ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049148

Parties:

Complaints:

Date of Adjudication Hearing:  07/10/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 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 was dismissed from his employment as a taxi driver.  He submitted a complaint of unfair dismissal and 8 other complaints in relation to statutory employment issues as outlined.

Summary of Respondent’s Case:

The Complainant was employed as a Taxi Driver.  The contract of employment does not specify the hours but it was agreed verbally that the hours of work were 40 hours per week with optional extra hours as might be available at a rate of €12 per hour. This was a flat rate with no additional pay for weekend work or public holidays.

On occasions when the Complainant worked over these hours he expressly sought such extra hours.  It is not accepted that he worked a standard 57 hour week.

The Complainant was dismissed from his employment on 4th December 2023.  This arose on foot of an investigation by the employer of an incident which occurred in the workplace on 23rd November 2023 wherein the Complainant verbally abused another employee and threatened to “knock him the fuck out”.  Such was the Complainant’s serious conduct his employment was terminated with immediate effect to safeguard the welfare of the Respondent’s other employees. 

The said dismissal followed a period of suspension, during which the Respondent carried out an investigation speaking to the other individuals involved.  It was concluded that the Complainant was guilty of gross misconduct.  The Respondent also investigated another complaint about the Complainant’s conduct towards a female member of hospital staff when the Complainant was delivering a wheelchair.  It was contended that he was rude and abusive to her.  The Complainant was aware he was on suspension which coincided with holidays he was due to take that week.  During the investigation period, it came to light that the Complainant was now operating his own taxi business and a business card was in existence advertising this which demonstrates he set up his own taxi business when he was on suspension or immediately on being dismissed. 

Legal submissions were made on the right of the employer to dismiss in circumstances where the Complainant’s conduct constituted verbal abuse and a threat to inflict physical harm.

It is argued that if the dismissal is deemed to have been procedurally unfair, it was substantively fair.

Evidence on affirmation was given by the owner of the business, and by the employee who produces the rosters and by the employee whom it was alleged that the Complainant threatened. 

Summary of Complainant’s Case:

The complainant commenced employment as a Taxi Driver for the Respondent on the 21st day of July 2020. He was dismissed unfairly from his position in or around the 4th of December 2023.

On the 23rd of November 2023 the Complainant, while present on the Respondents premises was verbally abused by a member of staff over a misunderstanding about keys. The Complainant continued about his shift when he received three missed calls from his employer the Respondent at approximately 6pm. After he had unloaded the passenger, he returned the call and was told by his employer to drop the mobile phone down to the office and go home as his shift was over. The Complainant’s shift was not due to end until 4am. The Complainant was shouted at by the Respondent and accused of abusing a staff member. The Complainant was told to go home and that he would be spoken to on the next day.

The Complainants calls and text messages went unanswered by his employer on the 24th of November 2023. The Complainant rang the office and was told the owner was busy.

On the 25th of November the Complainant having heard nothing rang the office and was told he had been suspended.

On the 27th of November the Complainant was on booked on annual leave until the 5th of December. The Complainant emailed the Respondent during this period to ascertain what date to return to work and was told his employment had been terminated.

The Complainant began working as a taxi driver for the Respondent in July 2020. The Complainant did not receive a contract of employment despite requests for a period of 12 months. It was only after these repeated requests that a contract was received from the Respondent. Similarly, the Complainant did not receive adequate training or terms and conditions of employment despite the Respondent having a hospital contract which required moving wheelchairs regularly.

The Complainant was to be paid an hourly rate of €12.00 for on average a 57 hours week. The Complainant did not receive payment for his first week of working for the Respondent and was required to work a week “in hand”. The Complainant remains unpaid for this week of work.

The Complainant did not receive the correct compensation for working on Sundays during the course of his employment with the Respondent. The Complainant worked 4pm to 12am on Sundays for a period of 182 Sundays during the course of his employment with the Respondent.

The Complainant failed to receive his annual leave entitlements in 2020 and 2021. In 2022 the Complainant received one week of annual leave only. In 2023 the Complainant received four weeks of annual entitlement but failed to receive the correct rate. The Complainant received a basic pay of 40 hours per week when he worked on average 57 hours per week. The Complainant failed to receive annual leave entitlements of 9 weeks.

The Complainant has not received adequate or any payments for working on bank holidays or working a full week where a bank holiday fell. Similarly the Complainant alleges he did not receive his entitlements for Public Holidays during the course of his employment. During the period of the Complainants employment he failed to receive adequate or any remuneration for a period of 31 public or bank holidays.

The Complainants employment was unjustly terminated during his annual leave in December 2023 and he did not receive any payment or notice period for same.

The Complainant alleges that he would be allocated long journeys such as to Cork or Dublin and this could occur at the end of his shift leading to working long and unsafe hours and if he objected he was told “I was no use” or “you know where the door is” which is threatening behavior.

The Complainant alleges that he would be rostered for excessive hours taking for example October 2023 where he was rostered to work 56-59 hours per week.

The Complainant never received any night rate allowance for his work and was never assessed or offered assessment for health as a night worker during the course of his employment.

