ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045471
Parties:
| Complainant | Respondent |
Parties | Shane Guilfoyle | Anglo Irish Refrigeration |
Representatives |
| Peninsula |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00056273-001 | 24/04/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00057066-001 | 10/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00057066-002 | 10/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00057066-003 | 10/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00057066-004 | 10/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057066-005 | 10/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057066-006 | 10/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057066-007 | 10/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057066-008 | 10/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057066-009 | 10/06/2023 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00057066-010 | 10/06/2023 |
Date of Adjudication Hearing: 10/04/2024
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, and/or Section 8 of the Unfair Dismissals Acts, 1977 - 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 & Adjudicator’s Note:
The complainant lodged fifteen claims as follows, eleven of which fall to be dealt with in this decision:
CA-00056273-001. Payment of Wages Act. CA-00057066-001. Unfair Dismissals Act, 1977. CA-00057066-002. Terms of Employment (Information) Act, 1994. CA-00057066-003. Payment of Wages Act. CA-00057066-004. Redundancy Payments Act, 1967.
CA-00057066-005, CA-00057066-006, CA-00057066-007. CA-00057066-008. CA-00057066-009, CA-00057066-010. Organisation of Working time Act, 1997.
At the first hearing on February 6th, 2024, submissions and evidence were concluded on the following cases.
CA-00057066-002. Terms of Employment (Information) Act, 1994. There was evidence that the complainant received a signed a statutory statement and my decision on this is below.
CA-00057066-003. Payment of Wages Act was withdrawn at the first hearing, but the complainant changed his mind and re-instated it for the second hearing, and it is fully addressed below.
CA-00057066-004. Redundancy Payments Act, 1967. This complaint was withdrawn as the complainant had not been made redundant.
CA-00057066-008. Organisation of Working time Act, 1997. This was a complaint related to the loss of future annual leave entitlement for which there is no statutory basis and my decision on this is below.
The second hearing on April 19th, 2024, concluded the hearing of submissions and evidence on CA-00057066-001, Unfair Dismissals Act, 1977 and CA-00056273-001, Payment of Wages Act, relating to an alleged unlawful deduction from wages.
The remaining complaints (mainly under the Organisation of Working Time Act,) were dealt with by way of further written submissions having been the subject of some oral exchanges at both hearings.
I turn first to the complaint under the Unfair Dismissals Act. (While in accordance with normal convention the respondent’s case is given first, its response also follows to the other complaints for ease of reading, although the burden of proof falls on the complainant in respect of those complaints.) |
Summary of Respondent’s Case:
The respondent submitted that the complainant’s contract of employment contained a provision to permit deductions in respect of damage to company property.
The requirement to do so arose as a result of unauthorised use of a company vehicle by the complainant and resulting damage in December 2022. The vehicle had to be repaired and cleaned at a cost of €1471 and this deduction was made from the complainant’s wages. (This is relevant to CA-56271-001 in relation to the alleged unlawful deduction).
When this was considered in the context of what was viewed a poor performance on the part of the complainant, he was invited to an investigation meeting on December 7th, and it was made clear that this was not a disciplinary meeting.
On January 6th, 2023, he was then invited to a disciplinary meeting, due to take place on January 10th. The meeting took place, and he was sent notice of an outcome meeting which was scheduled for January 25th and at which he was told of the termination of his employment.
He appealed but it was not upheld.
Garret Mulroy, Service Manager at the respondent gave evidence on affirmation.
He referred to the provision in the contract for deductions from wages to be made in the case of damage to company property.
Regarding the investigation, he confirmed his role in it and stated that the complainant raised no queries at the investigation meeting. He went through five performance issues with the complainant as he had observed a pattern of sub-standard work.
He prepared the minutes of the meeting, and the key issues were the state of the vehicle and the complainant’s sub-standard performance.
The complainant cross examined the witness and asked him whether he thought the meeting and the minutes were fair. He put it to him that the state of the vehicle was no more than normal ‘wear and tear’.
The witness responded that the dirty state of the vehicle and the damage went well beyond ‘wear and tear’.
Brendan Quinn, General Manager gave evidence on affirmation. He had been the decision maker in the disciplinary process. He stated that the minutes of the meeting were a true and accurate account of the proceedings.
He stated that when the complainant raised an objection that he had insufficient time to prepare for the hearing the witness adjourned the hearing to allow him to make a call and consult support.
The witness stated that he asked the complainant whether he had understood that he had been instructed not to use the van for personal purposes, but yet he had done so on two occasions after that instruction. The witness said he was satisfied at the hearing that the complainant had disobeyed this instruction on the two occasions referred to.
It is true that the complainant had sought to amend the minutes of the meeting and some of the changes he sought were agreed to.
The complainant was invited to cross examine or ask questions of the witness, but he had nothing to put to him.
Niall Jones gave evidence. He has been a Director of the company for six years and heard the appeal on April 30th, 2023. He invited the complainant to submit his grounds of appeal but did not find grounds to overturn the original decision to terminate the complainant’s employment.
