Complainant

Respondent

Parties

John Joe  Doyle

Park Plant Hire Ltd T/A Killeen Civil Engineering Ltd

Representatives

Patrick Kennedy PJ O'Meara & Company

Hugh Hegarty Management Support Services (Ireland) Ltd

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-00051977-001

28/07/2022

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

CA-00051977-002

28/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051977-003

28/07/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00051977-004

28/07/2022

The Complainant was employed by the Respondent as a Banksman from 6/1/2003 until his employment was terminated.

The Respondent was contracted by another/client company to erect poles in various geographical locations. In that regard the Complainant and another worker were involved in erecting poles in April 2019. The Complainant was the Person in Charge (PIC) whilst the other worker drove a digger. Following allegations that the Complainant did not erect the poles correctly, that the poles were erected with the ends cut off and/or that he allowed the poles to be erected incorrectly thereby causing a safety risk, the Respondent undertook an investigation and disciplinary process. As a result the Complainant was dismissed.

The Complainant submitted a number of complaints to the WRC including that he was unfairly dismissed – which claims are disputed and denied by the Respondent.

1.       The Respondent maintained that all of the complaints were out of time and statute barred. In relation to the claim for unfair dismissal, the Respondent stated that Complainant was dismissed on 20 October 2021. The Complainant stated that he appealed the decision internally, that an appeal hearing was held on 21 November 2021 and that the appeal outcome was issued on 12 April 2022.

The Complaint Form was submitted to the WRC on 28 July 2022. The Complainant submitted that in light of the delays with the investigation and appeal process and given that the parties were in discussions at the time, that I should exercise my jurisdiction pursuant to Section 41(8) of the Workplace Relations Act [2015 - 2021] and extend the time limit for bringing a complaint to twelve months for “reasonable cause”. In the alternative the Complainant sought that time would only begin running from the date of the appeal outcome – ie 12 April 2022. This application was opposed by the Respondent who objected to the Complainant seeking an extension of time based on alternate grounds and who referred to its Disciplinary Procedures and the letter of dismissal of 18 October 2021 which it stated was unambiguous in advising that the dismissal had “immediate effect”.  

I advised the parties that I would hear the complaint in full and reserve my decision.

2.       The Complainant withdrew complaint CA-00051977-004 in the course of the adjudication hearing.  

·         CA-00051977-001 – Unfair Dismissal

Without prejudice to its objections on the time limitation ground, the Respondent outlined its position that the dismissal of the Complainant was fair and warranted in all the circumstances. In that regard, the Respondent outlined its business and stated that in or around 25 April 2019 it received a report from the client company to the effect that the Complainant’s colleague/X had made eleven allegations to the client including that the Complainant had shortened the length of wooden poles at five specific locations resulting in the poles not being installed to the required depth and specifications. The Respondent stated that in response the client company suspended its contract with the Respondent on 2 May 2019 pending an investigation. The Respondent then advised its staff including the Complainant that they were being laid off from 2 May 2019 as there was no work for them until further notice.

The Respondent stated that it cooperated with the client company’s investigation which was completed on or about 3 June 2020 although the Respondent did not receive the report until 14 December 2020. The client company’s investigation found that there was a failure on the part of the Respondent to ensure that the work to be carried out was done to the required standard thereby creating a safety risk. On foot of this the Respondent conducted its own investigation and disciplinary process. The Respondent hired an Independent Third Party to conduct the investigation which was completed on 7 April 2021. The investigation report concluded – inter alia – that “In relation to Mr Doyle, it is very clear again that we cannot establish whether he was the person who authorised or cut the poles. However, we do know that Mr Doyledid not properly supervise, that his responsibility was to supervise the installation and ensure that they were completed satisfactorily and to specification”.

Thereafter the  Respondent hired a second Independent HR Consultant to conduct a disciplinary hearing which concluded on 5 October 2021 that the Complainant was guilty of gross misconduct and which recommended that he should be dismissed. The Respondent stated that it adhered to the recommendations of the disciplinary hearing and that a letter of termination was issued on 18  October 2021 which gave effect to the dismissal from 20 October 2021. Thereafter the Respondent stated that it afforded the Complainant a right of appeal which was unsuccessful.

Evidence of the Respondent’s Director:

The Director gave evidence in relation to his contacts with the client company. The Director also gave evidence in relation to locating the sites of the specific poles erected incorrectly. He stated that he did not realise the extent of the problem until he received the client company’s report on 14 December 2020. The Director stated that the client’s report had set out that the original allegations were made by the Complainant’s colleague/X who was the person working with him whilst the poles were being installed. The Director stated that as a result it lost the clients contract and incurred significant financial loss.

