Complainant

Respondent

Parties

Kevin  Neary

Big Red Barn Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

  Self

Michelle Quinn BL instructed by Michael Smyth West Lex Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00049343-001

24/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00049343-002

24/03/2022

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

CA-00049343-003

24/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00049343-004

24/03/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00049343-005

24/03/2022

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

CA-00049343-011

24/03/2022

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

CA-00049343-012

24/03/2022

This case is concerned with a number of facets of the Complainants employment-hours of work, breaks, statement of terms of employment and alleged unfair dismissal-all of which are denied by the Respondent.  The evidence of the parties was taken in relation to the issues as set out below and in the same sequence. The Complainant lead out on the claims regarding the elements related to his conditions of employment and the respondent lead out on the alleged unfair dismissal.

The Complainant was employed by the Respondent as a general operative from 1 April 2019 until the employment was terminated on February 14th, 2022. There is some dispute as to how the conversation went on that day. The Complainant alleges unfair dismissal at his home on that day without any pay in lieu of notice.

The Respondent gave as the wages €550 per week at the time of dismissal. When a pay slip was provided at the hearing this showed the gross pay as €440.11 taxable with €168.05 as subsistence and not therefore taxable. As a payment of subsistence suggest a payment when working and nontaxable to cover costs, the gross pay for the purposes of calculating any compensation is €440 based on the pay slip provided by the Respondent.

Note the CA numbers are those issued to the parties in advance of the hearing.

Complaints concerning Terms of Employment and Hours of Work

CA-00049343-001-Terms of Employment Information Act

The Complainant gave evidence that he never received any statement of his terms of employment. In response to the document submitted by the Respondent he questioned what was said to be his signature at the bottom of the document submitted to the WRC. In evidence, he did agree that he had received a copy of the staff handbook.

CA-00049343-002 Complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Persons Performing Mobile Road Transport Activities) Regulations 2012-S.I. No 36/2012

CA-00049343-004 Complaint under Section 27 of the Organisation of Working Time Act -Hours of Work

CA-00049343-005 Complaint under Section 27 of the Organisation of Working Time Act -Hours of Work

The complaints under the Organisation of Working Time Act are all linked to the claimant’s hours of work. In evidence the Complainant said he was teleporter driver and for the most part was transported to work by the foreman. He spoke of working on shows when extended working hours were the norm-up to 60 hours plus breaks were the norm, 65 hours when breaks were included. Those hours included travelling to and from jobs. His hours varied and often would not know what hours he would be working in advance.  In particular he described long hours of work on a job in Balmoral. He had no way of recording his own hours and, in response to the time sheets provided by the Respondent and referenced at the hearing, the Complainant said he never saw any timesheets in three years of working with the Respondent. Those timesheets were all prepared and signed by one person. In response to a question from the AO he confirmed that the longest hours that he was referring to were worked in 2019-pre Covid. During his employment he received three payslips-in 2020.

Complaints related to the termination of employment

Alleged Unfair Dismissal

CA-00049343-003

The Complainant gave evidence that on February 14th, 2022, he was working in Loughrea. A message was sent to the site that the managing director wanted them to get home early-which was very unusual. On his way home, the Complainant observed Donal Byrne twice at different junctions on the route. The Complainant denied giving permission for Donal Byrne to enter his property-and in his written statement to the WRC said the Respondent just drove in preventing the Complainant from closing his gate. Mr Byrne asked the Complainant to make him a cup of tea which he refused to do as he was living in a mobile home and felt uncomfortable. Mr Byrne then asked if he was stealing from him and he replied, no. Then, without his permission Mr Byrne started towards the Complainant shed where he began looking at items and then claiming they were his property. Mr Byrne then told him that from that point on he was not working for him.

Regarding the photographs provided by the Respondent, he strongly disputed the evidence regarding the flashing, and he noted in his response to the copies supplied post the hearing that the photographs were timed as taken at 17.05 whereas the Complainant did not arrive home that evening until after 6pm. The time the photos were taken means that someone was trespassing on his property and all of the photos were taken without consent. He challenged the evidence of the witness Damien-saying he could not have received the photographs taken by Donal Byrne by the time the Complainant rang him, and it was he the Complainant who rang Damien and others that evening telling them what Donal Byrne had done. He never admitted taking goods from the Respondent. In response to the Respondent representative, he agreed that some items on the list were not available for purchase on a retail basis, others might be. He denied in cross examination that he shook hands with Damien Byrne on the day.

The Complainant had a folder of receipts for goods which he had purchased. This showed that he bought his own materials except for those he received from a relative or through bartering. In response to the AO, he replied that the receipts in the folder did not match the goods he was accused of taking from the Respondent. 