The complainant commented at this point that he had never been sent the outcome of the appeal.
The respondent summarised its position as follows.
It has a full set of procedures which were followed as required. The complainant arrived for the hearing without an accompanying person and only then complained about it. In fact, he acquiesced in the process and fully participated in it. The dismissal was the culmination of a process and was fair.
Other Complaints CA-00057066-001 and 003. Section 6 of the Payment of Wages Act.
This complaint (CA-00057066-001 and -003) as originally lodged was the subject of a submission heard on February 6th, 2024, by the respondent. During that hearing the latter complaint was expressly withdrawn by the complainant.
CA-00056273-001.
In his Complaint form he states that “My employer has made an unlawful deduction from my wages and/or tips and gratuities.” The complainant states that on the 02/02/2023 he was deducted €1471.57. He confirms that he was given one week’s notice of the deduction from the respondent and the deduction was in respect of “Damage to work van”.
CA-00057066-003.
This is the same complaint, and the respondent submits that the second complaint in this situation CA-00057066-003 is void for duplication.
On February 6th, 2024, at the initial hearing the Complainant indicated to the Adjudicator that he was withdrawing this complaint. However, and at the hearing of April 10th, he has sought to reintroduce this complaint.
Of more concern however, and instead merely attempting to reintroduce his original complaint he has in fact generated eight additional issues or ‘complaints within a complaint’ that he is now claiming arise under this particular original CA number. What he has made submissions on is for the most part a completely different set of issues from that which he had originally lodged. Furthermore, he is claiming that he is owed €44,999.37 as a result.
It is submitted that the complainant had withdrawn this complaint and cannot reintroduce it, particularly where he seeks to significantly widen from the original and introduce new complaints.
Were the determination to proceed with -003, the respondent respectfully submits that the complainant has made written additional and supplementary submissions that go far beyond the -003 complaint that he had originally lodged.
In the course of this attempted broadening of his original (and withdrawn) complaint he acts as follows (complainant submissions received 28th March 2024 on -003 refers).
He raises issue that he had not raised with his employer, as well as issues that are clearly addressed in his contract and letter of offer (see written submissions and below). -003-1 Is a new claim. His hours are set as per his contract and provision is made for deviations from that, e.g., authorised overtime. -003-2 Is also new claim. His contract clearly provides that all hour worked up to 40 (i.e., not 39) are paid at the basic rate of pay. -003-3 A new claim of unlawful deduction and -003-4 A new claim regarding pension entitlements. -003-5 Is an attempt by him to revisit CA-00057341-003 already addressed on 6th February and is submitted by the respondent to be statute barred. -003-6 A new claim that is not a payment of wages claim. -003-7, also a new claim. -003-8 A new claim and incorrectly states that he should be paid extra for working 40 hours per week despite the 39-hour provision expressly stated in his signed contract.
Complaints under The Organisation of Working Time Act
CA-00057066-005, CA-00057066-006, CA-00057066-007, CA-00057066-009, and CA-00057066-010 (all pursuant to section 27 of the Organisation of Working time Act, 1997).
In overall terms, the respondent places reliance on the Contract of Employment of the Complainant dated 24th February 2024 and signed by the Complainant. There are specific paragraphs dealing with ‘Hours of Work’ and ‘Minimum rest Periods,’ ‘Remuneration’, Annual and Public Holidays, and particular to the issues raised by provisions (submitted in evidence).
Regarding hours of work, these include that Normal hours of work are 39 hours per week 9.00am to 6.00 pm, Monday to Thursday and 9.00 to 5.00pm on Friday. He has a 60-minute unpaid break each day. He is expected to be on site at 9.00 each day and required to work on-call duties in accordance with the on-call roster. He is required to work overtime when authorised.
Regarding Minimum rest periods he is provided with a 15 min rest break each day per in excess of 4.5 hours, a daily rest period of 11 consecutive hours in a 24 hour period and a weekly rest period of 24 consecutive hours per seven days.
Where there is a failure to receive breaks or rest periods, he is to notify his Line Manager within one week to have this afforded as soon as possible. In respect of Remuneration, all hours worked up to 40 (i.e., not 39) are paid at the basic rate of pay, overtime provision of time x 1.5 and double time depending on the days overtime is authorised and a meal allowance of €13.00 paid for working more than 5 hours each day and 20km away from home/ office.
The contract concluded with a paragraph that “I hereby verify that through signing this contract of employment I have read, understood and accept all terms and conditions in relation to my employment with Anglo-Irish refrigeration Co. Ltd.”