Under cross examination, the Director stated that the Complainant and the colleague/X had worked together for several years and that the Complainant was good at his job. The Director accepted that the Complainant had difficulties with X and that he had raised the issues with  the Respondent. The Director stated that the issues had not been put in writing by the Complainant and that the latter had indicated he didn’t want any action taken against X. The Director stated that there were issues in relation to X’s taking instructions from the Complainant. It was put to the Director that relations between the Complainant and X had broken down in April 2019 and he agreed. It was also put to the Director that this was when X complained to the client company about the Complainant.

It was put to the Director that the Complainant’s contract of employment did not provide for lay off, that effectively the layoff operated as a punitive unpaid suspension and that the Complainant was not offered other work. The Director disagreed although he stated that he considered “it gross misconduct from the outset”. The Director stated that he was not a legal or HR expert nor was he familiar with disciplinary processes which is why he had sought independent advice and appointed an Independent Investigator and an Independent Third Party to conduct the investigation and disciplinary stages. Under cross examination, the Director did not accept that its investigation and disciplinary stages were unreasonably delayed. In relation to the Respondent’s Disciplinary Procedure the Director stated this was included in the Complainant’s contract of employment and that the procedure provided for representation.

In response to a question on training the Director stated that training was provided by the client company and that he would be “amazed” if the Complainant did not know what the job entailed given his experience over seventeen years. The Director stated that he “implicitly  trusted the crew” to put up the poles to the correct standards, that he had “total confidence” in the work being done and was “astounded” when he was contacted by the client company.

The Director was cross examined on his visit to the Complainant’s house on 5 October 2020 in the course of which he accepted that he asked the Complainant to consider resigning. He stated he gave the Complainant this option on foot of advice. In relation to X’s original complaint the Director stated that he never instructed information to be withheld from the Complainant. The Director explained that X participated in the Respondent’s investigation but not in the disciplinary or appeal stages. The Director stated that he took the final decision to dismiss based on the client company’s report and the reports from the Respondent’s investigation and disciplinary stages.  It was put to the Director that the company was successful and growing and that he could have sourced alternative work for the Complainant as he had previously worked in groundworks – which suggestion the Director rejected on the basis of lack of trust in the quality of the Complainant’s workmanship.

It is the position of the Respondent that the reason for the dismissal was substantial. In that regard, the Respondent stated that the Complainant was grossly negligent, that his job was to erect the poles correctly and ensure they were erected correctly and to the required specification, that his negligence cost the Respondent the client’s contract and resulted in significant financial loss for the Respondent and in a number of workers being laid off/let go. The Respondent submitted that its investigation, disciplinary and appeal stages were conducted fairly throughout by independent parties and that in all the circumstances the decision to dismiss was justified and proportionate.

·         CA-00051977-002 – Minimum Notice

The Respondent stated that the Complainant was not entitled to a paid notice period as provided by Section 8 of the Minimum Notice and Terms of Employment Act [1973-2017] as his dismissal was for gross misconduct.

·         CA-00051977-003 – Payment of Wages

The Respondent submitted that this complaint was moot as it was out of time and statute barred and without prejudice to that contention, that no wages were payable after the Complainant was dismissed on 18 October 2021 or during the period of lay off when he did not work.

·         CA-00051977-001 – Unfair Dismissal

The Complainant stated that he was subject to an unfair investigation and disciplinary process and he strongly took issue with the “reasonableness” of the outcome which he stated was disproportionate. He stated that he was required to attend a meeting when he was on sick leave and that there were protracted delays throughout the process which stretched from May 2019 until April 2022 when the appeal outcome was issued.

The Complainant stated that he was not afforded the opportunity to challenge the evidence against him or to cross examine his accuser –  colleague X – either in the course of the investigation or disciplinary process. The Complainant stated that initially he was not aware that colleague X had made a statement of complaint against him and that he was also refused  X’s statement and that X’s interview was redacted from the investigation report. The Complainant referred to his letter to the Respondent of 12 May 2021 which sought all relevant information related to the disciplinary process and he stated that the complaints against him were not set out in writing. The Complainant also stated that he was not advised he could be represented at the disciplinary hearing, that he was unaware of the Respondent’s Disciplinary Procedure and that no procedure was furnished to him prior to the disciplinary hearing.

In evidence the Complainant stated that the Respondent did not provide any training for his role as a Supervisor and that he had little or no contact with the Respondent whilst on site. He stated that the client company would audit the work. The Complainant strongly denied cutting any poles short and also denied that he was either aware or authorised any poles to be cut. He stated that colleague X arrived before him on the workplace site on several occasions. The Complainant stated that X was not dependable. The Complainant stated that he had no reason to believe or suspect that X would have cut the poles and that he checked the depth markers on the poles and saw there were ok.

