ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00027062

Parties:

	Complainant	Respondent
Anonymised Parties	A Bus Driver	A Bus Company Owner

Representatives

IWU

Self Represented

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00034662-001	15/02/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00034662-002	15/02/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00034737-001	19/02/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00034737-002	19/02/2020

Date of Adjudication Hearing: 08/04/2022

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant alleged that he was not paid 600 Euros pay and as a result had to resign as he could no longer work for the Respondent and thus was constructively/unfairly dismissed.

Summary of Complainant’s Case:

The Complainants Representative stated that the Complainant was employed as a Bus Driver from 28/8/2018 to 3/2/2020 and that he was not paid for his last two weeks work amounting to 600 Euros pay.

The Union contacted the Owner and the Owner denied that he had not paid the Complainant and said he had left the money through the letter box. The Representative stated the wages was normally left on the Bus dashboard. He advised this way of making the payment, through the letter box, had not happened before and the Respondent was asked to not leave the money through the letter box.

The Representative advised there was no sign of a break in, no damage to the house, there was no one else living in the house and therefore the Complainant had no reason to report the issue to the Garda.

The Complainant advised he did have a dog, but the dog was always out the back garden and that the Respondents argument that the dog could have eaten the money was not valid as the dog was not in the house.

The Representative said there was a precedent for slow payment by the Owner and the Union had to write to him on behalf of the Complainant in December 2019 about 1,500 unpaid wages.

The Complainant had no choice but to resign immediately because he was not being paid and he was constructively dismissed as a result.

The Complainant accepts he got payslips for the period in dispute and that tax and PRSI has been paid for the relevant period.

The Representative confirmed that Complaint Reference Numbers CA-00034737-001 and CA-00034737-002 were duplicate complaints and were withdrawn.

Summary of Respondent’s Case:

The Respondent, who was self represented, read a detailed statement into the record.

The Complainant was employed from August 28th 2018 to Feb 3rd 2020 for 20/25 hours per week. He received his wages on a regular basis.

The Complainant also worked on a FAS scheme. The Complainant replied to an advert for a Bus Driver and he was interviewed and hired and given a description of the job and allowed bring the bus home and the job entailed picking up school children from various schools. After work the Complainant would park his bus and attend his FAS course, thus saving on fuel every week.

The Complainant was accommodated at short or no notice on holidays to attend various events i.e. the Ploughing Championship.

The Respondent employs up to 12 Drivers and all are paid weekly. Work hours are given to the Company Accountant and they calculate gross and net wages and the Drivers were previously paid in cash. In 2018 the Respondent informed all Drivers that Bank cash handing fees were too high and that calling round to them and paying them individually was too difficult and he wanted to change to paying directly into their Bank accounts. All Drivers agreed with this except the Complainant. He advised he would think about it. The Complainant passed the Owners house every week to fill his bus with diesel at company expense and the Owner understood the Complainant would call to the Owners house for his wages.

On receipt of the IWU letter, dated December 4th 2018, saying the Complainant had not been paid the Owner immediately rang the Complainant asking why he had not called to his house to collect his wages. After that they agreed he would get paid every 2/3 weeks. The Complainant was paid regularly after that either calling to the Owners house or in Kildysert at different locations or left in his bus.

On Jan 20th 2019 the Complainant rang the Owner to say he was finishing his FAS scheme on January 25th and told the Owner he would be finishing his employment with him also. The Complainant was asked why he was leaving as there was work for him. The Complainant said he was going to the Social Welfare office to discuss his options. The Owner called on January 21st to see what information the Complainant got from Social Welfare and the Complainant said he would keep him informed.

On January 23rd the Complainant rang the Owner and said he would not be able to drive on January 27th and 28th as he had a meeting in the Social Welfare office.

On January 25th the Complainant rang to say he would be able to drive the next week. The Complainant informed the Owner he was finishing on the FAS scheme and that the Complainant wanted to go back on it again and said he needed to be unemployed for 12 months before he could go back on the FAS scheme. The Owner said he had 40 hours work a week for the Complainant and the Complainant said he would think about it. The Complainant said he had spoken to someone about the ins and outs of the FAS scheme and he would think about it. The Owner thought everything was fine.

On January 31st the Owner rang the Complainant and got no answer. He stopped by the Complainants house on return from a job and the bus was there but the Complainant was not. The Owner stated he put the wages in the letter box. The Complainant rang the Owner about two hours later and the Owner told him where he had left the wages. The Complainant rang the Owner that night and said there was no money there and the Owner said he would call to the house the next day. On February 1st the Owner rang the Complainant and said he would call to the house but the Complainant said he was not there. He said to the Complainant report the loss to the Garda or the Owner would. The Owner reported the issue to the Garda that day.

On Sunday February 2nd the Complainant phoned the Owner and said he would not drive for him anymore and the Owner didn’t accept this, and the Complainant said he would drive Monday morning only. On Monday morning, February 3rd the Complainant rang the Owner and said the bus was parked outside a Community Hall and that the Owner was not to call to the Complainants house anymore. The Owner asked the Complainant had he reported the wages loss to the Garda and the Complainant told the Owner to mind his own business.

Findings and Conclusions:

Section 5 of the Payment of Wages Act 1991 states the following:

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

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

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

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

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

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

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

unless—

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

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

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

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

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

And

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

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

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

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

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

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

(4) A term of a contract of employment or other agreement whereby goods or services are supplied to or provided for an employee by an employer in consideration of the making of a deduction by the employer from the wages of the employee or the making of a payment to the employer by the employee shall not be enforceable by the employer unless the supply or provision and the deduction or payment complies with subsection (2).

(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,

(b) a deduction made by an employer from the wages of an employee, or any payment received from an employee by an employer, in consequence of any disciplinary proceedings if those proceedings were held by virtue of a statutory provision, or

(c) a deduction made by an employer from the wages of an employee in pursuance of a requirement imposed on the employer by virtue of any statutory provision to deduct and pay to a public authority, being a Minister of the Government, the Revenue Commissioners or a local authority for the purposes of the Local Government Act, 1941 , amounts determined by that authority as being due to it from the employee, if the deduction is made in accordance with the relevant determination of that authority, or

(d) a deduction made by an employer from the wages of an employee in pursuance of any arrangements—

(i) which are in accordance with a term of a contract made between the employer and the employee to whose inclusion in the contract the employee has given his prior consent in writing, or

(ii) to which the employee has otherwise given his prior consent in writing,

and under which the employer deducts and pays to a third person amounts, being amounts in relation to which he has received a notice in writing from that person stating that they are amounts due to him from the employee, if the deduction is made in accordance with the notice and the amount thereof is paid to the third person not later than the date on which it is required by the notice to be so paid, or

(e) a deduction made by an employer from the wages of an employee, or any payment received from an employee by his employer, where the employee has taken part in a strike or other industrial action and the deduction is made or the payment has been required by the employer on account of the employee's having taken part in that strike or other industrial action, or

(f) a deduction made by an employer from the wages of an employee with his prior consent in writing, or any payment received from an employee by an employer, where the purpose of the deduction or payment is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employee to the employer, or

(g) a deduction made by an employer from the wages of an employee where the purpose of the deduction is the satisfaction (whether wholly or in part) of an order of a court or tribunal requiring the payment of any amount by the employer to the court or tribunal or a third party out of the wages of the employee.

(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.”

The Law regarding dismissal;

Section 1 of the Unfair Dismissals Act, 1977 defines a dismissal which is commonly termed constructive dismissal in the following manner “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”

Section 6(1) of the Act states “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.”

Redress for unfair dismissal.

7.— (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

a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(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 17of 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

(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”

Findings and Conclusions

The Complainant resigned his position on February 3rd 2020 and sought reinstatement as the appropriate remedy for his complaint of unfair dismissal.

No letter of resignation was provided to the Hearing. Neither had the Complainant raised any such contention of termination of employment prior to his resignation. The Complainant has, in his Representatives submission to the Hearing, set out a narrative describing both a prior incidence of slow/non-payment which seems to have been resolved and non-payment of 600 Euros to support his contention that he was left with no alternative but to resign his position.

There were two vastly different versions of events presented to the Hearing by the Parties. On one hand the Complainant says he never got the wages and the Respondent advised that he put it in through the Complainants letter box at his house. So, the decision for the Adjudicator is which version of events is the more persuasive. Both parties declined the opportunity to give evidence on Oath and be subject to cross examination, relying solely on their statements. The Respondent gave evidence of the payslips for the period (which was accepted had been received) and it was also accepted that tax and PRSI had been paid for the period in dispute. The Respondents main argument was that the Complainant contrived this dispute to terminate his employment to be eligible to return to Fas support schemes.

At the Hearing it emerged that the Complainant did not have a written contract of employment and no grievance procedure existed. However, this is not critical in the assessment of the complaints.

The core issue is that the Complainant must succeed in his Payment of Wages complaint to have any grounds for his Constructive/Unfair Dismissal compliant. With regard to the Payment of Wages complaint, on the Complainants side is there was no evidence of a receipt or a bank transfer for the payment due. On the Respondents side there were the payslips, the history of making payment in cash in various ways and the fact the Owner immediately notified the loss to the Garda, thus commencing a criminal investigation into the issue.

Having considered all the submissions, I attach some small degree of relevance to the Complainants lack of willingness to provide direct evidence under Oath to the Hearing and the unusual situation, in the circumstances of the allegation of not being paid, where he has sought Reinstatement as a remedy for Unfair Dismissal. This does not sit comfortably with his allegation that he was not paid and was in such disagreement with the Owner that required him to leave employment immediately.

Both Parties versions of events, in isolation, could be believed but as Adjudicator , under the laws, I have to make a Decision on the complaints with the evaluation of the evidence (or lack of) presented. The Owner is not bound by law to give a receipt but it sure is prudent to do so and evidence of payment is normally provided by a bank transfer receipt. The Complainant choose not to be paid by bank transfer, which is fair enough, but then he was increasing the risk of issues arising regarding receipt of payment, especially in the many ways he choose to receive his cash. It is also strong evidence that it was the Owner who choose to report the loss to the Garda and not the Complainant. The Owner also had a much more detailed recollection of events leading up to the ending of the employment relationship than that offered by the Complainant.

I find that the Respondents version of events was more persuasive than the Complainants regarding the payment of wages complaint. The primary basis for this conclusion is that the Respondents arguments were more coherent, he had evidence of payslips, the various ways the cash had been paid in the past, the notification to the Garda of the loss and his arguments re why the Complainant may have wanted to cease employment were considered and more convincing than the Complainants version of events.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. I find that the Complainants complaint under the Payment of Wages Act 1991 (ADJ-00034662-001) is not well founded.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim (ADJ-00034662-002) consisting of a grant of redress in accordance with section 7 of the 1977 Act. I find that the Complainant was not unfairly dismissed.

Complaint Reference Numbers CA-00034737-001 and CA-00034737-002 were duplicate complaints to the above complaints and were withdrawn by the Complainant Representative at the Hearing.

Dated: 13th April 2022

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Unfair Dismissal