaid this debt by working longer shifts and coming in on extra days.

Complaint seeking adjudication under Section 12 of the Minimum Notice and Terms of Employment Act 1973, as amended.

The Complainant submits that as he was unfairly dismissed and was not provided with the notice period of 1 week to which he was entitled to under Section 4 of the Minimum Notice and Terms of Employment Act 1973, as amended, nor was he paid in lieu of the notice period.

CA-00034028-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977.

The Respondent submits that the Complainant left his place of work in an irate state and was not provoked into doing so. Mr B gave evidence that the Complainant approached him in a very heated state. Mr B denies that there was any connection between the incident of misidentification of a driver who used a van outside of hours and the subsequent verbal attack on him (Mr B), by the Complainant.  Mr B gave evidence that what the Complainant said was complete fabrication and that he never uttered words of “you’re sacked” or “fired” to the Complainant. He stated that the Complainant was shouting at him and took off his jacket in what he understood was an aggressive invitation to fight, from outside the gate.

Mr B submits that the statement of Mr C, which backs up his version of events, should be relied upon. Mr B gave evidence that Mr C had left the Company and that he could not be located to give evidence on the matter.  Mr B submits that he was expecting contact again over the next number of days after the altercation, but that there was no contact from the Complainant.

Mr B in evidence said that there was a woman employed in a Human Resources capacity, Ms D, who had no qualifications in the field, but whom Mr B in his own words referred to as doing the “hiring and the firing” for him, He also in evidence stated that there was a company handbook and a procedure, which were not exhibited at the hearing. He accepts in evidence that Ms D, may have spoken to the Complainant at some stage. He further submits in evidence that the Complainant was fiery in outlook in that he had to address a verbal altercation the Complainant once had with a customer.  

CA-00034028-002 complaint seeking adjudication under Section 6 of the Payment of Wages Act 1991, as amended.

The Respondent refutes the allegation that he had unlawfully deducted monies from the final wage of the Complainant. The Respondent stated that the deduction made was for time in lieu owed to the Respondent for overpayment of wages. The Respondent refutes the assertion by the Complainant that there never was an agreement whereby the Complainant would work back hours and that he had no such sight of any evidence of the Complainant doing so.

Complaint seeking adjudication under Section 12 of the Minimum Notice and Terms of Employment Act 1973, as amended.

The Respondent submits that as there was no dismissal and that instead the Complainant had resigned, that there was no case to answer under this piece of legislation.

CA-00034028-001 Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977:

In making my decision I must first determine whether a dismissal as defined under the Unfair Dismissals Act 1997, as amended occurred, and if that were the case, I must then determine if the Respondent acted reasonably and applied fair procedures in conducting the dismissal. The burden of proof primarily is on the Complainant to prove the fact of dismissal, and if that burden is discharged, the burden of proof then shifts to the Respondent to show that dismissal was carried out fairly.

The definition of “Dismissal” contained at section 1(a) of the Unfair Dismissals Acts 1977, as amended (the Act), states:

“(a) the termination by his or her 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;”

Regarding the investigatory and disciplinary process, employers must act reasonably and apply fair procedures in taking a decision to dismiss an employee. Section 6(7) of the Act provides:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.”

There is a clear conflict of evidence on what transpired in the office on 3 January 2020. The Complainant says that Mr B said, “Get Out, you’re done here, you’re finished.”  Mr B denied such words were used. He suggested they were a fabrication and that I should instead rely upon a signed statement of an employee purporting to support his version of events. The contents of such a statement must be examinable in such a serious matter as a pivotal point in determining the fact of dismissal. The author of the note was not in attendance and the Respondent gave evidence that he does know the whereabouts of the ex-employee.  A decision on the finding of fact is made here on the basis of the quality of the direct evidence. In that regard I found the evidence of the Complainant to be more convincing. I cannot find any other reason for the initial verbal altercation between the Complainant and the Respondent other than a driver being wrongly accused of driving a van out of hours. The Respondent in evidence said there was no connection between the said altercation and the misidentification of a driver for a wrongdoing. However, the Respondent gave no cogent reason as why there was a verbal altercation in the first place. I can only conclude that the Complainant’s version was correct. The Complainant also gave plausible evidence of contemporaneously telling colleagues, including Mr C, that he had been fired. The Respondent did not deny this even though he (Mr B) had subsequent discussions on the happenings with employees in close proximity.