The Complainant also outlined his dispute with colleague X in April 2019 which he stated ended up in shouting and roaring. In this regard, the Complainant stated that the Respondent was well aware of his difficulties with his colleague/X and that X’s complaints were not credible.

Under cross examination the Complainant clarified that he was not interviewed by the client company for the purpose of its investigation. In relation to the poles he accepted that two of the poles had not been erected properly and he stated that he did not know they had been cut. Under cross examination the Complainant stated that he was farming whilst he was on lay off and that he had not looked for other work and was not looking for other work.

It is the position of the Complainant that his dismissal was unfair, disproportionate and that the Respondent did not consider a lesser sanction having regard to his length of unblemished service. The Complainant further stated that the Respondent did not provide him with specific supervisory procedures.  

·         CA-00051977-002 – Minimum Notice

The Complainant stated that he was not paid the statutory minimum notice and that given his length of service he was seeking eight weeks paid notice.

·         CA-00051977-003 – Payment of Wages

The Complainant stated that he was unlawfully suspended without pay from May 2019 and that his final amount of gross pay/week was €783.75. He stated that he received no written notice of his suspension or of the reasons therefor nor of the proposed duration. Further the Complainant did not accept that the Respondent was entitled to lay him off as his contract of employment did not provide for lay-off nor did he consent to it. He stated that he was not offered any alternative employment by the Respondent.  

CA-00051977-001 – Unfair Dismissal:

Time Limitation:

Section 41(6) of the Workplace Relations Act [2015 - 2021] provides that:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Section 41 (8) of the Act  provides that:

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

In relation to the matter of reasonable cause, the Labour Court has set out the test in Cementation Skanska v Carroll, DWT 38/2003 as follows:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In the case of HSE and Dr Abdul Rauf [Determination No. FTD0817], the Labour Court stated that “A Complainant…..must also demonstrate that there are reasons but for which the case would have been referred in time” (emphasis added in bold).

Section 1 of the Unfair Dismissals Act [1977-2017] defines dismissal as follows:

“dismissal”, in relation to an employee, means—

a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee……”

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose 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 Act prescribes the circumstances where a dismissal may be justified:

6 (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 ……

(a) the capability, competence or qualifications 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 which 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 Unfair Dismissals Act [1977-2017] provides that:

“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 or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6 (7) of the Act provides that in determining whether a dismissal is unfair, 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, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice…..”

Section 14(1) of the Act refers to such dismissal procedure as was furnished to the employee upon entering the contract of employment.

Sections 7 (2) of the Act provides that an Adjudication Officer may consider “compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in subsection (1) of section 14….or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,….”

The combined effect of the above provisions is to place the statutory burden of proof on the Respondent to show that it acted reasonably, in accordance with its disciplinary procedure or relevant code of practice and that the reason for the dismissal was substantial and/or within the parameters of Section 6(4).

The key purpose of a disciplinary procedure is to afford an employer the opportunity to set out the concerns it may have about the poor performance or conduct of an employee and at the same time, afford the employee the opportunity to answer the allegations and make representations as to why he/she should not be disciplined or dismissed. This rationale coupled with the principles of fair procedures are set out in Statutory Instrument (SI) 146/2000 which is the Code of Practice applicable to workplace disciplinary matters.   I have summarised the requirements of SI 146/2000 as follows:

·          To comply with the general principles of natural justice and fair procedures;

·         That the details of complaints are put to the employee, that he/she has the right to respond and challenge evidence, the right to representation and the right to a fair and impartial determination of the issues concerned;

·         That the basis for disciplinary action is clear, that the range of penalties that can be imposed is well-defined and that an internal appeal mechanism is available;

·         That generally, the stages in a disciplinary procedure will be progressive, for example, an oral warning, a written warning, a final written warning, dismissal and that there is some consideration of other appropriate disciplinary action short of dismissal.

In the Supreme Court decision in Iarnród Éireann/Irish Rail V McKelvey [2019] IESC 79, Charleton J. made the following comments about the conduct of a disciplinary process:

“Dismissal is therefore about substance; whether an employee is competent or qualified to do the job, or whether misbehaviour is involved. Section 5(b) of the Unfair Dismissals Act 1993 introduced an entitlement to the Workplace Relations Commission to look at procedure and as to “the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal” and “the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure” agreed for dismissal….. Thus an employee “must be given the reasons for [any] proposed dismissal, and an adequate opportunity of making his [or her] defence to the allegations made against him [or her]…..”

