ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00028615

Parties:

	Complainant	Respondent
Parties	Martin Duffy	McHugh Express Limited

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

Hickey Coghill Solicitors

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00036519-001	04/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00036519-002	04/06/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00036519-003	04/06/2020

Date of Adjudication Hearing: 17/02/2023 & 06/10/2023

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint 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.

The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings.

Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. Where submissions were received, they were exchanged. A number of dates had been scheduled for the hearing and postponements or adjournments granted. The hearing proceeded on 17/02/2023 and the complainant gave some evidence under affirmation and the hearing was adjourned. The complainant did not attend the hearing on 06/10/2023. Mr Brendan McHugh gave evidence under affirmation and attended the hearing on 17/02/2023 and 06/10/2023.

Background:

The complainant submitted that he was unfairly dismissed, that he did not receive terms and conditions and that monies are owed. The complainant did not attend hearing on 06/10/2023.

Summary of Respondent’s Case: CA-00036519-001

It was submitted the complainant commenced on 20/03/2018 with Company A and when the respondent received the contract on 01/08/2019 the complainant’s employment transferred over and his employment ended on 06/12/2019. It was submitted that the complainant appeared to struggle with some aspects of his job and on 23/08/2019 assistance was given to him. It was part of the job that employees had garda vetting and the complainant who was aware of this necessity did not complete all the elements of garda vetting that was necessary. All other employees completed their garda vetting without difficult. The complainant started his workday later than other employees despite being told to start deliveries by 9am. Employees were allowed to bring home their van but not allowed to use it for personal use and if a driver did want the van for personal use, then they needed to ask permission for a specific journey which the complainant and others had done. The respondent became aware in September/October that the complainant was using the van for personnel use and was reminded of the respondent’s policy. In early October 2019 the complainant had an accident in the van but did not report it till 21/10/2019. On 14/10/2019 he asked for and received a week’s annual leave commencing on 21/10/2019 and returning on 29/10/2019. The complainant had been expected to return the van on 18/10/2019 along with the company phone but did not do so. The van was returned by him on 20/10/2019 and the phone returned on 23/10/20219.

The respondent wrote to the complainant on 25/10/2019 raising a number of issues and inviting him to a disciplinary meeting and wrote again on 26/10/2019 and sent him text messages. He was invited to attend disciplinary on 05/11/2019 but decided not to attend, and this meeting was rescheduled to 07/11/2019 and again scheduled for 08/11/2019 and he refused again to attend. As the complainant refused to attend, he was suspended without pay.

An investigation was carried out regarding the personal journeys he had taken in the van, the damage to the van, the failure to notify the company about the van, the failure to return the van, and phone upon commencement of leave, the failure to engage with securing garda vetting and failure to start work promptly at 9am.

The complainant continued to refuse to attend any of the meetings and the company had no option but to investigate without his attendance. It was determined there was significant breaches of contract and performance issues as well as breach of trust and a breakdown in the employer and employee relationship. The company found that they had grounds to dismiss him and served him notice and paid him €1,730.94 including 16 annual leave days. It was submitted that the correct test was whether it was reasonable to dismiss him and that it was.

Case law cited included Adj-000277151, Adj-00025005, British Leyland UK v Swift and Irish Banks plc v Purcel 23 ELR 189.

Mr McHugh gave evidence that the complainant had received relevant monies and no other employees raised issues regarding the runs in the van that they had to do. Mr McHugh gave evidence that in March 2018 the complainant would have received terms of employment when he started. He denied that ever shouted at the complainant and denied that there was unfair delegation of duties and responsibilities and denied that the complainant got difficult runs. He said that the employees used an app that make the routes easier and that the complainant received information on how to use the app and that everyone who uses it finds it beneficial. He said the complainant was told to take his breaks.