Responding to the evidence regarding the tracker movements on the van said to be to and from his house, he rarely drove the company van and noted that there were no dates on the documents provided to the hearing.  

In response to the evidence of Mr Byrne, the Complainant stated that he had never received any verbal warning and gave an entirely different account of what had occurred regarding goods at the RDS.

In relation to the form of redress in the event of a finding of unfair dismissal, the Complainant said that in the circumstances his preference is for compensation. Following his dismissal, he was very unwell and needed to attend his GP. Asked about his efforts to obtain replacement employment, the complainant spoke of approaches to named people and putting his name with CPL. In response to the Respondent assertion that he worked for a named person and that evidence could be provided to support this assertion-the Complainant said he had done some work for that person as a form of trading. The Complainant stated that he is on job seekers benefit since his dismissal.

Complaints re non-payment of Minimum Notice and afford the Complainants rights under that legislation

CA-0049343-11 and 12

The Complainant seeks payment in lieu of notice as he was unfairly dismissed on 14 February 2022.

Note the CA numbers below are those issued to the parties in the notice of the hearing

Terms of Employment/Hours of Work

CA-00049343-001 Terms of Employment Information Act The Respondent submitted a document which they stated was given to the Complainant at the commencement of his employment and signed by him on 1 April 2019. The Complainant received both his core conditions and his full terms of employment in writing. There was no breach of the Act as the respondent had complied with Section 3(1A) and Section (4) of the Act and retained by the employer in accordance with section 3(5) of the Act. The document signed by the Complainant is either wholly compliant with the requirements of the Act, or where it falls short by way of error or omission, the Respondent relies on section 18. At no time during his employment did the Complainant seek a copy of his terms and conditions in writing.

Mr Donal Byrne Managing Director gave evidence that what normally happened when an employee started was there three days induction. They were given the statement of terms to sign and the handbook and other items re factories and safety etc. He recalled the documents being signed by Kevin Neary when he started-all three documents.

CA-00049343-002 Complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Persons Performing Mobile Road Transport Activities) Regulations 2012-S.I. No 36/2012

CA-00049343-004 Complaint under Section 27 of the Organisation of Working Time Act -Hours of Work

CA-00049343-005 Complaint under Section 27 of the Organisation of Working Time Act -Hours of Work

Mr Donal Byrne gave evidence on the hours of work of the Complainant. In 2019, the hours were 8-6 M-T and 7-5 Friday. There was a vote to change the hours to 7 – 4 30 and 7 – 3 30 Friday. He gave details of the meal and break arrangements. Under cross examination the witness denied the timesheets provided at the hearing were fictitious. They were filled in by admin. He accepted the Complainant did not fill in anything (on a timesheet).

CA-00049343-003 Unfair Dismissals Act 1977 Alleged Unfair Dismissal

The Respondent submitted a list of items with estimated values which they said were visible at the Complainants home on February 14th, 2022, based on the photographs taken on that day at his home. These were ten items to the value of €2505. In February 2022 it became apparent that some items were going missing from kit boxes. The van tracking system showed the company van being driven by the Complainant going to and from his house without permission. There was a company vehicle policy in June 2021 through which all employees were aware that there was a van tracking system in place. Evidence would be given that the Managing Director Mr Damien Byrne attended at the Complainants address on February 14th and saw a list of familiar looking items which also took photos of, and these were provided for review. Mr Byrne asked if the items were stolen from him. At first this was denied by the Complainant but then accepted he had saying he only ever took small items and never took any power tools. The employment relationship was terminated on this admission.

Mr Mike Casey Store Manager Gave evidence thathe worked in the stores and his role was to provide the kit boxes for each job-matching what was required for each job by the plans. More often than not he would provide 15-20% extra pieces to cover the job. One of the other lads would give him a hand. In January and February, he was getting reports of jobs being left short on consumables.  He expressed concern that it would look like he was not doing his job. There was an app to track things taken out-and as this app was not always successful there was a paper record. He reported the situation to management. The witness confirmed that a list described as TAB 2 was a list of items going missing at that time. Asked by the Complainant if he had ever seen him taking goods, the witness replied, no. He had never accused anyone, and he never saw anyone taking any of the goods which were short.

Mr Damien Waters Foreman gave evidence that he was aware of the shortages 3 to 4 weeks before the 14th of February. There were shortages from 4 to 5 jobs in a row. He was on holidays for the two weeks before February14th. On that evening the MD rang him and told him that the Complainant had admitted he had the material, and they shook hands-the discussion ended well. Asked by the Complainant if he was under pressure to give evidence against him-the witness replied, no.

