Complainant

Respondent

Parties

Luke  O'Regan

Advanced Distribution Logistics Limited (in Liquidation)

Representatives

Daithi O'Donnabhain Barry C. Gavlin and Son Solicitor

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-00036299-001

08/05/2020

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

CA-00036299-002

08/05/2020

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

CA-00036299-003

08/05/2020

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

CA-00036299-004

08/05/2020

The Complainant commenced work as a courier driver on 1 August 2018. His salary was €540 per week.  He submits that he was summarily dismissed by the Respondent on 25 February 2020 without proper cause and was denied proper procedures in contravention of the Unfair Dismissals Act 1977, as amended.  He is also seeking redress for loss of statutory notice under the Minimum Notice and Terms of Employment Act 1973. He further submits that the Respondent unlawfully deducted sums of money on two occasions contrary to the Payment of Wages Act, 1991.   

CA-00036299-001 Unlawful Deduction-Damage to Van:

The Complainant gave evidence that he had agreed with the Respondent that deductions would be made to his salary at the rate of €30 per week over approximately 10 weeks, for scratches he had caused in an accident where the estimated damage to a van was around €300. However, he discovered that an added deduction was made on his final salary of €640.00. This was accompanied by an invoice for damage to a van for a total of €1021.50. This invoice was exhibited by the Complainant. The Complainant stated that this was a van driven by a colleague in another accident which could not be attributed to him. He therefore believes that the €640 was an unlawful deduction. He accepts that he had agreed to the previous arrangement of €30 per week but that the deduction of €640 was unlawful.

CA-00036299-002 Unlawful Deduction – Missing Parcel

There was a further deduction of €100 in respect of a disputed amount which his employer stated was in respect of a parcel which went missing. The Complainant refutes that any such parcel went missing nor was it brought to his notice. He asserts that the scanning equipment is available, which is linked to a GPS system, which would show that all parcels that he handled were scanned at the identified geographical addresses.

CA-00036299-003 – Unfair Dismissal:

The Complainant stated that his working day was split between the morning and the afternoon, where deliveriesweremadeinthemorningtimeandthereaftertherecouldhavebeenastoppageorbreakof up to two hoursbetween1 p.m. and3p.m. every day. At 3p.m., he would have commenced his round for his collections before returning to the depot, as appropriate.

He stated he was allowed to keep his van at home and use it to travel to and from the Depot. However, he accepted that he was not allowed to use it for his own use outside of his working hours.

On the day of his dismissal a Manager approached the Complainant saying that he had been seen going on a local road on the previous week and asked him where he was going. The Complainant explained that he had to collect a bank card at his local bank branch and he did this during the course of his lunch break/downtime between 1p.m. and 3p.m. that day. The Manager stated that this is a task that he should have done in his private car. The Complainant pointed out that this was the first mention ever of a private car, and the bank in question was less than two hundred yards from his home, where he had gone to get his lunch. The Complainant said that it had never been raised as an issue with any other employee, nor as policy at any point in time, regarding the use of a company vehicle in such a manner. He pointed out to the Manager, giving an example of another employee who took the van home for four hours every day, that no issue was ever raised with him.

During the course of his delivery round, the Manager contacted the Complainant by phone and stated, "if you keep it up I will give you your notice" and thereafter the Complainant hung up the phone. The Complainant arrived back to the depot at approximately 4p.m. The Manager approached him, accompanied by a new driver at the depot, who was identified to him as a ‘Mediator’. The Manager requested this other person to witness the conversation. The Manager dismissed the Complainant forthwith.

The Complainant subsequently wrote to the company on the following day, 26 February 2020, seeking to appeal the decision and seeking to invoke any appeal process within the company. By reply of the 3 March no appeal or further consideration was granted to the Complainant and the dismissal was affirmed.

The Complainant testified that he was out of work for approximately six weeks since the dismissal. During that period, he found a difficulty in seeking alternative employment due to the Covid-19 pandemic. However, at the end of that period he took up employment with a courier firm at a higher rate of pay than his previous employment.

CA-00036299-004 – Minimum Notice:

The Complainant submits that he did not receive his minimum notice in contravention of the Minimum Notice & Terms of Employment Act 1973.