Further to the above principles, it has been well established in case law that it is not the function of an Adjudication Officer to re-investigate disciplinary complaints or to substitute their view for that of a Respondent employer. Rather the focus is whether the decisions arrived at are rational, reasonable and based on the information available.The Labour Court summarised this rationale in the case of Clancourt Management Ltd T/A Clancourt Management V Mr Jason Cahill [UDD2234], where it stated: 

“In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissal the test for this Court is that which was set by Lord Denning in the British case of British Leyland UK Ltd v. Swift (1981) IRLR 91, to determine if the dismissal falls into a ‘band of reasonableness’, a test which was confirmed in this jurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that ‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall into this band of reasonableness? ……”

Against the foregoing backdrop and having carefully considered all the sworn evidence, submissions, documentation and case law cited and I make the following conclusions as regards the unfair dismissal complaint:

·         I deem the complaint of unfair dismissal to be within time in accordance with the provisions of Section 41(8) of the Workplace Relations Act [2015-2021] which provides for an extension of the time limit to 12 months for reasonable cause. In that regard I have carefully considered the submissions and case law cited together with the letter of dismissal of 18 October 2021 which advised the Complainant that he was being dismissed “with immediate effect”. I have also considered the minutes of the appeal hearing which record that its purpose was to hear the Complainant’s “reasons and arguments as to why the dismissal decision should be overturned”. The appeal outcome issued on 12 April 2022 and the Independent Third Party who conducted the appeal records that the purpose was to hear the Complainant’s appeal  “against the Company’s decision to dismiss”. In circumstances where the Complainant was participating in a process which could potentially have reversed the dismissal decision I consider the dismissal letter of 18 October 2021 should be read on the basis that the proposed termination date of 20 October 2021 was subject to appeal. In my view this constitutes reasonable cause to justify the extension of the time limit by a further six months – ie a total of twelve months from 20 October 2021. On that basis and given that the Complaint Form was received by the WRC on 28 July 2022, I deem the complaint was submitted in time. The issue of pay was not a factor in this consideration as the Complainant was off the payroll from May 2019;

·         Having determined that the complaint of unfair dismissal was submitted on time, I must now consider whether the Respondent has discharged the burden of proving that the dismissal was fair. In that regard I make the following conclusions:

o   Notwithstanding that the Complainant attended the Disciplinary hearing on 6 July 2021 unaccompanied, I am satisfied from the evidence and correspondence that he was afforded the right of representation throughout the various stages. I also note that he was furnished with the disciplinary procedures;

o   In terms of fair procedures, I am not satisfied the Complainant was afforded an adequate opportunity to challenge the evidence against him. In this regard I am not persuaded that sufficient steps were taken to afford the Complainant an opportunity to challenge the statements of his colleague X – neither at the investigation or disciplinary stages. Not only was the Complainant not afforded an opportunity to cross examine X but in my view there was an inadequate attempt by the Respondent to put the Complainant’s position to X and to query X’s replies thereto. Having regard to the Respondent’s position that X refused to co-operate, I am not satisfied that sufficient account was taken of this significant procedural deficit in the conduct of the investigation and disciplinary stages. I am of the opinion that this procedural deficit was all the more concerning given the contradictions between the Complainant and X as to what actually occurred in relation to the erection of the poles and given the contentious relationship which existed between them – which I believe the Respondent was aware of;

o   I am concerned that the Respondent’s visit to the Complainant on 5 October 2020 in the course of which he was asked to consider resigning demonstrated pre-judgement and a prejudicial approach on the part of the Respondent well in advance of its receipt of the client’s investigation report and the commencement of its own investigation and disciplinary process;

o   I am not satisfied that the Respondent sufficiently particularised the disciplinary charges against the Complainant prior to the disciplinary hearing – for example as between whether he had cut poles or erected them incorrectly, or had failed to supervise properly or as to whether he “knowingly” allowed below standard work and failed to report matters. In my view this disadvantaged the Complainant in terms of advance notice of the particular charges under consideration. Further, the letter of dismissal did not particularise and specific wrongdoing other than “gross misconduct” which in my view also disadvantaged the Complainant in terms of his appeal;