The ‘Letter of offer’ dated 3rd February 2020 contains various relevant provisions such as that the overtime rate will not become payable until 40 hours have been worked per week and thereafter overtime will be paid at a rate of 1.4 times the hourly rate and any time worked on Sundays or bank holidays will be paid at double time. He was be expected to be available for call Rota this is open to change depending on staffing levels. A subsistence allowance will be payable also. Engineers allow 5hrs travel per week before 09:00 and after 18:00 Monday to Thursday. 09:00 to 17:00 Friday. (in summary ½ hour morning ½ hour evening non payable). The respondent confirms that the Employee Handbook is furnished to the Employee at induction. Reference is also made to the Handbook in the contract as signed by the Complainant, and as confirmed by the complainant at the hearing of the 10th of April. The issue was also addressed in the course of the original hearing. The Employee handbook also contains various provisions of relevance to these claims.
In respect of complaints CA-00057066-005, CA-00057066-006, CA-00057066-007, CA-00057066-009, and CA-00057066-010 (all pursuant to the Organisation of Working Time Act, the respondent submitted as follows:
CA-00057066-005 The written submission on this seeks to include issues that are working time and payment of wages issues under the one CA. In addition, it ignores the contract of employment rest and break provisions.
He is outside the statutory time limits for submitting a complaint and seems to have included a variety of issues.
His hours worked are his basic and authorised overtime hours. Where he is ‘on call’ he is paid an ‘on call’ allowance. Where he is ‘called in to work/’ the standard regime of remuneration (or overtime) and rest/ breaks applies, and he is no longer ‘on call’. It appears that he is erroneously conflating ‘hours worked’ and ‘on call’ hours or time for which he is paid an allowance and for which the working time regime of rests/ breaks as stipulated in his contract is provided. His travel time that may arise outside of his contracted hours is not included in his 39 hours basic. This was agreed by him and not subsequently raised in the course of his employment with the respondents. Yet he persists in adding 5 hours to his calculation of each week. The complainant is paid according to agreed submitted time sheets and any issues arising as raised by him can be addressed at that time. What he seems to persist in doing is raising issues that are already expressly agreed by him, e.g. ‘unpaid travel time, ‘on call’ as opposed to ‘working’, his basic week paid is for 39 hours.
CA-00057066-006 is outside the statutory time limits for submitting a complaint.
As with -005 (above), it appears that he is erroneously conflating ‘hours worked’ and ‘on call’ hours or time for which he is paid an allowance and for which the working time regime of rests/ breaks as stipulated in his contract is provided. The complainants contract stipulates that where there is a failure to receive breaks or rest periods, he is to notify his Line Manager within one week to have this afforded as soon as possible. He did not raise these issues. There are other occasions where he raises a working time issue with his line manager and that is addressed, e.g. see page 93 of the respondents’ submissions dated 9th of April where Mr G. Mulroy responds to an issue he raised (although the mail is primarily about another matter). The respondent does not accept his claims that he was not allowed to avail of or in the alternative was prevented from availing of breaks/ rest periods. The ‘on call allowance’ is not a working time issue. In remuneration terms it is paid under ‘subsistence’.
CA-00057066-007 is also outside the statutory time limits for submitting a complaint. In addition, as with -005 and -006 (above), it appears that the complainant is erroneously conflating ‘hours worked’ and ‘on call’ hours or time for which he is paid an allowance and for which the working time regime of rests/ breaks as stipulated in his contract is provided.
The complainants contract stipulates that where there is a failure to receive breaks or rest periods, he is to notify his Line Manager within one week to have this afforded as soon as possible. He did not raise these issues. There are other occasions where he raises a working time issue with his line manager and that was addressed Contrary to his assertions, the complainant was never ‘on call’ day and night. In addition, the complainant has misdirected himself in his written submissions. When rostered to be ‘on call’ (also on-call), an Engineer works 2pm to 10pm and is then on call from 10pm to 8am. If an issue is referred to the on-call Engineer, the on-call Engineer first logs in to the refrigeration remotely via his/ her laptop. If the issue cannot be resolved remotely and is urgent enough that it cannot wait until the morning then the on-call engineer should attend site to address the problem, at which point he/ she is not ‘on call’. The respondent provides that the minimum payment for a remote dial in to a refrigeration unit is 30 minutes pay. If the Engineer must attend the site in question, then those hours are paid at double rate. The respondent does not accept his claims that he was not allowed to avail of or in the alternative was prevented from availing of breaks/ rest periods.
CA-00057066-009 is also outside the statutory time limits for submitting a complaint. In his written submission the complainant states: “Holidays taken year 2022. January 3rd, March 17th/18th, April 18th, May 20th, June 6th, September 29th and 30th, October 3rd to 7th (5 days), October 10th to 14th (five days)October 17th to 19th (three days) and December 22nd to 29th (six days) Total holidays received = 28 days total.”
I have received 28 days annual leave in the year 2022. Two days annual leave unpaid.”
In addition to being in excess of the directed reference period, the complainant seems to be referring to annual leave as including public holidays. The respondent does not give payment in lieu of holidays. This is stated in the Employee Handbook at page 23 of the respondents’ submissions dated 9th of April 2024 (at paragraph A.3).
