ADJUDICATION OFFICER DECISIONS & RECOMMENDATION
A plumbing firm
Complaints and dispute:
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
On the 1st November 2018, the complainant presented complaints to the Workplace Relations Commission pursuant to the Unfair Dismissals Act and the Payment of Wages Act, as well as a dispute pursuant to the Industrial Relations Act. They were referred to adjudication on the 20th February 2019. The complainant was represented by SIPTU and one witness appeared on his behalf. The respondent was represented by IBEC and four witnesses attended on its behalf.
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Section 13 of the Industrial Relations Acts 1969following the referral of the complaints and dispute to me by the Director General, I inquired into the complaints and dispute and gave the parties an opportunity to be heard and to present any evidence relevant to the complaints and dispute.
The complainant was employed by the respondent from the 1st May 2008 to the 15th August 2018. He was dismissed on grounds of misconduct, having been given a written warning and a final written warning. He was dismissed with six weeks’ notice. The complainant asserts that the dismissal was unfair, while the respondent refutes this.
Summary of Respondent’s Case:
The respondent outlines that on the 25th June 2018, the complainant was invited to an investigation into discrepancies in his driving hours claim. It was put to the complainant that his claim did not tally with official records. He was also advised that the respondent had identified other days when his vehicle was off the road for long periods of the working day. It was put to the complainant that the overtime claim did not tally with his actual start and finish times for the 12th, 24th April and the 3rd and 9th May. The respondent relied on downloads from the vehicle’s tracking device. The complainant was also asked why he was off the road for long periods on the 5th, 6th and 7th June.
The matter proceeded to a disciplinary hearing on the 14th August. The respondent did not accept the complainant’s explanation of not knowing the overtime structure, given that he had worked for it for 10 years. The respondent did not accept his explanation that he could claim double-time for coming into work early, when the policy was clear that it was time and a half. The respondent also noted that the complainant could not explain why he had been parked up at home, when the policy was to return to base when a delivery was complete. The disciplinary manager outlined that the complainant said that he might have been at a funeral on one of the days and did not say that he had cleared this with the supervisor.
The respondent outlined that the letter of invitation to the preliminary investigation did not state specific dates, but the June dates were identified at the meeting. It submitted that the findings of the investigation did not go beyond the disciplinary policy and the matter was referred to the disciplinary manager. The respondent said that the complainant’s colleague attended the investigation meeting so would have given whatever explanation there was. The respondent said that it refused the complainant’s request that the investigation be a chat and not a formal meeting. It was a formal preliminary investigation and could not be just a chat.
The respondent submitted that the issues raised in the disciplinary process were all conduct issues, even though they were of a different nature (for example strapping, unloading a vehicle and submitting an overtime claim).
The respondent outlined that in reaching the decision to dismiss the complainant, it considered the warnings issued in November and December 2017. While the letter of dismissal referred to a warning in 2014, this were not considered. The respondent stated that the letter of 15th August addressed the issues of claiming double time and not time a half, as well as claiming too many hours. After receiving the overtime claim in June, the respondent looked at records for that month, identifying the 5th, 6th and 7th June as issues. He had been parked up at home on these days. The warning in 2014 related to a period of four hours where the complainant had been parked up.
The respondent submitted that the tracking information is used as part of the overtime process. While the document relating to the introduction of the vehicle tracking system did not refer to the information being used in a disciplinary process, it did state that drivers cannot be exempt.
Summary of Complainant’s Case:
The complainant asserted that the dismissal was unfair. He submitted overtime claims in order to acquire time off in lieu. He submitted the claims when he started early, for example at 7.15am. There was a flexible system with no scheduled breaks or clocking in. The complainant said that he was paid for five days claimed as overtime.
The complainant said that his official start time was 8.15am and he could have 2 to 15 deliveries per day. Every day was different and involved making deliveries to building sites. Breaks were staggered according to the work. They might load up in the afternoon for the next day, especially if it was a country day.
When the complainant submitted the claim for five days, tracker information was provided for these and other days. In respect of 12th April, he attended work one hour early at 7.15 am and claimed for two hours. He left with the deliveries at 7.30am. The issue of being parked up arose for the 5th, 6th and 7th June. There was no issue with being parked up in April or May. The complainant had been paid overtime before and this was done through a form completed by the foreman and not by the complainant.
In 2014 or 2015, he had parked the van at home over Christmas as they were doing work on the facility. In 2018, he sometimes parked the van at home when he was late returning. He agreed this with his supervisor, in attendance at the adjudication. The complainant said at the disciplinary hearing that there was always a reason for being parked up. He always acted in good faith.
The complainant outlined that a driver would call the supervisor to take time off and no records were kept. He called in regarding taking time off during the day. He never claimed overtime aside from stock takes and did not know of the official form. He submitted the overtime claim because he needed time off because his wife was having an operation. The complainant had no recollection of the 2014 warning. His supervisor said that he also could not recall the 2014 warning, even though the document refers to him being in attendance.
Following the dismissal, the complainant said that he started new employment in December 2018 as a part-time bus driver for a tour company.
The complainant submitted that the Payment of Wages claim relates to 18 hours of overtime for the period of the 22nd May to the end of his employment. He seeks €331. As part of the Industrial Relations dispute, the complainant seeks €3,806.60, being the shortfall in salary paid to him since 2014.
Findings and Conclusions:
This is a complaint pursuant to the Unfair Dismissals Act. On the 15th August 2018, the complainant was dismissed on grounds of misconduct in the light of previous warnings. He was paid six weeks’ notice pay. The letter of dismissal places emphasis on the final written warning of 22nd December 2017, which stated “If you fail to correct the above problem/s or there are any more instances of misconduct, then further disciplinary action may be taken against you, which could lead to your dismissal from the company. I sincerely hope no further formal action will be necessary.”
