Investigation Recommendation Reference:  ADJ-00046803

Parties:

Dispute:

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Date of Hearing:              17/01/2024

Procedure:

In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute.

Background:

The Worker had a number of disputes and complaints regarding payment of wages and dismissal.

Summary of Workers Case:

The Worker was employed from 26th January 2022.  It was agreed his annual salary would be €45,000.  That means €3,340.20 net per month.   In February and March he worked two days a week.  In April he worked three days a week. May and June he worked four days a week and worked fulltime from July.  He received incorrect wages in May and in July he had to wait for eleven days to have his correct wage paid.   He told the company that this was causing him great difficulties as with three children and his wife having to look after them and bills being high.   August and September wages were correct.  In September he was called in to the office as he had received two speeding fines.  He was told to sign a piece of paper but he did not know what it was as it was handwritten and he could not read the writing.  He was not given a copy.  In October he was the victim of a hit and run.  Someone crashed into the back of his van and left the scene.  He was out sick for two months with no pay.  He stated that he was promised a raise in salary but this never came.  On 23rd December he got a call to go to a premises.  He was not paying attention and again received a speeding notice which arrived in January 2023.  When this came, he was called into the office again and dismissed.  They said that by his driving, he was a danger to society.  Then the manager offered him to come back working for two days with one of the sub-contractors, on a lower wage.  This was not acceptable to him.  He was eventually given just one week’s notice pay even though his employment contract said he would get 4 weeks’ notice.

Summary of Employer’s Case:

The Complainant commenced employment with the Respondent on 26th January 2022 as a Field Service Technician.  Although he was hired on a 39 hour week basis, at the outset of his employment, he requested to work two days a week, for family responsibilities reasons.  The Respondent accommodated this request.  A further accommodation was made for him to work three days a week in April and four days a week in May and June.  There were two unintended errors in the processing of his wages, which were mainly due to his switching days during the period.  For example he was paid full pay for March even though he only worked six days.  In July his wages were processed on the basis of reduced hours, but this was rectified in the first week in August.  

The Company does not have any formal record of the Complainant’s request for a pay increase and the manager in question no longer works for the Company.  However it is unlikely that a pay increase was sanctioned in August 2022 as the Complainant had only commenced in January 2022 and salary reviews are conducted on a 12 month basis.  It is likely that he was told by his manager that his salary would be reviewed in January as that would have tallied with the Respondent’s established position on salary reviews. 

At the time of the Complainant’s accident, the Respondent did not have a sick pay scheme.  It now pays statutory sick leave in line with requirements under the Sick Leave Act 2022.

Disciplinary issues

It is a strict requirement that Field Service Technicians have a valid driving license, as they are provided with a company van in order to undertake their role.  The Respondent takes driver safety and use of company vehicles very seriously.  The Complainant signed his acknowledgement and understanding of the Company policies on Safe Driving, What to do in the event of breakdown, The Law and Vehicle Driver Rules.  The Complainant was trained in Driver Safety Awareness and received a Certificate of Achievement on 3rd August 2022. 

The Complainant was invited to a disciplinary hearing on 22nd September 2022 to discuss a number of concerns that had been raised in respect of his driving.  These were itemised as follows:

• - Complaint by a member of the public in July 2022 - due to the Complainant driving erratically and sticking his finger up out the window at other drivers
• - Complaint by a member of the public in August 2022 – due to the Complainant driving northbound on the M50 – ironically this was on the same day that he completed his Driver Safety Awareness training
• - Complaint by an off-duty Garda on 2 September 2022 – this Garda said the Complainant was driving so erratically that had she been on duty, she would have impounded the vehicle
• - Receipt of three penalty points for speeding in the company van on 5th July 2022 – 132km in 100km zone.

At the disciplinary hearing the Complainant acknowledged he had engaged in dangerous driving.  The Complainant’s manager outlined how serious these driving issues were for the safety of Complainant and members of the public.   He advised the Complainant to think of his family and slow down.  He was given a final written warning and advised that should any further instances of dangerous driving arise this could result in his dismissal.  The Complainant was involved in an accident in October 2022 but he was not at fault.

The Respondent received another notice of penalty points incurred by the Complainant on 23rd December 2022 travelling at 132km in a 100km zone.  He was invited to a disciplinary hearing on 12th January 2023.  He acknowledged that he was speeding that day and was in the wrong.  He said his children were sick and he had been up since 5am that morning.  He knew it was serious and the next stage was dismissal.  He was dismissed by letter on 13th January 2023.  Even though this was a gross misconduct issue, being a “serious breach of health and safety rules which may endanger the lives of employees or other persons”, the Respondent paid the Complainant his statutory notice of one week.  It is acknowledged that the Respondent did not have an issue with the Complainant’s work, however it was required to take incidences of dangerous driving very seriously given the endangerment to himself and others.

In all of the circumstances it is the Company’s position that the Complainant’s dismissal was fair and reasonable due to driving a company vehicle in a manner that was dangerous and unsafe to himself and others.  He was given due warning in the earlier disciplinary process that any further infractions would result in his dismissal.

Conclusions:

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.

I recommend the Employer pays the Worker one week’s pay to mark an end to this dispute.  

Dated:   12-03-24

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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