CA-00057066-010 is outside the statutory time limits for submitting a complaint. In addition, he is not a ‘night worker’, his basic contracted hours do not involve night working and He is again conflating worked hours with ‘on call’. Being at ‘work’ is not the same as being ‘on call’. If he is ‘called in’ then the overtime provisions regarding remuneration provisions in his contract and the standard rest/ break provisions apply. |
Summary of Complainant’s Case:
The complainant had worked and travelled excessive hours providing emergency breakdown service/maintenance in commercial refrigeration sector, throughout Ireland at the company’s request, based in Cork as a regional engineer. I He had a number of debates with his management team in relation to van specifications and air conditioning. The van did not have the specifications or standards to enable him to perform his duties in a safe and healthy environment and he suffered from heat stress in the summer. All other Qualified Engineers living in populated areas had van specs that were required of the company to meet its obligations. He made a protected disclosure in the form of my first and only complaint while working for Anglo on the November 22nd, 2022 but got no response.
On November 21st, 2022, he was instructed to collect a replacement work Van from Anglo Refrigeration head office. The van did not have specifications or standards to meet both health and safety obligations. Management team assured me that the van had air conditioning. He informed his line manager that he needed to collect personal belongings and work tools from the previous used work van.
The following day he travelled to Tralee to collect personal belongings and work tools from previously used work van. The van was lifted without his knowledge or consent, and he complained about this.
On. November 24th, 2022, he notified his line manager he would be unable to attend work due to headaches and stress. From 24/November/2022 up to 06/December/2022 inclusive. This was a result of management’s refusal to show any award for merit or service rendered and excessive hours worked.
The following day he wasrequestedtoattendinvestigationmeetingsinrelationtopoorperformanceonthe November 28th, 2022. He could not attend as he was on sick leave from the 24/November/2022 up to the 06/December/2022 inclusive. This was his only time taking sick leave exceptforcovid.
He returned from work from sick leave on December 7th and was requested to attend investigation meetings into repeat poor performance on December 8th, 2022. The only details provided prior to this meeting were two job reports. The second job report had been altered with additional photos added by management team to show poor performance. The photos added were not the same unit or even the same shop in which I had performed my duties.
This was a deliberate falsification of a legal document.Also, his manager made allegations of two complaints made against him but he was not shown any complaints in writing.
He attended investigation meeting on December 8th on the basis that it was not a disciplinary hearing. He was shown photos of general housekeeping of prior used work van. The van had been lifted without knowledge or consent. My personal belongings had been scattered around.
He does not recall the work van being in the condition shown in the photos. Minutes of the meeting were not agreed. He had requested amendments to be made to the documented conversation, but the company refused to make note of amendments. The operating pressure of CO2 refrigeration equipment is typically in excess of 60 bar pressure. Any error when working on this equipment can have a high potential of a fatal injury. The company denied my request for correct tools and training to complete my duties in a safe manner.
He was requested to attend a disciplinary meeting on January 10th, 2023, but again was not supplied with specific details. This is noted in the documented conversation. I was also not allowed union representation at any stage. This was a clear preach of company’s policies and procedures. This was a breach of my statutory rights and a denial of fair procedure.
He was requestedtoattendoutcomemeetingontheJanuary 25th, 2023 and was summarilydismissedwithoutentitledtonoticeorpayinlieuofnotice. He appealed against the decision in writing on January 30th and was requested to attend appeal hearing on the February 15th, 2023. To which he responded and outlined reasons to why he felt dismissal was unfair. I also requested to be presented with my file at the meeting, as I did not have any record of terms and conditions prior to January 9th, 2023. The appeal meeting took place on February 15th in Anglo Irish refrigeration Offices in Ashbourne Co Meath at 9.00 hours to which he had to travel from Cork. He did not receive minutes of the meeting, the company file as requested or any outcome or decision of the appeal hearing.
In his evidence on affirmation the complainant stated that the damage to the vehicle was no more than ‘wear and tear’. He also said he felt that the process ‘could have been more legal’ and that it was initiated against him because of the complaints he had made to his manager about the vehicle.
In response to cross examination, he agreed that it was ‘unfortunate’ that the van was in the state it was. He also accepted that he had been told not to use the van for personal purposes with authorisation, but he did so.
In respect of the various complaints under other legislation the complainant made extensive written submissions on his complaints following both hearings, and which were shared with the respondent for comment. These are addressed in the decision below. |
Findings and Conclusions:
I turn first to the decision to terminate the complainant’s employment. The timeline of events provides a frame work for doing so.
The complainant commenced his employment in January 2020. There was no evidence of any disciplinary or performance problems until the sequence of events beginning in November 2022 which culminated in the termination and giving rise to this complaint of unfair dismissal.
His previous company vehicle was withdrawn from him in circumstances which the complainant was unhappy about. He was apparently not given notice that it was going to be taken, and he complained about this. He also made the point that some of the alleged shortcomings in relation to the tidiness of the vehicle could have been corrected had he known the respondent was going to retrieve it.