The Complainant did not receive payslips and had to request them from the Respondent. In 2023 there was a period of six months where the pay slips were not forthcoming.

Throughout the 3 and half year period of employment, the respondent, never gave any indication that the quality of work being done by the complainant was of a standard that would warrant dismissal.

The complainant disputes the facts of the allegations made against him and that these were of such a serious nature as to warrant dismissal. The complainant further contends that the manner of the dismissal denied him the right to fair procedures.

No investigation was undertaken by the Respondent. The Respondent failed to follow any or adequate procedures to protect the interests and employment of the Complainant. The Complainant was completely denied a voice in being dismissed.

The complainant was given no prior notice of either his suspension or termination. No procedures were outlined to him.

It is submitted that the grounds upon which the claimant was dismissed were frivolous. It is further submitted that the respondent did not consider all of the evidence available in coming to a decision to dismiss the complainant and therefore he was not afforded fair procedures.

Legal submissions were made on the legislation and code of practice on disciplinary procedures.          It is submitted that procedures were not followed in that the provisions for the statutory instrument of 2000 provides in relation to disciplinary action which may include:

An Oral warning

A written warning

A final written warning

Suspension without pay

Transfer to another task, or section of the enterprise Demotion

Some other appropriate disciplinary action short of dismissal

Dismissal

Generally, the steps in the procedure will be progressive, for example, an oral warning, a final written warning and dismissal. However, there may be instances where more serious action, including dismissal, is warranted at an earlier stage.

It is further submitted that the complainant’s conduct did not amount to conduct resulting in summary dismissal and he should have been afforded first an oral warning and secondly a written warning, procedures that are set out clearly in the Industrial Relations Act, 1990 (Code of Practise on Disciplinary Procedures) (Declaration) Order 2000. Instead, the respondent sought to jump straight to dismissal, skipping over the disciplinary process entirely.

Legal submissions were also made on suspension, proportionality and band of reasonableness.

Evidence was given on affirmation by the Complainant.  

Findings and Conclusions:

The complaints were received on 06/12/2023. 

Section 41 (6) of the Workplace Relations Act 2015 provides:

“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.

The cognisable period for consideration for these complaints therefore is from 07/06/2023 to 04/12/2023 at which time the employment ended.

CA-00060411-001  Unfair Dismissals Act 1977

The Complainant was dismissed for gross misconduct following an incident on 23/11/2023 in which the Respondent considered that the Complainant had verbally and physically threatened another employee.  There was much conflict of evidence about the exact wording the Complainant used in the alleged physical threat.   I note that when the Complainant rang the Respondent shortly after, he was informed verbally that he was suspended.  The evidence of the Respondent is that having then investigated the matter, he dismissed the Complainant on 04/12/2023.

The applicable law

Section 6 of the Act provides:

“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 of 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 of more of the following:

…..

(b) the conduct of the employee.

In deciding if the dismissal was unfair, it is not for me to establish the guilt or innocence of the Complainant, but rather consider whether the Respondent acted reasonably in the matter of the dismissal. 

The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that

“It is not for the Tribunal to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate, or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did..to do so would substitute our mind and decision for that of the employer…our responsibility is to consider against the facts what a reasonable employer would have done in the same position..”

In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing.  The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated:

“The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

In this instant case, I base my findings and conclusions on three key questions

 (1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation?

(2) Was there a fair investigation? and

(3) was the penalty proportionate? 

BHS v Burchall [1978] IRLR 379 is also one of the key decisions in Unfair Dismissal cases when considering a dismissal arising from misconduct.  

In that case, the Employment Appeals Tribunal determined that where misconduct is alleged, an employer has to genuinely believe that the employee is guilty, and has to have reasonable grounds for that belief, which must have been reached following a reasonable investigation.  The employer does not have to prove guilt to a criminal standard and does not have to adopt a procedure comparable to a criminal investigation.  Further it was not the role of the Tribunal to consider whether the employee was actually guilty of the alleged misconduct when deciding if the dismissal was fair.

In this instant case, I note that no exact wording of the alleged physical threat was agreed by any of the parties who gave evidence.  I note the Respondent moved to dismiss the Complainant on the word of the recipient of the alleged threats and a witness.  In the investigation, the Complainant had no opportunity to defend himself or put forward an explanation.  This was a flaw in the procedure or at best demonstrated a lack of procedures.  I therefore conclude that while the Respondent formed a belief that the Complainant was guilty of gross misconduct, this was not based on a fair investigation.  I uphold the complaint of unfair dismissal.  In relation to remedy, I find that the Complainant has not demonstrated sufficient attempts at mitigation of loss.  In fact from the evidence, it seems likely he set up his own business in the immediate aftermath.    It is also likely that the Complainant contributed substantially to the situation which led to his dismissal.     

I find compensation to be the appropriate and I award the Complainant the sum of €1,200 which I consider to be just and equitable in the circumstances.  

CA-00060411-002  Organisation of Working Time Act 1997

This complaint is that the Complainant did not receive compensation for Sunday working.

