ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000461
Complaints for Resolution:
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-00000679-001 | 06/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00000679-002 | 06/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 | CA-00000679-003 | 06/11/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 | CA-00000679-006 | 06/11/2015 |
Date of Adjudication Hearing: 19/4/2016 and 10/06/2016
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 , Section 8(1B) of the Unfair Dismissals Act, 1977,Section 6 of the Payment of Wages Act 1991,Section 18, EC Regulations 2012,36/2012 and Section 7 of the Terms of Employment Act 1994 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.
1. Complainant’s Submission and Presentation:
The complainant worked as a mechanic for the respondent from 14 March 2011 to 30 October 2015. He worked a 45 hr week and was paid €750 a week. On 6 November 2015, the complainant lodged a claim with the WRC contending that he had been:
1 Unfairly Dismissed
2 Not notified of changes to his terms of employment.
3 That his employer was not keeping statutory employment records.
4 That the respondent owed him € 750 in unpaid wages from 6 November 2015
1.2 Background
The complainant presented a complex background to his case. He worked as a mechanic for the respondent business from March 2011 as a PAYE worker. He sought a pay rise in 2014 and received a €50per week increase. At that time, he recalled the Managing Director informing him that he would be paid through a UK Company but “nothing will change”. On 20th October 2015, the complainant discovered that the respondent had not paid tax or PRSI for him since 14 November 2014. He told the hearing that he was asked to attend a meeting with the respondent MD and the Financial Controller where he was requested to pretend that he was self employed and that he should invoice the respondent company for € 39,000 when he would then receive his p 45. He refused this on 27th October 2015, seeking pay slips and P60 for 2014. The company refused to issue any information requested by email. There was considerable discord between the parties. The Financial Controller indicated that she would sort out the matter of his correct status of PAYE worker.
The complainant had repeated difficulty being paid on time during the last few months of his employment. He had asked for pay slips in January 2015, but didn’t receive them. He was paid €600 up until November, 2014, €650 per week from November 2014 to 13 June 2015 when he received an increase to €750 per week. The complainant was uncomfortable being misrepresented as a self employed worker when he had not given his permission for the change and there was no material change on his side. He continued to receive annual leave.
On 30 October, 2015, the complainant noticed that he had not been paid and he indicated to the respondent that he felt ill and was going home. He presented a copy of a text which he stated emanated from the Managing Directors phone which caused him to be suspended from work.
“Good afternoon X in light of the events over the past number of weeks and your actions and accusations this morning, we now have no option but to raise an investigation into these matters. We think that it best that we will not require your services until further notice, we would ask you not to enter our premises or speak to any member of our staff until this matter has been concluded.”
The complainant’s solicitor wrote to the company on October 30 seeking a rectification of his tax issues without success. The complainant was not paid after this. On 30 January 2016, the complainant wrote to the respondent seeking
1 Reason for suspension
2 Clarification of allegations made
3 Outcome of the investigation
4 P45
He did not receive any response. He also recounted a particularly protracted detail of how he recouped his tools for his trade from the respondent, who held them unnecessarily for 5 week s.
1.3 The complainant secured alternative employment, albeit on a lower wage within a five week period. He contends that he is owed 21 days pay in addition to his four week period of suspension. He reported having made seismic efforts to appraise Revenue and the Department of Social Protection of the respondent’s misrepresentation of his employee status. He sought the redress of compensation in his claims.
The complainant named two companies and an individual name on the complainant form. On the first day of the hearing the respondent representative named the company but the complainant took issue with this as he understood it to be in liquidation/receivership by the time of the resumed hearing on 10 June. Instead he drew the attention of the hearing to the company listed as his Paymaster on the bank statements and obtained a written affirmation of this from the Bank Manager and submitted this in evidence.
The complainant submitted that two of the respondents companies had similar names and the company that he was employed by initially was detailed on the Revenue file as ceasing his employment in November 2014, yet he was paid up until he left on suspension.
The complainant submitted that he had come to work for the respondent as a junior employee and had worked hard to build up to head mechanic in charge of a fleet of 200 trucks. He submitted that he had suffered greatly by the actions of the respondent in that he was now earning less in a new job and having to set about proving himself through probation all over again .
2 Respondent’s Submission and Presentation:
2.1 The respondent representative submitted a leaf of papers to the WRC which were largely undated .These referred to a series of emails 22 October -27 October 2015.