The Respondent did not attend the hearing.

CA-00036299-001, -002: Unlawful Deductions.

Section 5 of the Payment of Wages Act,1991 deals with the regulation of certain deductions made and payments received by employers. Its relevant part states:

(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 of an amount not exceeding the cost to the employer of the goods or services, and

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

CA-00036299-001-Damage to the Van.

The Complainant gave his prior consent for deductions to be made to his wages for damage that he caused, in what he described as a minor incident that resulted in scratching to the van. He agreed to a deduction of approximately €30 per week which amounted to a sum of €300. On cessation of his employment he was deducted a further €640 as the purported balance due on a bill furnished by the Respondent of €1021.50. The Complainant gave cogent evidence, albeit uncontested, that such a bill was for an accident a colleague had been involved in, and, to the best knowledge of the Complainant was in the process of being paid off by the same colleague.  I refer to section 5(2)(b)(v) above where it states:

(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,

I conclude, based on the evidence of the Complainant, that the sum of €640 deducted from the final wage of the Complainant, exceeded the amount of loss or cost of the damage to the van and I direct the Respondent to pay the Complainant the sum of €640 for the unlawful deduction from his wages.

CA-00036299-002-Missing Parcel:

The Complainant gave uncontested evidence that there was no contractual term nor custom and practice that he was aware of that held him liable for the value of a missing parcel, in this instance €100. He also gave evidence that any specific missing parcel was never brought to his notice therefore I find that the deduction of €100 for a purported missing parcel was in contravention of section 5 of the Payment of Wages and I direct the Respondent to pay the Complainant the sum of €100 for the unlawful deduction from his wages.

CA-00036299-003 – Unfair Dismissal:

Applicable Law:

Section 6 of the Unfair Dismissals Act 1977, as amended, (the Act) states, in relevant part, as follows:

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… (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

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 Acts 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.”

On the uncontested evidence of the Complainant, it was clear that the Respondent was deficient when it came to the application of fair procedures in making   the decision to dismiss. There was no investigation nor procedures of any kind used. The right to be heard is a fundamental component of fair procedure and the denial of this right to the Complainant, as envisaged under Section 7 of the Act, is unacceptable. 

Having considered all the circumstances of this case I conclude that the Respondent did not employ fair procedures in conducting the dismissal. Therefore, I find that the Complainant was unfairly dismissed.

The complainant has sought redress of compensation for unfair dismissal. The Complainant gave satisfactory evidence of attempting to mitigate his loss after dismissal. He took up similar employment at a higher rate of pay six weeks after his dismissal therefore I find his loss to be six-week net wages which I estimate to be €3,000.  I therefore direct the Respondent to pay the Complainant the sum of €3,000.

CA-00036299-004 – Minimum Notice:

Section 4 of the Minimum Notice and Terms of Employment Act, 1973 sets out the minimum notice period as follows:

(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,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

(3) The provisions of the First Schedule to this Act shall apply for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.

(4) The Minister may by order vary the minimum period of notice specified in subsection (2) of this section.

(5) Any provision in a contract of employment, whether made before or after the commencement of this Act, which provides for a period of notice which is less than the period of notice specified in subsection (2) of this section, shall have the effect as if that contract provided for a period of notice in accordance with this section.

(6) The Minister may by order amend or revoke an order under this section including this subsection.

I find that the Respondent contravened the Act by not providing minimum notice of one week. I direct the Respondent to pay the Complainant the sum of €540.

CA-00036299-001. Unlawful Deductions:

I find that the complaint was well founded for the reasons outlined above and I direct the Respondent to pay the Complainant the sum of €640.

CA-00036299-002. Unlawful Deductions:

I find that the complaint was well founded for the reasons outlined above and I direct the Respondent to pay the Complainant the sum of €100.

CA-00036299-003. Unfair Dismissal:

I find that the Complaint was unfairly dismissed for the reasons outlined above and I direct the Respondent to pay the Complainant compensation  of €3000.

CA-00036299-002. Minimum Notice:

I find that the Respondent contravened the Minimum Notice & Terms of Employment Act 1973 and I direct the Respondent to pay the Complainant the sum of €540.   

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