The letter of dismissal refers to warnings from 2014 and the two from 2017. The 2014 warning was potentially significant as it related to parking up at home, i.e. what the complainant was accused of doing in 2018. The complainant and his supervisor did not agree that a warning was issued in 2014. In any event, I note that the respondent did not rely on the 2014 warning, even though it is referred to in the letter of dismissal. The first 2017 warning arose from a delivery made to a construction site. The respondent concluded that the complainant refused to deliver an order, something he vehemently denied, stating that he had looked for a forklift to take the items off the vehicle. The second warning arose when items became dislodged from the vehicle because they were insufficiently strapped.
The matters leading to the 2018 disciplinary process arise from the complainant seeking overtime. “Fixed overtime” was always part of the complainant’s remuneration, but what he now sought overtime from attending work before the scheduled start time of 8.15am. He submitted a claim for 10 hours worked over five days in April and May 2018. He was paid this overtime. He then sought additional hours of overtime worked on seven days in May and June, including country trips and stocktaking.
The respondent investigated the hours worked by the complainant and concluded he was also parking up during the working day. It relied on tracker data, which the complainant objected to being used in a disciplinary process. The respondent asserts that this showed that the complainant was off-road during the working day. On the 5th June, for example, the print-out shows that the complainant started work at 6.58am and was at home between 9.55 and 11.11am.
Where the employer dismisses an employee for misconduct following a series of warnings, it must show that this decision was within the range of reasonable responses and that fair procedures were adhered to.
In Boots Retails Ireland Ltd v Glogoski (UDD187), the Labour Court held “… the Court's role is to decide on whether or not the employer's decision was reasonable such that it was properly arrived at by virtue of being based on up-to-date and relevant information which had been considered through appropriate processes applied in a consistent manner in accordance with basic fairness and in observance of the rights of fair procedures.” Here, the Labour Court upheld the decision to dismiss the employee after a series of warnings as “fair and reasonable in that it was arrived at following the application of the [Employer]’s Performance Leadership Policy processes and its Disciplinary Policy processes, which processes were applied in accordance with the [Employee]’s rights to fair procedures.”
In A.T. Donovan Ltd v Flynn (UDD1923), the Labour Court determined that the employer acted reasonably in dismissing the employee for misconduct, having regard to the “cumulative effect of the various incidents” and warnings involving inappropriate conduct towards colleagues and not following management instructions.
The complainant makes the strong case that no misconduct occurred in respect of the overtime claims and the parking up issue. I note that the complainant had not previously sought overtime for early starts in his years working for the respondent. He made an initial claim for five days and was paid this claim. Even if he over-claimed (double time and not time and a half), this is an error and not an act of dishonesty. The parking up issue arose while looking through the complainant’s working day. I note that the role involved collecting product from the respondent’s facility and delivering it to construction sites across the country. The complainant took breaks when he could, and the system was flexible. I accept that the complainant obtained permission from the supervisor, who gave supporting evidence at the adjudication hearing. I note that the complainant explained why he had parked up on certain days, for example to attend a funeral on the 5th June 2018. I also note that the complainant offered to repay any amount in excess of the allowable overtime. Taking these factors together, the overtime and parking up issues do not amount to misconduct.
Having regard to the Labour Court authorities above, even if the complainant did something wrong in submitting the claim and in parking up, I note that this differed to the incidents that led to the 2017 warnings. There was no other issue with the complainant’s working time or driving hours. This issue was less significant than, say, properly securing a load to the vehicle. It was an issue readily picked up in the verification process for overtime claims. The complainant knew that there was a tracking system on his vehicle, so the respondent would easily find out the times he parked up. Taking these factors, this issue was not part of a “cumulation” of wrongdoing and nor was it reasonable to deem it grounds for dismissal. Even with the existence of a live final written warning, the issue was either not misconduct or of enough significance to dismiss the complainant. The complaint of unfair dismissal is, therefore, well founded.
In assessing redress, I note that the date of dismissal was the 15th August 2018 and the complainant was paid six weeks of notice pay. He commenced part-time employment in December 2018. I expect that the complainant will progress to full-time employment in his new role or in another role. The complainant incurred financial loss in the time after the end of the notice period to the commencement of his new employment. Taking these losses together, I award the complainant €9,000 as redress that is just and equitable.
This is a dispute pursuant to the Industrial Relations Act regarding the historic payment of wages. The complainant says that he was underpaid in recent years, something normally addressed via a Payment of Wages complaint for wages that were “properly payable” but deducted by the employer. Each December, the respondent set out the outcome of the annual salary review for the following year. On receiving the letter, the complainant did not object in writing or say that there was a breach of contract. Having considered the circumstances, I do not make a recommendation in favour of the complainant.
This is a complaint pursuant to the Payment of Wages Act. The complainant was paid for ten hours of overtime and says that he is due an additional 18 hours of overtime. Applying the rate of time and a half, he seeks €331 as redress for unpaid overtime. I note that the respondent paid the first claim for overtime, but matters moved to the disciplinary process and the complainant’s ultimate dismissal. I find that the complainant is due the €331 in overtime. I accept that he worked the additional hours and should be paid the outstanding overtime due to him.
Decisions and recommendation:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint 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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is well founded and I award redress of €9,000.
I do not make a recommendation in the complainant’s favour.
I find that the complaint pursuant to the Payment of Wages Act is well founded and the respondent shall pay redress to the complainant of €331.
Dated: 16th August 2019
Workplace Relations Commission Adjudication Officer:
Unfair Dismissals Act / dismissal following warnings
Boots Retails Ireland Ltd v Glogoski (UDD187)