This was on November 22nd, 2022, and shortly afterwards he was invited to an investigation meeting which he could not attend as he was on sick leave.
He returned from sick leave on December 7th and was again invited to an investigation meeting. This took place the following day on December 8th and the minutes show that a discussion took place about various aspects of the complainant’s performance and the time taken to complete certain jobs. Some five examples were given of where the respondent had questions about the complainant’s performance.
To the external eye the complainant gave reasonable answers to all of these questions. This is not to say they may not have been entirely satisfactory from the employer’s point of view, but they were plausible and did offer some explanation from the complainant ‘s point of view.
As will be seen below, it may actually be that they were also satisfactory to the employer as, ultimately no further action was taken on them following the disciplinary procedure.
There was also a discussion about the untidy state of his vehicle and its use for personal travel by the complainant. For his part, the complainant raised some issues about the suitability of the van for the nature of his work, the lack of air conditioning etc, which appeared to be a long-standing grievance.
This was followed by an invitation on January 6th, 2023, to a disciplinary hearing, citing performance issues, damage to the van and the complainant’s personal use of the van.
In the notice of the disciplinary hearing here was no reference made to the investigation, nor to any report of its conclusions or findings on the matters raised with the complainant during it, nor was there any assessment of his explanations or any conclusions as to whether they had been accepted or not.
It is a serious flaw that he was not provided with an outcome of the investigation as would be normal practice.
The Disciplinary Hearing commenced with a complaint by the complainant about the shortness of the notice of the meeting and the fact that he was not represented.
He had driven from Cork to Ashbourne for the early morning meeting and was told that he was required to continue with the meeting on pain of a possible charge of gross misconduct if he did not.
He was permitted to have a brief adjournment to make a telephone call (and a second adjournment as the meeting was ending). (The respondent’s submission misleadingly suggested that the meeting itself had been adjourned; it was only adjourned for twenty minutes or so).
In the outcome letter the Decision Maker insisted that the complainant had been offered representation although, again this is disingenuous, at best.
The meeting proceeded on the three issues of which notice had been given without the complainant having any representation.
The Decision Maker began by saying that he ‘had reviewed’ the issues raised at the investigation meeting, and introduced a fresh incident related to the complainant’s performance. Again, the complainant gave robust answers to questions raised about his vehicle (which had broken down on one occasion).
Likewise, on the issue of personal use of the vehicle the complainant protested that he always had limited personal use but accepted that he had been told at the Investigation meeting on December 8th that any such use would have to be authorised. He agreed that he had used it on December 30th and 31st when he had been on call following that instruction.
The complainant concluded by saying that he had not been given prior details of what was to be considered at the hearing and that he was not given sufficient time to prepare.
The outcome letter was issued on January 25th and terminated the complainant’s employment for ‘gross misconduct’, but exclusively on grounds related to the unauthorised use of the vehicle; both on the grounds of refusing to accept the instructions at, and following the December meeting, and, because this also represented a failure to carry out ‘a legitimate instruction of your manager’.
In other words, he was dismissed for the fact of failing to carry out a legitimate instruction and, for good measure, also for the offence of failing to carry out a legitimate instruction.
There was no reference to the performance issues in the outcome letter, nor any findings on whether they had been upheld or dismissed; they were simply not referred to; likewise in respect of the charge of ‘damage to the vehicle’ of which no mention was made.
It will be obvious that there are a number of elements of this process which were unsatisfactory.
The mysterious evaporation of the performance issues, which grounded most of the proceedings of the investigation meeting on December 8th, and which were added to at the disciplinary hearing is the first of these.
Despite the lack of any investigation outcome on these issues, they still made their way on to the list of charges against the complainant and yet there is not a single reference to them in the disciplinary outcome letter.
And related to this when the Disciplinary hearer stated that he had ‘reviewed’ the instances raised at the investigation meeting, what was he referring to? Was this simply a reference to the allegations or the complainant’s responses or both? And what, if any, conclusion was reached on the basis of this review?
We shall never know, because, as already noted, there is no reference to them in the disciplinary outcome letter.
What was referred to in the outcome letter as the sole reason for his dismissal was ‘repeated, excessive and unauthorized use of Company van for personal purposes during your annual leave on the 22nd and 23rd of December 2022’.
Bear in mind that this instruction was given to the complainant only on December 8th, the notice of the hearing issued on January 6th.