They commenced with an email from the Financial Controller to the complainant on 22 October 2015
“With your agreement you are now invoicing X company for 2015 for €750 per week .Total €39,000.A copy of your P 45 will be forwarded to you for 2014…….You will pay your tax personally …….please confirm your agreement to this? If you wish to change any option please let us know in writing and we will be happy to oblige “
This was followed by an email from the complainant seeking confirmation of his reinstatement as a PAYE worker and confirmation that tax matters had been finalised.
2.2 There was a further undated email which purported to be a response to the complainant’s solicitors stating that:
“Due to mistakes made between the parties which misled the company into the view that Mr X was self employed, we now demand the following ……”
This referred to tax matters and the email post dated the last day of employment.
On 15 March 2016, the respondent approached the WRC seeking clarification on which of the three companies named on the complaint form was the subject of adjudication. The company was aske to attend the hearing to address the Adjudicator on those issues.
2.3 On the first day of the hearing the respondent sought an adjournment based on their stated intention of initiating proceedings with a Gardaí and the High Court in response to missing stock at the garage.
2.4 Again on the first day of the hearing, the respondent representative sought to give some background .In November 2014, the respondent transferred 12 employees to different companies. There was no formal notification of this turn of events. There was nothing further adduced by the respondent.
2.5 The respondent declined to attend the resumed hearing on June 10th 2016.The Hr Company who represented the respondent on the first day of hearing came off record on June 1 2016.
3 Decisions:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8(1B) of the Unfair Dismissals Act, 1977 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 Act .
Section 6 of the Payment of Wages Act 1991 requires that I make a decision in relation to Section 4 and 5 of the Act.
Section 7 Terms of Employment Act 1993 requires me to make a decision in accordance with Section 5 of the Act.
Regulation 18 of the EC Regulations 2012 (S.I 36/2012) requires that I make a decision in this case in accordance with section 12 of the Regulations.
3.1 Preliminary Issues:
The respondent secured a postponement in advance of the first hearing and sought another hearing on the first day of hearing. This was refused on the basis that the employment issues were clearly first in time procedurally and there was no evidence of any proceedings lodged against the complainant in the civil / criminal courts.
In addition, I have based my findings and conclusions in this case on the fact that the complainant is a direct employee and not self employed. Matters for Revenue and DSP will need to be addressed subsequently.
3.2 I have considered the oral and written submissions on behalf of the complainant over the course of both days’ hearings. In light of the lack of sustained representation on behalf of the respondent, I resumed the hearing to fulfil the requirements of Section 41 of the Workplace Relations Act, where both parties are to be given an opportunity to be heard. In addition, I was conscious of the burden of proof required by the respondent in the Unfair Dismissal case and the EC Regulations 2012 and felt it best to make all reasonable efforts to invite an attendance on behalf of the respondent . I must now accept that this attendance was not forthcoming.
3.3 UnfairDismissal Act
Sec 6(1) of the Unfair Dismissal provides that the dismissal of an employee shall be deemed, for the purposes of the Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
Based on the uncontested evidence adduced at the hearing. I find that there were no active proceedings against the complainant from the Gardaí or via a Statement of Claim at the High Court. The description of these proceedings in the respondent letter of 18 April 2016, one day before the first hearing was at best anticipatory and not grounded in fact. I find these matters were used to seek to detract from the running of the case.
I find that the complainant was subjected to an extended period of gross misrepresentation of his employment status by the respondent, which was clarified ultimately by the Financial Controller of the respondent company sometime during the complainant’s suspension. This clarification was not acted on.
Based on the facts before me, I find that the complainant was summarily dismissed by text without any reliance by the respondent on due process or fair procedures of any shape or kind. The treatment of the complainant fell far short of the reasonableness criterion set down in 5(b) of The 1993 Act. Procedures surrounding a dismissal must comply with the general principles of natural justice and fair procedures. Placing an employee on suspension by text then abandoning the matter falls seriously short of what I would expect a reasonable employer to do. In the case of any suspected wrong doing there are clear guidelines available in the Code of Practice:
“The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, 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”.
1 Details of allegations must be put to the accused
2 The employee must be given the opportunity to respond
3 The employee must be given an opportunity to avail of representation
4 Right to a fair and impartial determination of issues being investigated
(Code of Practice on Disciplinary Procedures, Declaration Order 2000 and SI No 146)
I find that the actions of the respondent in moving around the operating companies without adequate consultation to have placed the complainant in an unenviable position of “ employment Limbo” where he was severely penalised when he sought to right that wrong .
