Worker

Employer

Anonymised Parties

A van Driver

A Delivery Company

Representatives

  Self

HR Manager

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00043647-001

18/04/2021

The Worker commenced his employment on 18th May 2020. His employment transferred to the Employer on 8th June 2020 under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003. 

The Worker referred his claim to the Director General of the WRC on 18th April 2021.

The Worker submits as follows.

The Worker was hired as a van driver on 18th May 2020. His employment transferred to the Employer under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations, 2003 on 8th June 2020.

The Worker submits that on the commencement of his employment he was asked to sign a document which indicated that his rate of pay was €500 net per week. It was stated in the document that he would be required to work 50 hours a week Monday to Friday. It was custom and practice that this payment would increase to €525 net per week after three months of employment, which it did. The Worker submits that the document did not indicate what his level of productivity needed to be. The Worker submits that his payslips were stored electronically using a HR portal to which he had access. The payslips for the period prior to the transfer of undertakings were removed from the portal.

The Worker submits that after several weeks in employment, he checked his payslips and noticed that he was not paying any PAYE. He queried that with the Head of HR and Payroll by emails as he knew from his driver colleagues who were earning the same net income that PAYE was deducted from their salaries. The response he got was that he accumulated tax credits from  the start of the year. The Worker submits that he queried that with the Revenue at the time and was informed that the net amount on his payslips was reported to the Revenue as his gross pay. The Worker submits that it was obvious to him that the Employer reported a lower gross income level than that of his colleagues to take advantage of his personal accumulated tax credits. The Worker’s payslips toward the end of his employment showed various levels of gross salary not including overtime demonstrating how the gross salary level figure was manipulated to achieve the desired net result. The matter came to a head at the start of 2021. Since a new year started, the Worker’s tax credits were calculated on a week 1 basis from 1st January 2021 with no accumulated tax credit position as it was the start of the new year. The Worker submits that the last two payslips that he received were the only ones that showed the PAYE deductions and were for the pay periods 53 (pay date 30th December 2020) and pay period 1 (pay date 8th January 2021).

The Worker submits that at the start of the year, he accumulated 8 days holidays from the previous year as he had taken 3 days holiday from his 11 days accumulated. He worked the first week in the new year and then was asked to take 8 days leave. When he returned from his leave, he was called into the office and was dismissed. The reasons given were a downturn in business due to Brexit, a case of Covid-19 in the depot, and a lack of productivity. The Worker contends that, at no stage prior to the dismissal was it indicated to him that his performance was deficient in any way. In fact, he was asked to work overtime in the lead to Christmas period, working every Saturday starting on Saturday 7th November 2020. At Christmas he received a bonus of a €250 voucher and was thanked for the contribution he made as a frontline worker. There was no mention at the time that he was underperforming. There were no reports issued to him about his performance and no records were entered in his HR file on the portal about his performance.

The Worker submits that, shortly before he was dismissed, a new driver who resided in the area that the Worker was covering was hired. He was retained and it still in employment, but the Worker was dismissed even though the Worker had more service and the Worker’s role was still required. If his performance was the cause for the dismissal, then the Employer denied the Worker due process in failing to put in place an improvement plan or even identify to the Worker what the required target was with regard to productivity. The Worker contends that his productivity had been steadily improving from the time he started. The Worker contends that when the Employer had to start paying PAYE on his wages from 1st January 2021 the cost of PAYE meant that the correct level of gross remuneration had to be declared to the Revenue and this was the reason for the Worker’s dismissal.

The Worker noted that he received a very good reference from the Employer after the dismissal.

The Worker denied that he received an email from the Employer in relation to the meeting on 18th January 2021. He said that at the meeting he had no opportunity to respond. The Worker also contended that there was nothing in his contract about a probationary period the Employer relies upon.

The Employer submits as follows.

On 17th January 2021, an email was sent to the Worker asking to meet on Monday morning (18th January 2021) to discuss issues such as cost cutting, Brexit, productivity. The Employer submits that cuts had to be made and it met with the Worker to show transparency in respect of how it arrived with the decision to terminate his employment.

The Employer submits that the Worker was aware that there were performance issues. He was re-trained and one of the core, more experienced drivers engaged with the Worker to help him. The Employer submits that meetings took place between the Depot Manager and the Worker in relation to his performance but these were not formal and no minutes were taken.

The Employer confirmed that before the meeting on 18th January 2021, the Worker did not receive an agenda and was not informed of his right to representation. The Employer said that a decision had already been made in respect of cost cutting measures and the reason the Worker was chosen over anybody else was his performance. The Worker was not given the right to appeal the decision to dismiss him.  The Employer contended that the Worker was still on a probationary period. The Employer confirmed that the Worker was informed that he would be kept “on file” if any work becomes available in the future.

The Employer confirmed that there were some drivers employed on a fixed-term basis around the period from the Black Friday to Christmas. The Employer was not sure how many were employed.

In relation to the driver who was allegedly employed approximately 6 weeks before Christmas to cover the Worker’s route, the Employer said that it was not familiar with the details and had no information available in that regard.

Whilst an employee with less than twelve months of service is not covered by the Unfair Dismissals Acts, the fact that they may be on probation does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters. 

In its determination Beechside Company Ltd. T/A Park Hotel Kenmare v A Worker LCR 21798, the Labour Court found that:

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

… 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.

The Court is satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court is satisfied that he was denied natural justice.”

At the hearing, the Employer submitted that the Worker was dismissed because of the concerns with his performance he had been told about on several occasions. The Employer was unable to provide any documentation in relation to these conversations, their substance, or the outcomes. The Worker submitted that he was not aware of any performance issues. I note that the Letter of Reference dated 20th January 2020 provided by the Employer states that the Worker “committed himself to his work, and gave 100% at all times. He is a hardworking, dedicated, well manneredindividual, and will be an asset to any company. Unfortunately, with the uncertainty of Brexit, and a huge drop in our freight numbers we had to make very difficult decision to make cuts; with regret [the Worker] was one of them”. 

It appears from the submissions made at the hearing that the Worker in the herein case was not provided with details of any performance issues, he was not aware that he was in danger of losing his job, he was not afforded the right to representation. The Worker was not afforded a meaningful right of reply and was not afforded a right to appeal the decision to dismiss him.

The WRC and the Labour Court consistently emphasised that an employer is required to follow fair procedures before it makes a decision to dismiss a worker. If cost cutting measures were necessary, the Worker, like all other employees of the Employer, was entitled to fair procedures. In  the circumstances of this case, the Employer failed to observe fair procedures prior to arriving at its decision to terminate the Worker’s employment. I am satisfied that the Employer’s handling of the entire matter clearly breached the Worker’s right to fair procedures and natural justice.

I recommend that the Employer pays the Worker compensation of €5,000.   

Unfair dismissal - probation