Mr Donal Byrne Managing Director-summary of evidence -the witness gave evidence that there are 48 employees in the Company including temporary employee. The Complainant was hired as a GO and later became a teleporter driver. Asked if there was any previous disciplinary issue involving Mr Neary, he gave evidence of a previous incident involving Mr Neary in his first year of employment regarding goods taken from a named client premises which had to be returned. The store manager reported to him that goods were going missing, and they started to track them. When the foreman was on leave K had the van, there were shortages, and this coincided with the Complainant having the van. On the 11th he received a report that while on a job, the Complainant kept the van containing the goods for the job locked at all times. This was very unusual, so they decided it needed to be checked further. When the tracker was checked, they could see it went to the Complainants house without permission. That evening he followed the Complainant from the depot. When he went to the Complainants house, the Complainant opened the gate and the Respondent drove in and asked the Complainant if this was where he lived to which he relied yes. Mr Byrne asked for a cup of tea, but the Complainant was reluctant to do so. He asked could he stand into a shed and the Complainant agreed. There were two sheds and there he saw goods which he knew had come from his stores. He said to the Complainant look there are a lot of things here, which he also described to the hearing and that the working relationship would end there and then-he could not work for him again. He said he would pay him what he was due the next week and holiday pay. The Complainant put out his hand to shake hands-the witness said he was bit surprised at his reaction. After they shook hands, the witness left and heard no more form the Complainant after that evening.

CA-00049343-11 and 12 Minimum Notice and Terms of Employment Act 1973 Failure to pay Minimum Notice and failure to afford rights under that legislation

The Complainant was dismissed on grounds of serious misconduct and, as such, there was no entitlement to pay in lieu of notice. There was no breach of the legislation.

CA-00049343-001 Terms of Employment Information Act 1994 as amended (the Act).

Having examined the WRC complaint form signed by the Complainant and the statement of terms which the Respondent provided as being signed by the Complainant, I see no reason to decide that the signatures on both documents are those of the same person, the Complainant Mr Neary. However, there is equally no evidence that the Respondent physical provided a copy of said statement to the Complainant but rather the conclusion is that the Respondent retained the signed copy on file. The mere fact of the Complainant signing a document but then not being given a copy of that document does not meet the minimum requirements of the Act which, in plain terms, means that the Respondent is to give or arrange to give a copy of the statement to the employee concerned. A signature on that statement is not required by the Act-but the giving of the statement is clearly required.

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

In deciding on appropriate compensation, the fact that the Complainant did not seek the statement which it is found that he signed while in the employment is taken into account. Account is also taken of the fact that the Complainant did receive a staff handbook which sets out many conditions and policies including those of a disciplinary process.

Compensation of €100 is deemed appropriate in respect of the breach of the TE Act 1994 as amended.

CA-00049343-002 Complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Persons Performing Mobile Road Transport Activities) Regulations 2012-S.I. No 36/2012

CA-00049343-004 Complaint under Section 27 of the Organisation of Working Time Act -Hours of Work

CA-00049343-005 Complaint under Section 27 of the Organisation of Working Time Act -Hours of Work

Regarding the records provided by the Respondent, it is noted that the Complainant sought a review of records by the Inspectorate of the WRC in his complaint form.  Based on his own evidence at the hearing, I am satisfied that any valid complaint of excess working hours, insufficient breaks and inadequate notice of working hours, where they may have occurred, in 2019, prior to Covid and neither continued during Covid or resumed after the various closure notices were lifted.  Consequently, the complaints submitted for the period prior to March 2020 fall outside the reference period covered by complaints to be heard by an Adjudication Officer under the 2015 Workplace Relations Act which at Section 6 states as follows:

(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.

Section 8 referenced above is as follows:

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.

It follows from the above that any complaint about hours worked or breaks or notice of working hours comprehended by the Complaint fall outside the periods of time where such complaints must be submitted to the WRC for adjudication. They are therefore not considered further in these conclusions and will be deemed to be not well founded for the purposes of a decision under the redress provisions of the relevant legislation.

CA-00049343-003 Unfair Dismissals Act 1977 Alleged Unfair Dismissal

From the evidence on the Respondent side at the hearing, I am satisfied that there were shortages of goods noted within the goods supply side of the business, that these were reported to senior management and that they concluded the person involved with the shortages was indeed Mr Neary. Nothing emerged at the hearing which would suggest any motive for victimisation or deliberately selecting out Mr Neary other than a genuine belief linked to previous history concerning an earlier incident-while noting the different versions of that event. The Respondent would be reinforced in their view by the fact that following his departure from the Company, the problem of stock shortages ceased.