In the instant case, I can find no grounds to justify the dismissal, given the silence from the respondent on this aspect of the claim.
In the High Court case of Bank of Ireland v Reilly {2015} IEHC 241 Noonan J remarked that “the suspension of an employee, whether paid or unpaid, is an extremely serious matter which can cause irreparable damage to his reputation and standing .It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his future career “
I am struck by certain analogies in both cases; however, while Reilly was awarded reinstatement, I do not find that course of action practical in this situation. I find that the complainant could have submitted an appeal to his suspension and termination but decided not to. I appreciate that the considerable discord between the parties may have militated against the appeal; however, it was a course of action open to him.
There is a lack of clarity on the composition of the complainant’s salary payments from November 2014; I find that it was not within the gift of the complainant to explain the nuances to me. I reviewed bank statements which recorded the payments that I relied on in my deliberations. The fact that there were no payslips after 2014 caused me some concern.
I am mindful of 7(2) of the Act which provides for direction on the calculation of compensation payable under the Acts. I find that, given the major role played by the respondent in the summary dismissal followed by the fact the complainant found work within a 5 week period post 30 October 2015, I calculate a fair and reasonable compensation award of €14,560 to be paid by the respondent to the complainant having regard for the actual and prospective financial loss suffered by the complainant arising from his dismissal. The Labour Court in a recent case of Nuredale t/a Panda Waste v Robert Burke UDD163 recognised the need to award compensation for actual and prospective loss; I see that this case is well served by that direction. In addition, the complainant is to receive a properly dated P45 to take account of his continuous service 2011-2015.
3.4. S.I. No. 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.
Obligations on employer are set down in Section 12 of the regulations.
12. An employer shall do each of the following in relation to each mobile worker employed by him or her:
(a) maintain a record of the working pattern of the mobile worker in relation to driving, other work, breaks, daily and weekly rest periods and periods of availability;
(b) request from the mobile worker details of any time worked by that worker for another employer and of any periods of work coming within the scope of Regulation 6(5) of the Council Regulation;
(c) include time worked for another employer in the calculation of the mobile worker’s working time;
(d) keep records which are adequate to show that these Regulations are being complied with;
(e) retain records referred to in this Regulation for at least 2 years after the end of the period covered by those records;
(f) provide, at the request of the mobile worker, a copy of the record of hours worked by that worker;
· (g) provide to an enforcement officer such records relating to the mobile worker or other mobile workers as the officer may require;
In light of the lack of evidence adduced by the respondent in respect to this aspect of the claim, I find the complaint to be well founded and I award two weeks compensation of €1,500 to be paid by the respondent to the complainant in respect of these breaches.
Terms of Employment Act 1994
Section 5(1) provides Subject to sub section (2) whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under ss 3, 4, 6 the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than 1 month after the change takes effect.
I accept that the complainant was given a statement of terms of employment on commencement of employment, which referred to him being a HGV driver. He did not have a handbook or a job description .I accept that the events surrounding the rotation of companies in November 2014 which was submitted by the complainant and affirmed by the respondent representative signaled an extraordinary change which should have been notified in writing to the complainant. There is no evidence before me that this occurred and in fact all evidence adduced to date points to a complete avoidance by the respondent of the management of this key development. I find that this is a breach of Section 5 of the Act and the complaint is well founded .I award two weeks compensation, €1,500 under Section 7 (d) of the Act.
Payment of Wages Act 1991
The Law
Section 5 of the Act states:—(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.
(2) An employer shall not make a deduction from the wages of an employee in respect of—
(a) any act or omission of the employee, or
(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,
I accept that the complainant did not get paid as expected on October 30 2015. Evidence was given at the hearing that other colleagues got paid on that day. Having reviewed the history of the bank statements which pointed to weekly payments and in the absence of contrary evidence from the employer. I find that the complaint is well founded and I award the sum of €750 in compensation for the breach of section 5 of the Act. Shamrock Farm Enterprise ltd v Ciaran Deasy PWD 1617 applies .
The complainant asked that I consider claims for annual leave and public holidays but they are not listed on the complaint form and the respondent has not been placed on notice of these claims.
In conclusion, I award the complainant the sum of €18,310 in compensation for breaches under the Acts .I have checked the status of the company name referred to in this decision with the company registration office and I find it to be actively trading .
Patsy Doyle Adjudication Officer.