The Complainant submits that without prejudice to its case, had the Respondent believed that the Complainant had resigned, it would have been best practice and appropriate to follow up with him and offer an opportunity to withdraw the resignation, particularly in circumstances where the Respondent alleges that the complainant was in "an irate state". 

On the issue of “heat of the moment” resignations or where events could be construed that there was a resignation, but that circumstances when studied further might suggest otherwise, the Labour Court have given guidance. In Millet v Shinkwin 2004 E.L.R. 319 The Court determined

 “That where an employee makes a decision to resign which is not fully informed because he/she is not in a position to fully evaluate his/her options or he/she may act on a misinterpretation of something which is said or done and the situation is still retrievable, it would be unreasonable for an employer to deny an employee an opportunity to recant within a reasonable time once the true position becomes clear and such a denial may in the circumstances amount to a dismissal.”

The Court in Millet gave further authority, amongst other cases, for coming to its decision in the following account. It relied upon Kwik-Fit (GB) Ltd v Lineham [1992] I.R.L.R. 156, the following passage appears at paragraph 31:

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment, personalities constitute an important consideration. Words may be spoken, or actions expressed in temper or in the heat of the moment or under extreme pressure (‘being jostled into a decision’) and indeed the intellectual makeup of the individual may be relevant (see Barclay [1983] I.R.L.R. 313). These we refer to as ‘special circumstances. Where ‘special circumstances’ arise, it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further enquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such enquiry is ignored at the employer's risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the ‘special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively.”

The Labour Court in Millet above is clear authority that when ambiguous words are expressed in a heated environment, the employer cannot just assume that someone has resigned even though words and actions could well indicate that such an action was taken. There is an obligation of further enquiry imposed upon the Respondent. Notwithstanding, my preference for the Complainant’s evidence in this instance case that there were words of signifying dismissal by the Respondent, the Respondent should have made further enquiry of the Complainant’s intentions. The evidence proffered by the Respondent showed that no further enquiry was made.

Having considered all the evidence and relevant legal precedents on the issue of the fact of dismissal, I am satisfied that the Complainant has discharged the burden place upon it and I find that there was a dismissal.

It is clear from the evidence that the Respondent did not use any fair procedures nor abide by any processes purportedly contained within an employee handbook therefore I conclude that the employer did not act reasonably within the provisions of section 6(7) of the Act. I therefore find that the Complainant was unfairly dismissed.

Redress:

Section 7 of the Unfair Dismissals Act 1977, as amended, in its relevant parts, provides:

7. Redress for unfair dismissal

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

…. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

[(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare (Consolidation) Act 2005 in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

…. (3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances pay and benefits in lieu of or in addition to pay.

The Complainant submitted a detailed statement on mitigation of loss and on actual loss, with attached payslips, in the following manner: 

·       04/01/2020 – 23/02/2020

Losses of Earnings in full amount of Gross Pay of €369.00 plus subsistence of €137.00 (Net

pay of €493 per week)

Losses for relevant period: Gross Pay Loss: €2,583

Subsistence Loss: €959 (forms part of financial loss)

Net Pay Loss: €3,451

24/02/2020 -28/5/2020

The Complainant was (and continues to be) employed by X Limited  

and earned €390.00 gross per week plus subsistence of €77.05

totalling net pay of €426.85 per week.

Losses for relevant period: Gross Pay – no loss- increase of €21 per week gross

Subsistence Loss: €59.95 per week x 13 weeks – €779.35

(forms part of financial loss)

Net loss: €66.15 per week x 13 weeks– €859.95

29/05/2020 to 12/2/2021

Complainant was (and continues to be) employed by X Limited and was earning gross pay of €195.00 plus subsistence of €77.05 totalling

net pay of €271.07 per week

Losses for relevant period: Gross Pay loss: €174 per week x 37 weeks - €6,438

Subsistence loss: €59.95 per week x 37 weeks -

€2,218.15 (forms part of financial loss)

Net loss: €221.93 per week x 37 weeks - €8,211.41

13/2/2021 to present

Complainant continues to be employed by X Limited and is now earning gross pay of €272.45 (net pay of €271.08) per week– see

Losses for relevant period: Gross Pay loss: €96.55 per week x 5 weeks to date -

€482.75 and ongoing

Subsistence loss: €137.00 per week x 5 weeks to date -

€685 and ongoing (forms part of financial loss)

Net loss per week: €221.92 x 5 weeks to date - €1,109.60 and

Ongoing.