In assessing the fairness of this process, I take into account that there are three key pillars involved in an assessment of the fairness of a dismissal. In order for a dismissal to be fair there must be some significant grounds to justify disciplinary proceedings or other actions against the employee related to performance or conduct. The onus under the Act falls on the employer to justify the dismissal. Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee and ensure that justice is done. These are not particularly onerous and are generally well known. They are referred to by such terms as fair procedure and natural, or constitutional justice. Many, if not most cases coming before an Adjudicator are argued on the basis of facts that are generally not in dispute and the outcome normally turns on any alleged inadequacies in the procedures and/or the appropriateness of the sanction. The final pillar concerns the sanction. In this, a WRC Adjudicator will in general apply, not his own view as to the gravity or otherwise of the complainant’s conduct but, in addition to the procedural aspect of the case, whether the sanction lies within a range of what night be considered reasonable, having regard to the nature of the respondent’s business activity. The application of the “band of reasonable responses” authorities in the context of unfair dismissal was discussed in Allied Irish Banks v. Purcell [2012] 23 ELR 189, in which Linnane J commented (at p. 4): “Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93: ‘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 take a different view.’
This was confirmed by the decision of Noonan J. in the High Court case of Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229. It has also been referred to with approval in the Supreme Court by O’Donnell J in Ruffley v Board of Management of St Anne’s School [2017] 2 IR at paragraph 41. Turning to look at the current complaint by reference to these criteria and looking first at the basis on which the initial process was grounded I refer again to the fact that by far the greatest focus of the investigation meeting was on the five performance issues, and which (in general terms) formed one of the three charges at the disciplinary hearing. I have already remarked that there is no evidence of this investigation step discharging the elementary responsibility required of such a process. That is of actually reaching a finding of fact on the issues under investigation and as to whether the complaints it was supposed to be investigating were well founded. I have already referred to the robust nature of the complainant’s responses, but there is nothing to show how these were received by the respondent. Not only is this a fundamental flaw in itself, but it placed the complainant at an unacceptable disadvantage in relation to the disciplinary stage which followed and in preparing his case. He ought to have been given a clear statement of the conclusions of the investigation stage. Add this to his complaint about having the travel a long distance to an early morning hearing, his lack of representation, and the threat that he would be charged with gross misconduct if he were not to proceed, and it is possible to discern a clear flavour of the true nature of the process. He was given notice of the hearing on Friday, January 6th, and the hearing was held on the following Tuesday 10th. In the circumstances, this is wholly inadequate notice of just over one working day. The complainant requested that the meeting be rearranged as this was insufficient notice. The respondent replied that it was only obliged to give twenty-four hours’ notice and (on the following Monday) described the notice as ‘in excess of 72 hours’. And critically the complainant was never notified that he was facing a charge of ‘gross misconduct’ in the notice of the disciplinary hearing. Had he been so advised; he would have been well within his rights to seek more time to prepare and to be properly represented. The respondent would be well advised to review its policy of providing an employee threatened with the loss of their employment with twenty-four hours’ notice; it is entirely inadequate to arrange representation, seek relevant documentation, prepare a response etc. Then, as already noted, there is the fact that the performance issues, sufficiently important to require an investigation meeting the day after the complainant returned from sick leave, mysteriously evaporated by the time the disciplinary process concluded without as much as a passing reference to them in the outcome letter. As did the allegation of damage to the vehicle; there is no reference to it in the outcome letter either. In fact, the only reference to it in the course of the meeting is the following. BQ (Decision Maker) We’ll move on to the van. BQ went through what would be considered general housekeeping on the van e.g. keeping it tidy, checking tyres, general wear and tear and checking for damage etc. The broken bumper and headlight were not wear and tear. Did you report these to anyone? SG (complainant) Yes, it was reported to Gareth BQ The way this van was left showed poor housekeeping and disregard for company property. This is the sum total of the exchanges at the disciplinary hearing about the van and it is little wonder that it did not appear in the conclusions. Note the conclusion of ‘poor housekeeping and disregard for company property’ as it becomes relevant below to my consideration of CA-56273-001. Some of these criticisms also apply from a procedural point of view to the process itself. The attempt by the respondent in its submission to characterise the complainant’s continued participation in the process as ‘acquiescence’ is particularly reprehensible. The complainant made it very clear (and it is recorded in the minutes) that he was proceeding only because he had been threatened with and feared a charge of gross misconduct. Taking all of these facts together, there is a strong sense of pre-determination associated with every element of what has just been set out. And this impression is consolidated by the terms of the outcome letter. The complainant, who had not been the subject of previous disciplinary action used his vehicle in defiance of an instruction not to do so. Is it possible to shoehorn this into ‘repeated, excessive and unauthorized use of Company van for personal purposes’?
It was just about ‘repeated’ (only once, as only two episodes are referred to as ‘further particulars’ in the outcome letter), and it was clearly, unauthorised if, only a result of a recent change in the authority previously applying to the complainant.
I might also remark on the fact that the restriction on the complainant’s use of the vehicle took place in the course of what purported to be an investigation meeting. Of course, there is nothing to prevent the respondent’s management issuing (or re-stating as the case may be) such a restriction at any time but the context in which it was communicated was the tidiness of the vehicle and the investigation meeting.