On the substance of the grounds for termination, there was a case for the Complainant to answer. While there are disputes as to whether the Complainant first agreed that the Respondent could enter his property and secondly look around and thirdly whether the Complainant admitted that he some of the goods on his premises were in fact ‘small things’, the property of the Respondent, two things are concluded with certainty. First, the Complainant was dismissed verbally at his house. Secondly, that the events of February 14th at the Complainants property represent an unqualified breach of any reasonable or usual procedures on the part of the Respondent. Those breaches occurred in effectively ambushing the Complainant on his private property concerning a work related matter where the Respondent had all but decided the Complainant was guilty ; taking photos of goods at his property at least once on the day in question without permission to do so or stating their purpose; failing to follow through on the events by putting any charges to the Complainant and allowing him the right to defend himself-instead summarily dismissing him and not affording him any opportunity to appeal the decision after February 14th.

No reasonable person could regard the actions of the Respondent as fair or reasonable. And as an adjudication officer, while recognising there was a genuine belief of a serious wrongdoing by the Complainant, I cannot accept that the methods adopted by the Respondent were such as to render the dismissal anything other than unfair on procedural grounds. There was no proper or fair investigation or disciplinary process, or appeal allowed. That said, on the balance of probability it is accepted that the Complainant did acknowledge some wrongdoing on his part at his house on February 14th and did not indicate to the Respondent that he considered the termination of his employment unfair. Nor did he contact the Respondent subsequently objecting in any way to what had occurred all of which suggest that he was not surprised by the decision of the employer in circumstances where his employer had seen goods, which he knew to be his own, at the Complainants home when he arrived there-albeit unannounced.  At the hearing, the Complainant failed to provide any plausible excuse as to how he could have come to be in possession of goods which he had access to in the course of his employment and which were not widely available on retail sale, or at all.

The redress appropriate in this case is the one item on which the items agreed at the hearing-that in the event of redress being considered justified, compensation is the only feasible alternative in the circumstances given the nature of the actions on both sides which resulted in the termination of employment and a complete breakdown of trust between them. In terms of the amount of redress, this will not be a substantial sum to reflect a) the contribution of the Complainant to the decision to dismiss and b) the lack of evidenced effort on his part to obtain alternative meaningful employment.

CA-00049343- 12 Minimum Notice and Terms of Employment Act 1973 (The Act) Failure to pay Minimum Notice and failure to afford rights under that legislation

Section 8 of the Act provides that: “nothing in this Act shall affect the legal right of anyemployer or employee to terminate a contract of employment without notice because of misconduct of the other party.”

As the Complainant was dismissed on grounds of (serious) misconduct the Respondent was not obliged to follow the terms of sections 4 or 5 of The Act as claimed by the Complainant.

CA-00049343-001 Terms of Employment Information Act

The complaint by the Complainant Kevin Neary against Big Red Barns Ltd under the Terms of Employment Information Act as amended, is well founded. The Respondent is to pay the Complainant €100 in compensation.

CA-00049343-002 Complaint under Regulation 18 of the European Communities (Road Transport) (Organisation of Persons Performing Mobile Road Transport Activities) Regulations 2012-S.I. No 36/2012

And

CA-00049343-004 Complaint under Section 27 of the Organisation of Working Time Act -Hours of Work

And

CA-00049343-005 Complaint under Section 27 of the Organisation of Working Time Act -Hours of Work

As each of these three complaints was submitted to the Workplace Relations Commission outside of the time limits provided for under Section 41 (6) and (8) of the Workplace Relations Act, I find they are not well founded.

CA-00049343-003 Unfair Dismissals Act 1977 Alleged Unfair Dismissal

The complaint of unfair dismissal brought by Kevin Neary against Big Red Barn Ltd is well founded. The appropriate redress in the circumstances of the case and the complete breakdown of trust between the parties is compensation. Taking into account all the circumstances including the contribution of the Complainant to the decision of the Respondent and his lack of effort in seeking alternative employment, €1000 compensation is to be paid by the Big Red Barns Ltd to Kevin Neary.

CA-00049343-11 and 12 Minimum Notice and Terms of Employment Act 1973 Failure to pay Minimum Notice and failure to afford rights under that legislation

These complaints submitted by Kevin Neary against Big Red Barn Ltd are not well founded.

Terms of Employment/Hours of work-breaches of OWT/Alleged Unfair Dismissal.