EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Linda Lydon – appellant UD790/2012
Moanbaun Limited T/A Clearys Insurance Services – respondent
against the recommendation of the Rights Commissioner in the case of:
Moanbaun Limited T/A Clearys Insurance Services
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey B.L.
Members: Mr P. Pierce
Mr J. Dorney
heard this appeal at Dublin on 4th September 2013 and 19th March 2014
Appellant(s): Mr James Doran BL, instructed by:
Mr Emmet Butler
Butler Monk, Solicitors
DMG Business Centre, 12 Camden Row, Dublin 8
Respondent(s): Mr Aidan Phelan
Peninsula Business Services (Ireland) Limited
Unit 3 Ground Floor Block S, East Point Business Park, Dublin 3
This case came before the Tribunal by way of an employee appealing the recommendation of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, (ref: r-110704-ud-11/JT) and a decision under the Payment of Wages Act, 1991, (ref: r-110284-pw-11/JT).
The determination of the Tribunal was as follows:-
Summary of Respondent’s Evidence:
The appellant was employed by the respondent as a loss assessor from 11th August 2008. The role required her to drive, though at the time of her engagement she was on a provisional licence. It was agreed that she could be office based until she passed her driving test, which she did at a later date. There were a number of incidents during her employment relating to her driving and the condition of the car. She was on a written warning when on 12th November 2010 she had a car accident where she claimed she was blinded by the sun and mounted a median island and crashed into the traffic light pole. No one was injured and the appellant was not prosecuted. The car was written off. She was dismissed for gross misconduct as a result of this accident on 12th December 2010.
The previous incidents listed against the appellant were:
On 18th December 2008 she crashed into a client’s car causing damage costing €940.57. The appellant paid €500 of the damage the respondent paid the difference.
On 9th May 2009 she was caught speeding and was issued with 2 points.
On 25th May 2009 she was caught on her mobile phone whilst driving and was issued with 2 points.
2nd November 2009 the General Manager met the appellant to discuss these incidents. The appellant undertook to drive more carefully in the future.
The company also took issue with the cleanliness of the appellant’s company car. On 13th October 2010 the respondent wrote to the appellant indicating that she was responsible for €658.30 worth of repairs. This letter was also a first written warning. The appellant had hit a hoarding in a car park when she veered to avoid a child which had caused minor damage to the bodywork of the car.
The Managing Director, who dismissed the appellant, did not appear at either hearing date to give evidence.
The Financial Manager heard the appeal. She upheld the dismissal as she felt she would be responsible if she allowed the appellant to continue in her job and she had a future accident. She also felt that the appellant did not take any personal responsibility for the accidents. The appellant described it as a simple accident. For this reason she did not accept the appellant’s offer that she would take an advanced driving course as the Manager believed that the problem was not the appellant’s technical ability but more her attitude.
Summary of Appellant’s Evidence:
The appellant, a quantity surveyor, gave evidence that she passed her driving test on 2nd October 2008. The appellant explained that the accident on 18th December 2008 occurred when she was sent to a distribute brochures to the residents of a row of houses which were on fire. The Office Manager had seen the fire reported on the news and instructed the appellant to go there. The area was very busy with emergency services and media reporters. Having distributed the brochures the appellant was attempting to leave the area, but there was a large amount of parked cars. An oncoming car caused the appellant to attempt to parallel park to allow it to pass, but in doing so she reversed into a parked car, which belonged to the man whose house was on fire. His son witnessed the incident. She indicated that she would pull in up the street to be out of the way. The son accused her of attempting to leave the scene, but she disputed this and explained that she had given out several brochures and had given her phone number to a neighbour. She informed her employer about the accident and he was fine about it. He told her they would not go through the insurance and would split the bill 50/50. She agreed to this as long as she could pay in instalments.
The appellant queried an invoice for €435 for repairs to her car, dated. She was prepared to pay for the scratch she caused from the car park incident but queried the rest. The Financial Manager said she could discuss this with the Managing Director the following day, 11th November 2010, but when she spoke with him that day he was unwilling to discuss until he saw the paperwork. The following day the appellant crashed the car and on the same day the amount of €435 was deducted from her pay. A 10% pay cut was also taken without her consent.
The final traffic incident was when she hit the traffic island on 12th November 2010. She was on her way to see a client and as she drove around a bend the low sun caused her sun blindness for a few moments. She saw lines on the side of the road which she attempted to follow, but which turned out to be a left turning lane, and crashed into the traffic median. The traffic light bent over as, she was later informed by the traffic light assessor, they are designed to do. She had been travelling at approximately 40kmph and had slowed down when blinded by the sun rather than breaking as she knew there was traffic behind her. The Gardaí came but did not charge her with anything.
She suggested taking an advanced driving course at her own expense as she wanted to restore her employer’s confidence in her driving. At the time of her dismissal redundancies had been sought at the Dublin office where she worked. The choice was put to her to accept a 10% pay reduction or be made redundant. The appellant indicated that she would be willing to accept the 10% pay cut if the other assessor also agreed; as if the other assessor chose redundancy she would be responsible for both roles. The more senior assessor in the office had already indicated her intention to accept the redundancy by the time the appellant was dismissed.
Under the Payment of Wages Act the appellant was seeking the following:
- To recoup the deduction of €56.30 taken without her consent by the Company for a valet to her car.
- €230 unpaid sick leave from certified sick leave in September 2010.
- €435 deducted without her consent from her wages for repairs to the car.
- The entire amount deducted resulting from a 10% pay cut which the company also applied to her final payment of outstanding annual leave and public holidays.
In total the appellant was seeking a payment of €1,954.68 under the Payment of Wages Act, 1991.
It was queried during the hearing whether Section 7 (2)(b) of the Payment of Wages Act, 1991, had been complied with in respect of a copy of the appeal form to the other party within six weeks’ of the Rights Commissioner decision. The appellant’s representative forwarded documentation after the hearing which satisfied the Tribunal that the notice had been served to the other party as set out in the Act.
Having heard evidence of all the incidents considered by the Company when reaching its decision to dismiss the appellant the Tribunal finds they fall short of a sanction of dismissal for gross misconduct. Accordingly, the appeal under the Unfair Dismissals Acts, 1977 to 2007, succeeds and the Tribunal awards the appellant €17,000 (seventeen thousand euro) under that Act.
In respect of the appeal of the Rights Commissioners Decision under the Payment of Wages Act, 1991 it appears, having checked with the Rights Commissioner Service, that the appellant’s original complaint was lodged on 13th April 2011. Therefore, allowing the 6 month period applicable, the Tribunal has jurisdiction in respect of the period 13th October 2011 up until the appellant’s date of termination.
The Tribunal varies the decision of the Rights Commissioner and awards the appellant €908.48 under the Payment of Wages Act, 1991.
Sealed with the Seal of the
Employment Appeals Tribunal