He denied that there were any aggression or intimidation of the complainant and that the complainant did not leave the van back and would have been expected to leave the van back. He said he had been good to the complainant and when his family member was unwell, he let the complainant use the van. He denied that the complainant was bullied and denied that there was a breach of any information to the garda. He said that a disciplinary was commenced owing to personal journeys by the complainant without permission, damage to the van of an estimated value of €1,797, not returning the van, not completing garda vetting, not starting deliveries on time, and not attending disciplinary meeting. He said a hotel had been booked and the complainant said on the first 2 occasions that he would not attend and he wouldn’t take part. Mr McHugh said that they advised the complainant that an external person had been proposed for the meeting on 08/11/2019 and that the complainant said that this was a good idea. He said the complainant was sent the bullying and harassment policy on 06/11/2019. The respondent no longer had trust or confidence in him as he would not engage with them and that the complainant did not appeal the decision and that it was gross misconduct in the opinion of Mr McHugh.

In answer to questions from the AO Mr McHugh said that the behaviour of the complainant surprised him and that he had never taken the van before when on holidays and that the complainant never told the respondent about the accident that the complainant had with the company van. He said the complainant would not engage with the disciplinary process and that the sanction of suspension without pay was implemented as a precursor to dismissal. He said that it was not a conscious decision not to mention an appeal process when the complainant was dismissed.

Summary of Complainant’s Case: CA-00036519-001

The complainant attended the hearing on 17/02/2023 and did not attend the hearing on 06/10/2023.

In his complaint form the complainant submitted that he was unfairly dismissed following suspension with pay on either the 28th, 29th or 30th of Oct 2019 on foot of a malicious disciplinary process. He submitted that two weeks later when he did not back down he was suspended without pay for three weeks.

The complainant gave evidence on the first day of the hearing that it was not possible to say what his salary was and that it was not possible to give details of the nature of his unfair dismissal and that to be afforded the best opportunity to present his complaint he needed a copy of all personnel data from the respondent and that it was not possible to say what monies were owed. He said he was unfairly dismissed and there were no procedures in place and he was never told the reason and was suspended without pay. He said that he had received no contract and no procedures and no holidays. He said he was refused meetings and refused information and had secured another job and loss was incurred between 06/12/2019 and 01/04/2020. He said his sister passed away before Christmas but that he needed more information before he proceeded with his evidence regarding his complaints.

Under cross examination with regards to mitigation of loss the complainant said he had made phone calls regarding securing new employment and that he had received social welfare. He would not comment on whether he was good or not at communicating through emails and could not confirm or deny regarding how many phone calls he made regarding new employment.

Findings and Conclusions: CA-00036519-001

A complaint was received by the Director General of the Workplace Relations Commission from the complainant on 04/06/2020. The said dispute was referred to me for investigation. A hearing for that purpose was held on 17/02/2023 and parties were advised to submit further information. Another hearing was scheduled for 06/10/2023 and there was no appearance by the complainant and the respondent did attend. I am satisfied that the complainant was informed in writing of the date, time, and place at which the hearing to investigate the complaints would be held and did not attend.

It was not disputed that the complainant had been dismissed 0n 06/12/2019. The complainant at the first date of the hearing submitted that the dismissal was unfair, that he required further information and gave evidence with regards efforts to mitigate his loss and did not attend the second date of the hearing. The respondent submits that the complainant failed to provide details regarding his complaints and submitted that they were left with no alternative but to terminate the complainant’s employment.

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “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.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

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 qualification 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 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.

Section 6(6) of the Act states as follows:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal.

Section 7 of the Act, in relevant part, makes provision as follows:

(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….

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal

Mr McHugh gave evidence around several incidents that occurred with the complainant that resulted in the commencement of an investigation and that the complainant failed to engage in the process. It was unclear from the correspondence exchanged between the parties during this time what exactly were the difficulties that the complainant had with the process - if any. I note that the complainant made a complaint of bullying, but it remained unclear from the correspondence exchanged why he failed to attend the investigative meetings, and I note that the complainant was ultimately dismissed owing to gross misconduct.

The correct test is: “Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably takes a different view.” British Leyland UK ltd v Swift [1981] IRLR 91.

This test has been applied consistently in Irish law, most notably in Bank of Ireland v Reilly [2015] IEHC 241 in which agreement was expressed with the approach taken by Judge Linnane of the Circuit Court in Allied Irish Banks v Purcell [2012] 23 ELR.