Then, while any breach of an instruction may be regarded as ‘excessive’ it is necessary to re-state that only two incidents were upheld, and this smacks of desperation on the part of the respondent to make the conduct complained of fit the desired outcome.
Because, what needs to be considered here is that the respondent proceeded to characterise the two breaches as ‘gross misconduct’ and terminate the complainant’s employment. (As noted already, there was no reference in the outcome letter to the alleged damage to the van).
On these facts it is not remotely within the parameters of what would be understood to be ‘gross misconduct’ (again remembering the complainant had never been charged with gross misconduct) and it results in so severe and disproportionate a sanction that places it far outside the range of reasonable responses and one that no reasonable or fair employer could possibly have applied.
There were three charges against the complainant. Two were ignored or overlooked by the decision maker and it must be assumed they did not play any part in this decision.
One of the three, the unauthorised use of the vehicle on two occasions, (subsequent to the investigation meeting, interestingly) was sufficient to doom the complainant.
He appealed, but while it failed, he stated in his evidence to the hearing that he had never been given a statement of the outcome, which is not inconsistent with the respondent’s general handling of the matter, as it had previously failed to give him the outcome of the so-called investigation.
It was the final, fitting act in a thoroughly bad process which, in almost every aspect failed to even approach the standards of procedural and substantive fairness required in disciplinary proceedings and I conclude with no difficulty that the termination was unfair.
The complainant secured employment within a month of the dismissal.
In respect of a remedy, Section 7(c) (ii) of the Unfair Dismissals’ Act provides.
if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,
Accordingly, I award the complainant four weeks ‘ pay in the amount of €4000.00.
CA-57066-002 Terms of Employment (Information) Act.
The complainant stated that he had not received a statement of his terms and condition within his first two months of employment. The respondent produced a copy of the statement signed by the complainant on February 24th, 2020, and this complaint is not well founded.
Payment of Wages Act complaints.
CA-56273-001 relates to the deduction from his wages for the damage to the vehicle. While the complainant did agree to withdraw CA-57066-003 at the first hearing on February 2nd on the basis that it was a duplicate of 56273-001 he changed his mind at the second hearing and on the basis of the complaint form I accept that, while there are similarities, it is not the same complaint, and I will deal with it in what follows below.
In fact, that second complaint (CA-57066-003) related to an allegation that the complainant worked a number of hours every day without payment and various other complaints totalling six in all and representing a claim of €44,999.37. The respondent has commented on this at length above.
Even this detail came by way of a submission from the complainant requested by the adjudicator after the first hearing at which he had failed completely to provide any supporting documentation for his complaints. That might well have been the end of the matter for him.
In the event, what he did submit, while detailed, rarely managed to go beyond mere assertion. The only date referred to in the submission is July 26th, 2022, which is well outside the cognisable period for any such complaint (which ran from December 11th, 2022).
I find that the complainant has failed to make out a prima facie case based on any reliable facts falling within the cognisable period and this complaint (CA-57066-003)is not well founded.
Returning to CA-56273-001 regarding the deduction, on the complaint form the complainant states that “My employer has made an unlawful deduction from my wages and/or tips and gratuities.”
He further states that on the February 2nd, 2023, a deduction of €1471.57 was made from his wages. He confirms that he was given one week’s notice of the deduction, and the deduction was in respect of “Damage to work van”.
The respondent made little effort to justify this deduction in the course of the hearings but referred to the complainant’s ‘Statement of Terms of Employment’, which he signed on February 24th, 2020, contains the following provision.
DEDUCTIONS FROM WAGES I confirm that I have read, understood and agree to the policies in relation to deductions from wages, and agree that the Company may make deductions in line with the procedures set out in the Employee Handbook.
The following appears in the company handbook, in the section, ‘Standards’, under the sub heading ‘Wastage’ at 3a
‘Any damage to vehicles, stock or property…that is the result of your carelessness, negligence or deliberate vandalism will render you liable to pay the full or part of the cost of repair or replacement’
The inference here is that taking these two provisions together the respondent had lawful authority to deduct €1471.57 from the complainant’s wages in a single deduction on the simple basis of giving him a week’s notice that it was to happen.
Two issues arise here.
The first is that no steps had been taken by the respondent to establish whether the complainant had been guilty of a failure to ‘observe rules, procedures or of engaging in negligent behaviour,’ as defined in the Contract of Employment and the Handbook.
In fact, he was notified of the deduction three days after he had been given notice of a disciplinary hearing called to consider ‘Damage to Van’, which might have been the opportunity to determine the complainant’s culpability, if any in respect of the damage.
In the event, it reached no conclusions whatsoever about the complainant’s conduct in respect of the van which strongly suggests that no finding of ‘guilt’ of failure to’ observe rules’ etc was made, and that the imposition of the deduction was purely arbitrary and unfair.
It will be recalled that the Decision Maker observed that ‘the way this van was left showed poor housekeeping and disregard for company property’ which, even if proven, which it was not, is a long way from merely ‘rendering him liable’ for payment. The Decision Maker chose not to reach any conclusion on the complainant’s culpability, much less one that would ground a deduction of €1471.57 from his wages.