o   I note that the client’s report identified that the root cause of what occurred was a failure by the Respondent “to oversee staff” – which finding the Respondent rejected. Neither the investigation or disciplinary reports could definitively conclude that the Complainant had cut the poles.  The investigation and disciplinary reports stated – inter alia -  that  “…. it cannot be ascertained as to who cut the poles but there are only two parties involved and one is blaming the other” and that “The only possible conclusion is that it was either [the Complainant or X] who cut the poles in question”. In addition I again cite paragraph 57 of the Investigation Report that “In relation to Mr Doyle, it is very clear that we cannot establish whether he was the person who authorised or cut the poles. However, we do know that Mr Doyle did not properly supervise….” In light of these array of conclusions I am not persuaded that the finding “that Mr Doyle, as….supervisor…..knowingly allowed work to be completed (over an unspecified period of time), in clear breach of all the required regulations…..” was fair or reasonable;

o   In terms of the Complainant’s position as the Person in Charge, I am not persuaded that the Respondent operated a consistent training programme for its Supervisors or that it engaged in regular oversight of the work. In this regard I note the comments of the Director that he “implicitly  trusted the crew” and that he was amazed and astounded when he received the complaints from the client company;

o   The Complainant stated that he had never previously received a complaint in the course of his career working with the client company and/or the Respondent and that during this time he had installed thousands of poles and “about 20,000 over the years with [Respondent]”. I note that in his evidence under cross examination the Respondent’s Director accepted the Complainant was very good at his job.

In light of the foregoing, I am not satisfied the Respondent has discharged the burden of demonstrating that the Complainant’s dismissal was fair, reasonable or proportionate. That being said, I do agree the Complainant should have been more pro-active in terms of addressing his difficulties with X.  

CA-00051977-002 – Minimum Notice:

Section 4 of the Minimum Notice and Terms of Employment Act [1973-2017] provides as follows:

“4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section…..

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

a)      ……

b)      ……

c)       ……

d)      ……

e)       if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

There is no dispute between the parties that the Complainant was employed from 6/1/2003. In accordance with my reasoning in relation to the time limit for bringing the unfair dismissal complaint, I am prepared to extend the time limit for bringing this complaint to twelve months running from 20 October 2021. I therefore deem this complaint was submitted on time. In light of my conclusions in relation to the unfair dismissal claim I find that the Complainant was entitled to be paid eight weeks statutory notice in accordance with his length of service and the provisions of the Act.

CA-00051977-003 – Payment of Wages:

Section 1 of the Payment of Wages Act [1991-2017] sets out the definition of wages as

(a) “any fee, bonus or commission, or any holiday, sick and maternity pay, or any other emolument, referable to [the employee’s] employment, whether payable under [the] contract of employment or otherwise, and

(b) any sum payable to the employee upon….termination….;

Section 5(1) of the Payment of Wages Act [1991-2017] sets out the parameters according to which deductions may be made from an employee’s wages:

1)      “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

a.       the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

b.       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, or

c.       in the case of a deduction, the employee has given his prior consent in writing to it.

Section 5(6) addresses the circumstances in which wages which are properly payable are not paid and provides that where this arises the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee.

The Complainant has argued he should have been on paid suspension from May 2019 when the investigation process commenced. The letter to the Complainant of 9 May 2019 advised that he was being laid off due to the loss of the client company’s contract and consequent loss of work. Either way the Complainant was off the payroll from May 2019.

Given the terms of Sections 41(6) and 41(8) of the Workplace Relations Act [2015 - 2021], I am satisfied this complaint is out of time since the complaint was not submitted to the WRC until 28 July 2022 which was well over three years after May 2019/ie from when the potential cause of action in relation to the payment of the Complainant’s wages arose.

CA-00051977-001

For the reasons outlined this complaint is well founded.  I decide that compensation is the appropriate remedy. Section 7 of the Unfair Dismissals Acts[1977 – 2017] provides for payment “of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration ……) as is just and equitable having regard to all the circumstances”. Financial loss is defined  “….as including any actual loss and any estimated prospective loss of income attributable to the dismissal ….”. Accordingly, I am obliged to take account of the measures adopted by the Complainant to mitigate his losses. In this regard I note the Complainant’s statements that he had not looked for nor was  looking for other work.

The Complainant’s gross weekly pay was €783.75. I hereby award the Complainant eight weeks gross pay to compensate for his loss of earnings arising from the unfair dismissal which I consider just and equitableinall the circumstances. This amount is subject to such statutory deductions as may apply.

CA-00051977-002

For the reasons outlined this complaint is well founded and I hereby decide in accordance with the terms of the Minimum Notice and Terms of Employment Act [1973-2017], that the Respondent should pay the Complainant eight weeks gross pay @€783.75/week subject to such statutory deductions as may apply.

CA-00051977-003

For the reasons outlined this complaint is not well founded.

CA-00051977-004

This complaint was withdrawn in the course of the adjudication hearing. 

Unfair Dismissal, Minimum Notice, Payment of Wages, Time Limitation