There was significant exchange between the parties on the first day of the hearing regarding what documentation was required. Parties were facilitated with a second date for the hearing and clear instructions on what documentation was to be provided in advance of the next hearing date. Some of this documentation was received from parties in advance of hearing date of 06/10/2023 but the complainant failed to attend to advance his complaints. In the circumstances of the instant case, as outlined above, and taking note that the complainant failed to attend the second date of the hearing and I only have the evidence of the respondent regarding the substantive issue, and the complainant failed to engage in the investigative and disciplinary process I find that the respondent has met the burden required with regards to what a reasonable employer would do and that the dismissal in all the circumstances is fair and I dismiss the complaint.

Summary of Complainant’s Case: CA-00036519-002

The complainant attended the hearing on 17/02/2023 and did not attend the hearing on 06/10/2023.

In his complaint from the complainant submitted he had a number of complaints about payment of wages which he will set out in detail at the hearing including unlawful deductions, subsistence, non-payment or underpayment of holiday pay, non-payment at weekends and brought vehicle to the garage, underpayment of wages.

Summary of Respondent’s Case: CA-00036519-002

It was submitted the complainant commenced on 20/03/2018 with Company A and when the respondent received the contract on 01/08/2019 the complainant’s employment transferred over and his employment ended on 06/12/2019. It was submitted that the complainant appeared to struggle with some aspects of his job and on 23/08/2019 assistance was given to him. It was part of the job that employees had garda vetting and the complainant who was aware of this necessity did not complete all the elements of garda vetting that was necessary. All other employees completed their garda vetting without difficult. The complainant started his work day later than other employees despite being told to start deliveries by 9am. Employees were allowed to bring home their van but not allowed to use it for personal use and if a driver did want the van for personal use then they needed to ask permission for a specific journey which the complainant and others had done. The respondent became aware in September/October that the complainant was using the van for personnel use and was reminded of the respondent’s policy. In early October 2019 the complainant had an accident in the van but did not report it till 21/10/2019. On 14/10/2019 he asked for and received a weeks annual leave commencing on 21/10/2019 and returning on 29/10/2019. The complainant had been expected to return the van on 18/10/2019 along with the company phone but did not do so. The van was returned by him on 20/10/2019 and the phone returned on 23/10/20219.

Case law cited included Adj-000277151, Adj-00025005, British Leyland UK v Swift and Irish Banks plc v Purcel 23 ELR 189.

He denied that there were any aggression or intimidation of the complainant and that the complainant did not leave the van back and would have been expected to leave the van back. He said he had been good to the complainant and when his family member was unwell, he let the complainant use the van. He denied that the complainant was bullied and denied that there was a breach of any information to the garda. He said that a disciplinary was commenced owing to personal journeys by the complainant without permission, damage to the van of an estimated value of €1,797, not returning the van, not completing garda vetting, not starting deliveries on time and not attending disciplinary meeting. He said a hotel had been booked and the complainant said on the first 2 occasions that he would not attend and he wouldn’t take part. Mr McHugh said that they advised the complainant that an external person had been proposed for the meeting on 08/11/2019 and that the complainant said that this was a good idea. He said the complainant was sent the bullying and harassment policy on 06/11/2019. The respondent no longer had trust or confidence in him as he would not engage with them and that the complainant did not appeal the decision and that it was gross misconduct in the opinion of Mr McHugh.

Findings and Conclusions: CA-00036519-002

The complainant submitted on his complaint form that he had a number of complaints about payment of wages and that he would set them out in more details at the hearing. At the first date of the hearing he submitted that he needed further information and another date was scheduled for 06/10/2023 and that the complainant did not attend. Mr McHugh in evidence denied that there was any monies owed.

Section (6) provides that where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.

For a breach of the Act to occur, the wages must be properly payable within the cognisable period. The complainant did not advance his complaint at the hearing that there was monies properly payable to him and Mr McHugh for the respondent denies that there are monies owed.