The Complainant submits that net losses in total to date amount to €13,631.96. The Respondent raised the issue of the subsistence payment being included in the compilation of loss. The Complainant submitted that the subsistence payment of €137 per week was for unvouched expenses and was a set payment from the Respondent to enhance the weekly wage of the Complainant. I refer to section 7(3) above on the definition of financial loss where it states, “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal…. I am satisfied that the regular and constant subsistence payment of €137 per week constitutes actual loss. I also have to consider prospective loss. I estimate that the Complainant’s loss from the date of the hearing to 4 January 2022, two years after the dismissal, to be €5,474 thus giving a net loss total of €19105.96.  

I am also mindful that the Complainant contributed to a degree to the dismissal where it was common case  that there was a heated argument and also there was plausible evidence given by the Respondent that the Complainant was somewhat aggressive in the immediate aftermath when leaving the premises. I estimate that contribution by the Complainant to the dismissal to be 30% which is equivalent to €5731.  

Having regard to all the circumstances in this case, I consider that the Complainant is entitled to compensation of €13,400.

CA-00034028-002 complaint seeking adjudication under Section 6 of the Payment of Wages Act 1991, as amended.

Section 5 of the Payment of Wages Act, 1991, in its relevant parts provides:

 (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...

… (5) Nothing in this section applies to–

(a) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, where—

(i) the purpose of the deduction or payment is the reimbursement of the employer in respect of–

(I) any overpayment of wages, or

(II) any overpayment in respect of expenses incurred by the employee in carrying out his employment, made (for any reason) by the employer to the employee, and

(ii) the amount of the deduction or payment does not exceed the amount of the overpayment,

The Complainant submitted that he did not receive his full final week of pay in that the employer had made a deduction of €429. However, the Complainant admitted that he had received two weeks wages as overpayment but that he had paid that back by working excess hours to cover the this. The Respondent denied all knowledge of any agreement or added hours in lieu and contended that the Complainant owed him at least the deduction he had made in his final wage. Section 5(5) above makes it clear that a recovery of overpayment of wages is not covered by the Act. There is a burden of proof on the Complainant primarily to show some quantification of the overpayment and some detail on the added hours worked as satisfactory redemption of the debt owed. I find that the Complainant has not discharged the burden in this instance and I find that the complaint is not well founded.    

Complaint seeking adjudication under Section 12 of the Minimum Notice and Terms of Employment Act 1973, as amended.

Section 4 of the minimum notice sets out the relevant minimum statutory notice:

 (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week…

The redress provision at section 12 of the Act states:

 (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a dispute as to the entitlements of an employee under section 6 may include such directions as the adjudication officer considers appropriate.

I find that the Complainant was unfairly dismissed and was not provided with the notice period of one week to which he was entitled to under Section 4 of the Minimum Notice and Terms of Employment Act 1973. I direct that the Respondent pay the Complainant the sum of €493.00, the equivalent of the loss of one week’s net pay, for contravening the Act.    

CA-00034028-001. Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977:

I find that the Complainant was unfairly dismissed and I direct the Respondent to pay the Complainant compensation of €13,400.

CA-00034028-002. complaint seeking adjudication under Section 6 of the Payment of Wages Act 1991, as amended.

I find that the Complaint is not well founded.

CA-00034028. Complaint seeking adjudication under Section 12 of the Minimum Notice and Terms of Employment Act 1973, as amended.

I find that the Complainant was not provided with the notice period of one week to which he was entitled to under Section 4 of the Minimum Notice and Terms of Employment Act 1973. I direct that the Respondent pay the Complainant the sum of €493.00, the equivalent of the loss of one week’s net pay, for contravention of the Act.     

Unfair Dismissals Act 1977, Payment of Wages Act 1991, Minimum Notice and Terms of Employment Act 1973.