The Payment of Wages Act was enacted to prevent precisely this sort of draconian and arbitrary action by employers.
One does not have to read very far beyond the title of the Statute to see it described as
‘AN ACT TO PROVIDE FURTHER PROTECTION FOR EMPLOYEES IN RELATION TO THE PAYMENT OF WAGES’ etc.
In the case of deductions, it requires (at Section 5(1) that an employer shall not make a deduction from the wages of an employee (…) unless
‘the deduction or payment is required or authorised to be made by virtue of a term of the employee’s contract of employment, included in the contract before, and in force at the time of, the deduction or payment. (at Section 5 (1)(b))
This is the first test facing the respondent. I find the respondent had not complied with the terms of its own Handbook in respect of any damage to vehicles and the complainant’s contribution to it and had no lawful basis to activate this provision to make a deduction.
And it is not the only basis on which they acted unlawfully.
The Act continues at Section 5(1) (c) to require that ‘in the case of a deduction, the employee has given his prior consent to it’.
There was no evidence offered of any consent and I find that the deduction of €1471.57 was unlawful.
CA-57066-004 under the Redundancy Payments Acts was withdrawn at the hearing. The complainant had not been made redundant.
The complaints under The Organisation of Working Time Act. (CA-57066-005, 006, 007, 008, 009)
Again, the complainant, having failed to do so at the first hearing, was facilitated with the opportunity to make a detailed submission supporting his complaints.
Bearing in mind that the cognisable period for all these complaints ran from December 11th, 2022, almost all of the incidents referred to by the complainant in relation to all of the above complaints fell outside that period. (The complainant insisted that the complaints were made somewhat earlier, but the date of submission is formally recorded on the complaint form, and it is this which guides the Adjudicator. In any event it would have made little difference to the following decisions based on time limits.)
His complaint under CA-57066-005 covers the period to the end of the year, so the final few weeks are captured. The information he provided for the three weeks in question was as follows.
Week 50 – No payslip + 0 Sick leave Week 51 – 78 hours + 0 – 48 Hours Holidays Week 52 – No payslip On Call
Having been given extensive opportunity to provide supporting information and noting the burden of proof falls on the complainant I can reach no safe conclusion on the basis of this submission about any alleged breach of the Act and the complaint is not well founded.
In respect of CA-57066-006, the last period referred to is ‘Week 47’, which ended on November 27th, 2022, and which is several weeks outside the cognisable period.
The dates referred to in CA-57066-007 are mainly in February and March 2022, with one in May which all fall well outside the cognisable period.
Complaint CA-57066-008 is a complaint in respect of future annual leave for which there is no legal basis, and it is not well founded.
Complaint CA-57066-009 is a complaint regarding untaken leave. There is an element of three days leave the complainant says is due in respect of the 2022 annual leave year. I find this to be within jurisdiction and award the complainant three days’ pay.
Complaint CA-57066-010 is a complaint regarding excessive night hours and the most recent date in the detail provided is May 5th, 2022, which is also clearly not within jurisdiction and is not well founded.
In summary, complaint CA-00056273-001, Payment of Wages Act is well founded, and I find that the deduction of €1471.57 was unlawful and award the complainant €1471.57.
I uphold complaint CA-00057066-001, Unfair Dismissals Act, 1977. The complainant secured employment shortly after the dismissal and in accordance with section 7(c) (ii) of the Act I award him €4000.00.
For the reasons set out above complaint CA-00057066-009 is well founded and I award the complainant three days’ pay in the amount of €150.
None of the following complaints are well founded.
CA-00057066-002. Terms of Employment (Information) Act, 1994. CA-00057066-003. Payment of Wages Act. CA-00057066-004. Redundancy Payments Act, 1967. CA-00057066-005, CA-00057066-006, CA-00057066-007. CA-00057066-008. CA-00057066-010. Organisation of Working time Act, 1997.
|
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.
Complaint CA-00056273-001, Payment of Wages Act is well founded, and I find that the deduction of €1471.57 was unlawful and award the complainant €1471.57.
I uphold complaint CA-00057066-001, Unfair Dismissals Act, 1977. The complainant secured employment shortly after the dismissal and in accordance with section 7(c) (ii) of the Act I award him €4000.00.
For the reasons set out above complaint CA-00057066-009 is well founded and I award the complainant three days’ pay in the amount of €150.
None of the following complaints are well founded.
CA-00057066-002. Terms of Employment (Information) Act, 1994. CA-00057066-003. Payment of Wages Act. CA-00057066-004. Redundancy Payments Act, 1967. CA-00057066-005, CA-00057066-006, CA-00057066-007. CA-00057066-008. CA-00057066-010. Organisation of Working time Act, 1997. |
Dated: 21st May, 2024
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Unfair Dismissal, Deduction of wages |