I find, therefore, that the complaint is not well founded and I dismiss the complaint.

Summary of Complainant’s Case: CA-00036519-003

The complainant attended the hearing on 17/02/2023 and did not attend the hearing on 06/10/2023.

In his complaint form the complainant submitted that did not receive a written statement of employment.

Summary of Respondent’s Case: CA-00036519-003

It was submitted the complainant commenced on 20/03/2018 with Company A and when the respondent received the contract on 01/08/2019 the complainant’s employment transferred over, and his employment ended on 06/12/2019. It was submitted that the complainant appeared to struggle with some aspects of his job and on 23/08/2019 assistance was given to him. It was part of the job that employees had garda vetting and the complainant who was aware of this necessity did not complete all the elements of garda vetting that was necessary. All other employees completed their garda vetting without difficult. The complainant started his workday later than other employees despite being told to start deliveries by 9am. Employees were allowed to bring home their van but not allowed to use it for personal use and if a driver did want the van for personal use, then they needed to ask permission for a specific journey which the complainant and others had done. The respondent became aware in September/October that the complainant was using the van for personnel use and was reminded of the respondent’s policy. In early October 2019 the complainant had an accident in the van but did not report it till 21/10/2019. On 14/10/2019 he asked for and received a week’s annual leave commencing on 21/10/2019 and returning on 29/10/2019. The complainant had been expected to return the van on 18/10/2019 along with the company phone but did not do so. The van was returned by him on 20/10/2019 and the phone returned on 23/10/20219.

Case law cited included Adj-00027151, Adj-00025005, British Leyland UK v Swift and Irish Banks plc v Purcel 23 ELR 189.

Mr McHugh gave evidence that the complainant had received relevant monies and no other employees raised issues regarding the runs in the van that they had to do. Mr McHugh gave evidence that in March 2018 the complainant would have received terms of employment when he started. He denied that ever shouted at the complainant and denied that there was unfair delegation of duties and responsibilities and denied that the complainant got difficult runs. He said that the employees used an app that make the routes easier, and that the complainant received information on how to use the app and that everyone who uses it finds it beneficial.

He denied that there were any aggression or intimidation of the complainant, and that the complainant did not leave the van back and would have been expected to leave the van back. He said he had been good to the complainant and when his family member was unwell, he let the complainant use the van. He denied that the complainant was bullied and denied that there was a breach of any information to the garda. He said that a disciplinary was commenced owing to personal journeys by the complainant without permission, damage to the van of an estimated value of €1,797, not returning the van, not completing garda vetting, not starting deliveries on time, and not attending disciplinary meeting. He said a hotel had been booked and the complainant said on the first 2 occasions that he would not attend, and he wouldn’t take part. Mr McHugh said that they advised the complainant that an external person had been proposed for the meeting on 08/11/2019 and that the complainant said that this was a good idea. He said the complainant was sent the bullying and harassment policy on 06/11/2019. The respondent no longer had trust or confidence in him as he would not engage with them, and that the complainant did not appeal the decision and that it was gross misconduct in the opinion of Mr McHugh.

Findings and Conclusions: CA-00036519-003

The complainant submitted on his complaint form that he did not receive a written statement of employment. At the first date of the hearing, he submitted that he needed further information, and another date was scheduled for 06/10/2023 and that the complainant did not attend. Mr McHugh in evidence submits that the complainant did receive a contract when he commenced employment in 2018 and that the letter of 7/11/2019 refers to the contract.

Section 3 detailed that “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 …particulars of the terms of the employee’s employment…”

The complainant did not attend to advance this aspect of his complaint and I note the undisputed evidence of the respondent and documentation referring to a contract and I find that the complaint is not well founded, and I dismiss the complaint.

Decision:

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

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00036519-001

I find that the dismissal in all the circumstances is fair and I dismiss the complaint.

CA-00036519-002

I find, that the complaint is not well founded and I dismiss the complaint.

CA-00036519-003

I find that the complaint is not well founded and I dismiss the complaint.

Dated: 08/05/2024

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Unfair dismissal, terms and conditions, complainant did not attend