Section 14 of the Act provides:

14.—(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

(a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

I note there was no rate of pay in the Complainant’s written contract of employment.  I note the verbal agreement was for €12 per hour which to cover every hour worked including weekends. The Contract itself states the working week is from Monday to Sunday. In his evidence the Complainant stated that he raised this issue along with other aspects of his employment including annual leave and public holidays.   However, while I find the rate of pay was relatively low in relation to an average hourly rate for taxi drivers, there is no provision for a specific Sunday rate for that category of worker.  I note the evidence that a rate was agreed between the parties and therefore Sunday working could be deemed to be taken account of in the determination of his pay, as provided for in Section 14 of the Act.  I find the complaint to be not well founded.

CA-00060411-003  Organisation of Working Time Act 1997

This complaint is that the Complainant did not receive his statutory annual leave entitlement.

Section 19 (1) of the 1997 Act provides that  … an employee shall be entitled to paid annual leave (in this Act referred to as “ annual leave”) equal to—

( a) 4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment)”.

Section 20 (2) of the Act provides that payment for annual leave is based on the employee’s normal weekly rate.  The Complainant agrees that he received 4 weeks annual leave in 2023 but he contends that each week should have been based on 57 hours.  The employee who arranges the rosters and administration gave evidence that the Complainant was rostered to work on Thursday to Sunday.  He had been given an extra shift prior to a Day care contract being terminated.   She stated that 40 hour week was the norm.   

I find that based on the evidence, the Complainant received his statutory entitlement for 2023.  The complaint is not well founded.

CA-00060411-004  Organisation of Working Time Act 1997

This complaint is that the Complainant did not receive his statutory entitlement in respect of Public Holidays.

Section 21 of the Act provides:

“21—(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom”.

When an employee is not required to work on the public holiday, he or she is entitled to payment of one fifth of his or her normal weekly pay.  The Respondent’s evidence was that all is included in the rate, including holidays and public holidays and Sunday working.  While I note this was rectified in respect of annual leave and the Complainant received his statutory entitlement for 2023, no such rectification was carried out in respect of public holidays. There were 2 public holidays in the cognisable period – 7th August and 30th October 2023.  I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €240.

CA-00060411-005  Payment of Wages Act 1991

This complaint is that the Complainant did not receive his statutory entitlement to payment in lieu of notice.

The Complainant’s employment was terminated without notice.  Section 4 (2) (b) of the Minimum Notice & Terms of Employment Act provides that an employee with more than 2 years service and less than 5 years service is entitled to 2 weeks notice.  I find the complaint to be well founded and I require the Respondent to pay to the Complainant the sum of €960.

CA-00060411-006  Payment of Wages Act 1991

This complaint is that the Respondent withheld wages due to the Complainant in the period 23/11/2023 to 27/11/2023.

The evidence shows that on 27/11/2023 he received payment for 10.25 hours which presumably was in respect of hours worked on 23/11/2023.  The Complainant did not work on the following days and he was informed he was suspended.  There is no provision in law that compels an employer to pay an employee when he or she is suspended.   I find the complaint to be not well founded.

CA-00060411-007  E.C. Road Transport Regulations (Regulation 18)

This complaint refers to payment for public holidays.  This complaint is covered in findings above in CA-00060411-004.

CA-00060411-008  E.C. Road Transport Regulations (Regulation 18)

This complaint refers to the Respondent requiring the Complainant to work excessive hours.

I note that there was an extra shift prior to the loss of a Day Care facility contract and I accept the evidence of the Respondent that the Complainant’s normal working hours were 40-47 hours a week during the cognisable period.  I find the complaint to be not well founded.

CA-00060411-009  Organisation of Working Time Act 1997

This complaint is that the Complainant did not receive his statutory entitlement in respect of Public Holidays.  This complaint is covered in findings above in CA-00060411-004.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints  in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00060411-001  Unfair Dismissals Act 1977

I have decided that the complaint of unfair dismissal is well founded and I award the Complainant the sum of €1,200 which I consider to be just and equitable in the circumstances.  

CA-00060411-002  Organisation of Working Time Act 1997

I have decided that the complaint is not well founded.

CA-00060411-003  Organisation of Working Time Act 1997

I have decided that the complaint is not well founded.

CA-00060411-004  Organisation of Working Time Act 1997

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €240.

CA-00060411-005  Payment of Wages Act 1991

I have decided that the complaint is well founded and I require the Respondent to pay to the Complainant the sum of €960.

CA-00060411-006  Payment of Wages Act 1991

I have decided that the complaint is not well founded.

CA-00060411-007  E.C. Road Transport Regulations (Regulation 18)

This complaint is covered in findings above in CA-00060411-004.  I have decided it is well founded and I make no further award.

CA-00060411-008  E.C. Road Transport Regulations (Regulation 18)

I have decided that the complaint is not well founded.

CA-00060411-009  Organisation of Working Time Act 1997

This complaint is covered in findings above in CA-00060411-004.  I have decided it is well founded and I make no further award

Dated:   6-12-24

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Key Words: