Complainant

Respondent

Parties

James  Whelan

Kb Event Trucking Limited

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00058826-001

14/09/2023

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

CA-00058826-002

14/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00058826-003

14/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00058826-004

14/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00058826-005

14/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00058826-006

14/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00058826-007

14/09/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00058826-012

14/09/2023

The complainant submitted that he worked excessive hours, that he did not receive a premium for working Sundays, that there were changes to his terms of employment, that there were deductions made and that he was unfairly dismissed.

It was submitted that the complainant was not given compensation for working on a Sunday and that the hours on his contract were 45 hours week and there was no compensation for outside those hours, and he worked Sundays that he was not given a premium for working Sunday when he drove for the company and stayed in the truck. 

The complainant submitted that he commenced employment on 19/10/2021 and his employment ended on 18/06/2023 and his salary was €42,000 and was informed that his position was made redundant and did not receive redundancy payment owing to his length of service.

The complainant submitted that he had enjoyed his employment and that he was unfairly dismissed in an unfair process and that the respondent brought his personal life into question using it as a reason for redundancy and was not offered roles before he was terminated.  He was told by the respondent that because he was living in the UK his role was gone as it was not compliant with his Irish licence requirements and this was untrue.  On 03/05/2023 he was advised his position was at risk of redundancy and 11/05/2023 there was a first consultation regarding redundancy and 19/05/2023 there was another consultation meeting, and he was on garden leave until 18/06/2023.  He had submitted a grievance and during his appeal it was brought to his attention that employees had joined the company and he was not informed of these roles and was told it was for him to apply for any roles that he was interested in.  As the complainant was on garden leave, he had to return all company property including his work laptop and work phone, and therefore did not realise it was expected of him, to still use the app to enquire about jobs.  He was not offered suitable alternative employment and he had told the respondent that he would take on a driving role, but no further conversations happened.  The complainant had previously advised Mr X and a colleague Mr Y that he would take on driving work to support shortage of drivers and was assigned a vehicle and then without notice the job was no longer available .  The complainant had been told on 11/05/2023 that the respondent did want to lose him and although a step down in the direction he wanted he did agree in principle with Mr Y to take on a driving role, but the respondent did not make this happen.

He became aware of a driver position very late in process and was told he would be subject to the performance requirements of a driver.  On 16/05/2023 the complainant was asked to take on a driving role to London and the complainant asked to be in back in the yard that night, as he did not have gear to sleep out.   The complainant phoned in sick for the first time in his career on 17/05/2023 with work-related stress due to the treatment and the complainant was advised that the new driving role was given to another "new" employee. This has resulted in a large financial loss to the complainant  due to the potential earnings that he could have earned as a driver. During week commencing 15/05/2023 there was a series of emails leading the complainant to believe that the outcome was already made. And then in an email of 18/05/2023

"As you have correctly stated you are the only person based in that location, which is possibly due to be closed, hence the reason your role is at risk of redundancy",

which he submitted was a complete and false reason, as the company would not be able to operate from lreland unless  the complainant completed the role in a part-time capacity or outsourced the role voiding the "risk of redundancy" reasoning.  At no point, up until the day prior to potential termination date, was there mention of the Limerick site potentially closing.  lt may have been mentioned that the company was cutting costs, but at no point did the complainant know the lrish site was at risk, because all the time there, the reason for employment was to set up an EU base and become an EU hub and with over 50% of the work in mainland Europe based, it was a necessity for the lrish site to remain open. The complainant submitted that following the February meeting he cut costs.  On 16/05/2023 he received an invite to a meeting of 19/05/2023  whereby the outcome of the consultation period would be confirmed, and he was confused as to whether the meeting of 19/05/2023 was still part of the consultation process. The complainant put forward more than 8 points for discussion, and prior to an adjournment at 16:12pm,  the meeting was then recommenced at 16:27pm, meaning his submissions were not taken into consideration.  The complainant submitted there was a prejudged outcome prior to attending that meeting on 19th May 2023.  He submitted that the consultation process should have been two weeks from the first initial meeting on 11/05/2023 meaning consultation period would have ended on 25/05/2023 and throughout the appeal hearing chaired by Natalie Calladine (Head of Finance) none of his points were addressed.

On 02/04/2023 he travelled from UK to lreland via boat and when he got to the boat his boat ticket order had been cancelled and he called Mr X regarding the cancellations, who brought the complainant’s personal life was brought into the conversation, and Mr X said it is noted that you have been ‘shacked up with some bird up the road’ and that the use of a company vehicle was an unfair use of company property and that the complainant should have replaced diesel.  On 02/05/2023 the complainant had annual leave day booked off and was issued a letter on the Wednesday by Mr X and Ms Z, informing him his role was at risk of redundancy and the first paragraph of the letter stated

"We recently became aware that you have moved house and are now living in the UK and as such risks our compliance with O license requirements in lreland".

No one had a conversation with him prior to this about his living arrangements and the complainant’s contract stated he was required to be 2 out of every 4 weeks in the UK, and at meetings the complainant was open and honest and stated that he was still a resident in lreland and enjoyed spending some free time in the UK. His personal life should not have been brought into the meetings and it is irrelevant as the complainant lives in Ireland, pays into an Irish bank account in Irish currency and pays taxes in Ireland and was a resident in Ireland.  The complainant submitted that the respondent changed their storyline stating it was irrelevant where he lived.   The respondent used the redundancy process to scapegoat him and he was extremely upset that all the hard work was all for nothing and he had to suffer the embarrassment comments and rumours "been fired" or "getting the sack" He was not offered roles before he was terminated. 

The complainant’s evidence was that during the cognisable period of 15/03/2023 – 14/09/2023 the complainant worked 2 Sundays namely, 23/04/2023 and 30/04/2023 and did not receive the Sunday premium that he had an entitlement to and that his contract refers to 45 hours per week and that he would work Monday till Friday.

The complainant said during the cognisable period he had to hire a car to undertake work duties and that there were delays in returning the car and there was agreement about hiring it for 3 days, but it was 6 days that it was hired for.  He was unable to get in contact with his line manager who was on annual leave and had to make a decision.  He confirmed that he has emailed confirming the deductions.

His evidence was that he worked hard and was trained as a transport manager and had a passion for the industry with opportunity to grow.  Up to his dismissal trained many employees, working many hours.  A new manager joined the company and was complimentary of the complainant but in 2023 Mr X arrived and everything seemed to go downhill with his arrival and Mr X is no longer an employee as he was let go.  The complainant’s role was 2 weeks in Ireland 2 weeks in the UK and at times was required to drive trucks.  The complainant never knew that Mr X was going to be his manager until he saw an internal email.  The complainant would normally have his expenses approved but the complainant was willing to work with Mr X who A criticised his expenses around February 2023 and there were emails about the complainant’s expenses.  Some senior managers left because of Mr X.  His dismissal was owing to the behaviour of Mr X who seemed to call the shots at the time until his employment was ended by the respondent.  On an occasion when they were out for dinner Mr X would not pay for the meal and M X was terminated by the respondent in March 2024 as a result of the way he dealt with matters.  His evidence was that the respondent had him on call 24/7 despite his contract stating Monday till Friday and he had to take phone calls regularly and did not get extra compensation.

The complainant said his employment ended on 18/06/2023 and he secured employment on 03/09/2023 on a salary of 31,200 which increased on 01/03/2024 to 35,000 and that he has applied for jobs in the UK but not outside of transport and did not forward details of the jobs that he had applied for.  During the cognisable period he had to hire a car to undertake work duties and that there were delays in returning the car and there was agreement about hiring it for 3 days but it was 6 days that it was hired for.  He was unable to get in contact with his line manager who was on annual leave and had to make a decision.  He was told there was an investigation into the matter of the hire car and damages to the car hire.  The complainant agreed deductions on 29/03/2023 and that the car hire was from 04/01/2023 until 16/01/2023.  The respondent had told him there would be an investigation into him hiring the vehicle and that the vehicle had been damaged.  It was his belief that the expenses should not have been deducted as he would not have been able to do the work without the car hire.  It was possibly his fault not to return it on time and he advised the respondent he would allow the deductions from his pay but raised it as a grievance as he felt that he had needed the car for work and that it was the respondent’s responsibility to provide it.  It was not fair that the expenses were scrutinised in the manner in which they had been scrutinized.   His evidence was that he was hired as a Transport Manager and he got a risk of redundancy letter on 03/05/2023 which referred to him as a front-line transport manager and this letter with the job title does not reflect the terms of his employment and he was never asked to change his job title.

Under cross examination the complainant said he could not afford to live in Ireland and he has not been looking at jobs in Ireland as that he personal matters to deal with regarding his marriage.  He was aware that there were changes going on in the respondent’s organisation from about 22/08/2022.  He was awaiting on Mr X to provide him with details of travel to return home when he was put on garden leave.  He had been told his expenses would be covered which was a verbal agreement and had been told he could have a credit card by a manager and that another employee was promoted two days before the complainant’s employment ended.  He did not know Mr X was his boss or that he was a level above him as he was not told and that when Mr X started then the complainant’s career ended and went downhill from there.  Discussions about a job driving were not sufficient and that the complainant thought he was going to be getting the lead role of driver but did not as it was given to someone else and the complainant had been offered a job that then disappeared.  The complainant did not chase up the driver’s role as he was dealing with a grievance and an appeal and was on garden leave.  Mr X used things against the complainant as ammunition.

The respondent submitted that the complainant was not paid a premium for working Sundays as he got compensated accordingly with his salary or time in lieu.  On occasion when he worked Sunday’s he got a paid day off and that this would be normal procedure as per the contract of employment.

The contractual hours were Monday to Friday 9am till 6pm and there were obligations in his contract to work within the act.  There is nothing that provides for him working on a Sunday and they accept that on occasion he may have worked on Sunday and that he could have worked within the terms of his contract.  It was submitted that his expenses had been raised with and dealt with and the complainant agreed to deductions as within his contract and the company policy and procedure.  All expenses had been reviewed and there was a cost saving drive across the company which the complainant knew about, and the complainant knew that expenses needed to be approved in advance and he did not get the approval and he was not under duress at the time and was advised of the deductions and agreed to them and specific details of each line of the expenses were explained and this was not part of his grievance.  There had been nothing submitted regarding working excess hours, and it was submitted that the complainant did not work excess hours.  The respondent did not know of any changes to the complainant’s terms and conditions of employment.  The respondent submitted that on 24/08/2022 the complainant was advised about structure change and it references Transport Manager and also references that his roles will change to that of Front-Line Manager.

The respondent rejects that the complainant did not know what the purpose of a consultation meeting was for as it was explained to him in the emails. The role of driver was discussed with him, but he did not avail of his role and the complainant would not have been able to select a truck of choice.  The complainant was not offered the role of HR officer as he was not suitably qualified and he had access to the respondent’s system where jobs are available, and he did not apply for any.  An admin role was available but not offered as it was not a suitable alternative. The shogun is a pool vehicle and not a vehicle just for the complainant and other employees were using it.  The complainant’s role was not outsourced to another person, other people took on some of his tasks and other activities were outsourced.  It was clear what the purpose of the meeting of 19/05/2023 was for which included discussion of annual leave and points raised during consultation meeting.

The respondent submitted that the complainant’s role was no longer available owing to a genuine redundancy and all statutory obligations have been met including appeal, right to be accompanied, details in writing.  All deductions made were with consent and the deduction was for something that was not legitimate business purchase or authorised and the complainant was supported during the process and was not bullied.

He was told there was an investigation into the matter of the hire car and damages to the car hire and of a requirement to engage with Mr X directly regarding an invoice on 03/02/2023.  There had also been an allegation raised against the complainant on 06/02/2023 regarding his behaviour against an employee that was partially upheld.  The complainant was also communicated to regarding his behaviour on 09/03/2023 where he was advised “this isn’t the first time that there have been issues with your communication style”. The complainant was on notice that the respondent was engaged in cost cutting following the email of 17/02/2023 which outlined “please help us manage costs effectively” . 

The evidence of Ms Calladine was that there was no evidence from the tachograph of Sunday working albeit records showed some Sundays worked and that if the complainant had worked Sunday’s appropriate rest had been given.  The complainant’s contract refers to no additional remuneration for additional hours worked.  The complainant has this clause of reasonable amount of overtime for hours worked and there was nothing that suggests that overtime was worked.  She had been with the company since March 2016 and had worked in finance and worked her way up to head of finance and there was a European based started in Ireland and Mr Whelan came on board.  Many competitors also set up an Irish base and after Covid business was very good but then business dropped off and the company started to see some financial difficulties and with many costs they needed to do things more efficiently.  The company did not need an employee in Ireland and could have nominated a person so to make business streamline they found many ways to cut costs.  The MD sat down in February and told the wider team of the need to cut costs and Mr Whelan was told on 03/05/2023 about the risk of redundancy.  This was an informed decision and there was consultation, and it was not possible to provide an alternative role.  On 19/05/2023 the complainant was informed of redundancy and the witness was not directly involved and heard the appeal and his appeal was made up of four main points.  The complainant had claimed unfair failure to have meaningful consultation, and he was given multiple meetings and there was nothing to point to the bias that the complainant had suggested.  The complainant had said there were unclear reasons for redundancy and while it was acknowledged his personal address had been noted this was not a consideration in the decision.  The respondent could not afford inefficiencies and concluded that he was knew he was an expense.  the third point raised was that the complainant felt it was prejudiced but there was no bias and roles had been explored and there was a need for someone in HR who was qualified, and the complainant would not have been qualified for this and another role was not deemed suitable in customer care salary was less, and the complainant was not qualified for the role of project manager.  The complainant said that they could have maintained the Irish operation, but they did not employ anyone for that role and there was no part-time role, and no solution was offered by the complainant.  The witness was informed on 19/05/2023 of the complainant’s redundancy and as part of the appeal the witness reviewed emails.

Under cross examination she said that reference to the complainant’s address was a mistake and she had looked at the minutes and it had been addressed and this should not have been said to the complainant.  She did not interview Mr X as part of the appeal and did not feel the need to interview anyone.  She did know there was a consultation process going on prior to 19/05/2023.  The trusts are not rented vehicles as they are higher purchase vehicles and they respondent needed to maintain them as they are not easy to replace, and this is how business do this.  The complainant had said that he would respond with suggestions, and he did not respond, and the only role offered was a driver.  She understood that the process was difficult for the complainant, and she was sorry that he felt that he was badly treated, and it is not how they like to do business.  To save money they had not replaced the complainant’s role and they are a third party and to be cost effective they deal with a third party.  There was no other suitable alternative employment and there are no plans to recruit in Ireland and they have sought other efficiencies such as outsourcing, and the trucks were ordered prior to covid and at the time they needed to do that.  Two years on they have a dynamic business, and the third-party costs are less, and ancillary costs are less such as telephone and rental and travel and they stopped engaging HR consultancy and sold vehicles.  The trucks purchased were paid off this year and the reason for redundancy was cost efficiencies, streamlining, costs involved with Ireland and that nobody in UK was made redundancy.  She did not believe that the complainant should have seen the business plan and financial data as it was sensitive information.

The complainant submits that he was required to work Sundays and did not receive a premium for those Sundays and the respondent submits that his salary included any premium that might have been required for Sunday working.

I note that the complainant’s evidence was that he worked 2 Sundays during the cognisable period, and it was not disputed that the contract provides that his normal working hours were 45 hours per week, Monday to Friday and that the contract also provides that the employee shall not be entitled to remuneration for additional hours worked outside normal hours.

Section 14 of the Act provides that

“(1) An employee who is required to work on a Sunday (and the fact of his or her having to work on that day has not otherwise been taken account of in the determination of his or her pay) shall be compensated by his or her employer for being required so to work by the following means, namely—

( a) by the payment to the employee of an allowance of such an amount as is reasonable having regard to all the circumstances, or

( b) by otherwise increasing the employee’s rate of pay by such an amount as is reasonable having regard to all the circumstances, or

( c) by granting the employee such paid time off from work as is reasonable having regard to all the circumstances, or

( d) by a combination of two or more of the means referred to in the preceding paragraphs.

(2) Subsection (3) applies to an employee where the value or the minimum value of the compensation to be provided to him or her in respect of his or her being required to work on a Sunday is not specified by a collective agreement.

I find in all the circumstances of the case including that the Sunday premium is specifically provided for within the Act and has not been specifically provided for within the contract and that the complainant was not compensated for the Sunday’s worked I find that the complaint is well founded.

The Labour Court have set out the methodology in the Viking Security v Tomas Valent LCR1489  to determine economic loss using the hourly rate divided by one third .  Taking note that the complainant’s salary was €42,000 and normal daily hours of 9 hours for the 2 Sunday with a premium of €5.98 hourly per Sunday I find that the complaint is well founded and award €107.69  for the economic loss and compensation of €300 for the breach and therefore the total amount owing to the complainant is €407.69.

The complainant submits that the respondent has made an unlawful deduction from his wages arising from hiring a vehicle to bring equipment. 

It was submitted that the complainant was not given compensation for working on a Sunday and that the hours on his contract were 45 hours week and there was no compensation for outside those hours and he worked Sundays that he was not given a premium for working Sunday when he drove for the company and stayed in the truck. 

The complainant submitted that he commenced employment on 19/10/2021 and his employment ended on 18/06/2023 and his salary was €42,000 and was informed that his position was made redundant and did not receive redundancy payment owing to his length of service.

The complainant submitted that he had enjoyed his employment and that he was unfairly dismissed in an unfair process and that the respondent brought his personal life into question using it as a reason for redundancy and was not offered roles before he was terminated.  He was told by the respondent that because he was living in the UK his role was gone as it was not compliant with his Irish licence requirements and this was untrue.  On 03/05/2023 he was advised his position was at risk of redundancy and 11/05/2023 there was a first consultation regarding redundancy and 19/05/2023 there was another consultation meeting and he was on garden leave until 18/06/2023.  He had submitted a grievance and during his appeal it was brought to his attention that employees had joined the company and he was not informed of these roles and was told it was for him to apply for any roles that he was interested in.  As the complainant was on garden leave, he had to return all company property including his work laptop and work phone, and therefore did not realise it was expected of him, to still use the app to enquire about jobs.  He was not offered suitable alternative employment and he had told the respondent that he would take on a driving role but no further conversations happened.  The complainant had previously advised Mr X and a colleague Mr Y that he would take on driving work to support shortage of drivers and was assigned a vehicle and then without notice the job was no longer available .  The complainant had been told on 11/05/2023 that the respondent did want to lose him and although a step down in the direction he wanted he did agree in principle with Mr Y to take on a driving role but the respondent did not make this happen.

He became aware of a driver position very late in process and was told he would be subject to the performance requirements of a driver.  On 16/05/2023 the complainant was asked to take on a driving role to London and the complainant asked to be in back in the yard that night, as he did not have gear to sleep out.   The complainant phoned in sick for the first time in his career on 17/05/2023 with work-related stress due to the treatment and the complainant was advised that the new driving role was given to another "new" employee. This has resulted in a large financial loss to the complainant  due to the potential earnings that he could have earned as a driver. During week commencing 15/05/2023 there was a series of emails leading the complainant to believe that the outcome was already made. And then in an email of 18/05/2023

"As you have correctly stated you are the only person based in that location, which is possibly due to be closed, hence the reason your role is at risk of redundancy",

which he submitted was a complete and false reason, as the company would not be able to operate from lreland unless  the complainant completed the role in a part-time capacity or outsourced the role voiding the "risk of redundancy" reasoning.  At no point, up until the day prior to potential termination date, was there mention of the Limerick site potentially closing.  lt may have been mentioned that the company was cutting costs, but at no point did the complainant know the lrish site was at risk, because all the time there, the reason for employment was to set up an EU base and become an EU hub and with over 50% of the work in mainland Europe based, it was a necessity for the lrish site to remain open. The complainant submitted that following the February meeting he cut costs.  On 16/05/2023 he received an invite to a meeting of 19/05/2023  whereby the outcome of the consultation period would be confirmed and he was confused as to whether the meeting of 19/05/2023 was still part of the consultation process. The complainant put forward more than 8 points for discussion, and prior to an adjournment at 16:12pm,  the meeting was then recommenced at 16:27pm, meaning his submissions were not taken into consideration.  The complainant submitted there was a prejudged outcome prior to attending that meeting on 19th May 2023.  He submitted that the consultation process should have been two weeks from the first initial meeting on 11/05/2023 meaning consultation period would have ended on 25/05/2023 and throughout the appeal hearing chaired by Natalie Calladine (Head of Finance) none of his points were addressed.

On 02/04/2023 he travelled from UK to lreland via boat and when he got to the boat his boat ticket order had been cancelled and he called Mr X regarding the cancellations, who brought the complainant’s personal life was brought into the conversation, and Mr X said it is noted that you have been ‘shacked up with some bird up the road’ and that the use of a company vehicle was an unfair use of company property and that the complainant should have replaced diesel.  On 02/05/2023 the complainant had annual leave day booked off and was issued a letter on the Wednesday by Mr X and Ms Z, informing him his role was at risk of redundancy and the first paragraph of the letter stated

"We recently became aware that you have moved house and are now living in the UK and as such risks our compliance with O license requirements in lreland".

No one had a conversation with him prior to this about his living arrangements and the complainant’s contract stated he was required to be 2 out of every 4 weeks in the UK, and at meetings the complainant was open and honest and stated that he was still a resident in lreland and enjoyed spending some free time in the UK. His personal life should not have been brought into the meetings and it is irrelevant as the complainant lives in Ireland, pays into an Irish bank account in Irish currency and pays taxes in Ireland and was a resident in Ireland.  The complainant submitted that the respondent changed their storyline stating it was irrelevant where he lived.   The respondent used the redundancy process to scapegoat him and he was extremely upset that all the hard work was all for nothing and he had to suffer the embarrassment comments and rumours "been fired" or "getting the sack" He was not offered roles before he was terminated. 

The complainant’s evidence was that during the cognisable period of 15/03/2023 – 14/09/2023 the complainant worked 2 Sundays namely, 23/04/2023 and 30/04/2023 and did not receive the Sunday premium that he had an entitlement to and that his contract refers to 45 hours per week and that he would work Monday till Friday.

The complainant said during the cognisable period he had to hire a car to undertake work duties and that there were delays in returning the car and there was agreement about hiring it for 3 days but it was 6 days that it was hired for.  He was unable to get in contact with his line manager who was on annual leave and had to make a decision.  He confirmed that he has emailed confirming the deductions.

His evidence was that he worked hard and was trained as a transport manager and had a passion for the industry with opportunity to grow.  Up to his dismissal trained many employees, working many hours.  A new manager joined the company and was complimentary of the complainant but in 2023 Mr X arrived and everything seemed to go downhill with his arrival and Mr X is no longer an employee as he was let go.  The complainant’s role was 2 weeks in Ireland 2 weeks in the UK and at times was required to drive trucks.  The complainant never knew that Mr X was going to be his manager until he saw an internal email.  The complainant would normally have his expenses approved but the complainant was willing to work with Mr X who A criticised his expenses around February 2023 and there were emails about the complainant’s expenses.  Some senior managers left because of Mr X.  His dismissal was owing to the behaviour of Mr X who seemed to call the shots at the time until his employment was ended by the respondent.  On an occasion when they were out for dinner Mr X would not pay for the meal and M X was terminated by the respondent in March 2024 as a result of the way he dealt with matters.  His evidence was that the respondent had him on call 24/7 despite his contract stating Monday till Friday and he had to take phone calls regularly and did not get extra compensation.

The complainant said his employment ended on 18/06/2023 and he secured employment on 03/09/2023 on a salary of 31,200 which increased on 01/03/2024 to 35,000 and that he has applied for jobs in the UK but not outside of transport and did not forward details of the jobs that he had applied for.  During the cognisable period he had to hire a car to undertake work duties and that there were delays in returning the car and there was agreement about hiring it for 3 days but it was 6 days that it was hired for.  He was unable to get in contact with his line manager who was on annual leave and had to make a decision..  The complainant agreed deductions on 29/03/2023 and that the car hire was from 04/01/2023 until 16/01/2023.  The respondent had told him there would be an investigation into him hiring the vehicle and that the vehicle had been damaged.  It was his belief that the expenses should not have been deducted as he would not have been able to do the work without the car hire.  It was possibly his fault not to return it on time and he advised the respondent he would allow the deductions from his pay but raised it as a grievance as he felt that he had needed the car for work and that it was the respondent’s responsibility to provide it.  It was not fair that the expenses were scrutinised in the manner in which they had been scrutinized.  His evidence was that he was hired as a Transport Manager and he got a risk of redundancy letter on 03/05/2023 which referred to him as a front-line transport manager and this letter with the job title does not reflect the terms of his employment and he was never asked to change his job title.

Under cross examination the complainant said he could not afford to live in Ireland and he has not been looking at jobs in Ireland as that he personal matters to deal with regarding his marriage.  He was aware that there were changes going on in the respondent’s organisation from about 22/08/2022.  He was awaiting on Mr X to provide him with details of travel to return home when he was put on garden leave.  He had been told his expenses would be covered which was a verbal agreement and had been told he could have a credit card by a manager and that another employee was promoted two days before the complainant’s employment ended.  He did not know Mr X was his boss or that he was a level above him as he was not told and that when Mr X started then the complainant’s career ended and went downhill from there.  Discussions about a job driving were not sufficient and that the complainant thought he was going to be getting the lead role of driver but did not as it was given to someone else and the complainant had been offered a job that then disappeared.  The complainant did not chase up the driver’s role as he was dealing with a grievance and an appeal and was on garden leave.  Mr X used things against the complainant as ammunition.

The respondent submitted that the complainant did not get approval for the car hire and the car that was hired incurred damaged.  The respondent submitted that the complainant was advised on 28/03/2023 that there would be a deduction from his pay in April and May 2023 and that the complainant confirmed acceptance of this on 29/03/2023.

The contractual hours were Monday to Friday 9am till 6pm and there were obligations in his contract to work within the act.  There is nothing that provides for him working on a Sunday and they accept that on occasion he may have worked on Sunday and that he could have worked within the terms of his contract.  It was submitted that his expenses had been raised with and dealt with and the complainant agreed to deductions as within his contract and the company policy and procedure.  All expenses had been reviewed and there was a cost saving drive across the company which the complainant knew about, and the complainant knew that expenses needed to be approved in advance and he did not get the approval and he was not under duress at the time and was advised of the deductions and agreed to them and specific details of each line of the expenses were explained and this was not part of his grievance.  There had been nothing submitted regarding working excess hours, and it was submitted that the complainant did not work excess hours.  The respondent did not know of any changes to the complainant’s terms and conditions of employment. The respondent submitted that on 24/08/2022 the complainant was advised about structure change and it references Transport Manager and also references that his roles will change to that of Front-Line Manager.

The respondent rejects that the complainant did not know what the purpose of a consultation meeting was for as it was explained to him in the emails. The role of driver was discussed with him, but he did not avail of his role and the complainant would not have been able to select a truck of choice.  The complainant was not offered the role of HR officer as he was not suitably qualified and he had access to the respondent’s system where jobs are available, and he did not apply for any.  An admin role was available but not offered as it was not a suitable alternative. The shogun is a pool vehicle and not a vehicle just for the complainant and other employees were using it.  The complainant’s role was not outsourced to another person, other people took on some of his tasks and other activities were outsourced.  It was clear what the purpose of the meeting of 19/05/2023 was for which included discussion of annual leave and points raised during consultation meeting.

The respondent submitted that the complainant’s role was no longer available owing to a genuine redundancy and all statutory obligations have been met including appeal, right to be accompanied, details in writing.  All deductions made were with consent and the deduction was for something that was not legitimate business purchase or authorised and the complainant was supported during the process and was not bullied.

He was told there was an investigation into the matter of the hire car and damages to the car hire and of a requirement to engage with Mr X directly regarding an invoice on 03/02/2023.  There had also been an allegation raised against the complainant on 06/02/2023 regarding his behaviour against an employee that was partially upheld.  The complainant was also communicated to regarding his behaviour on 09/03/2023 where he was advised “this isn’t the first time that there have been issues with your communication style”. The complainant was on notice that the respondent was engaged in cost cutting following the email of 17/02/2023 which outlined “please help us manage costs effectively” . 

The evidence of Ms Calladine was that there was no evidence from the tachograph of Sunday working albeit records showed some Sundays worked and that if the complainant had worked Sunday’s appropriate rest had been given.  The complainant’s contract refers to no additional remuneration for additional hours worked.  The complainant has this clause of reasonable amount of overtime for hours worked and there was nothing that suggests that overtime was worked.  She had been with the company since March 2016 and had worked in finance and worked her way up to head of finance and there was a European based started in Ireland and Mr Whelan came on board.  Many competitors also set up an Irish base and after Covid business was very good but then business dropped off and the company started to see some financial difficulties and with many costs they needed to do things more efficiently.  The company did not need an employee in Ireland and could have nominated a person so to make business streamline they found many ways to cut costs.  The MD sat down in February and told the wider team of the need to cut costs and Mr Whelan was told on 03/05/2023 about the risk of redundancy.  This was an informed decision and there was consultation, and it was not possible to provide an alternative role.  On 19/05/2023 the complainant was informed of redundancy and the witness was not directly involved and heard the appeal and his appeal was made up of four main points.  The complainant had claimed unfair failure to have meaningful consultation, and he was given multiple meetings and there was nothing to point to the bias that the complainant had suggested.  The complainant had said there were unclear reasons for redundancy and while it was acknowledged his personal address had been noted this was not a consideration in the decision.  The respondent could not afford inefficiencies and concluded that he was knew he was an expense.  the third point raised was that the complainant felt it was prejudiced but there was no bias and roles had been explored and there was a need for someone in HR who was qualified, and the complainant would not have been qualified for this and another role was not deemed suitable in customer care salary was less, and the complainant was not qualified for the role of project manager.  The complainant said that they could have maintained the Irish operation, but they did not employ anyone for that role and there was no part-time role, and no solution was offered by the complainant.  The witness was informed on 19/05/2023 of the complainant’s redundancy and as part of the appeal the witness reviewed emails.

Under cross examination she said that reference to the complainant’s address was a mistake and she had looked at the minutes and it had been addressed and this should not have been said to the complainant.  She did not interview Mr X as part of the appeal and did not feel the need to interview anyone.  She did know there was a consultation process going on prior to 19/05/2023.  The trusts are not rented vehicles as they are higher purchase vehicles and they respondent needed to maintain them as they are not easy to replace, and this is how business do this.  The complainant had said that he would respond with suggestions, and he did not respond, and the only role offered was a driver.  She understood that the process was difficult for the complainant, and she was sorry that he felt that he was badly treated, and it is not how they like to do business.  To save money they had not replaced the complainant’s role and they are a third party and to be cost effective they deal with a third party.  There was no other suitable alternative employment and there are no plans to recruit in Ireland and they have sought other efficiencies such as outsourcing, and the trucks were ordered prior to covid and at the time they needed to do that.  Two years on they have a dynamic business, and the third-party costs are less, and ancillary costs are less such as telephone and rental and travel and they stopped engaging HR consultancy and sold vehicles.  The trucks purchased were paid off this year and the reason for redundancy was cost efficiencies, streamlining, costs involved with Ireland and that nobody in UK was made redundancy.  She did not believe that the complainant should have seen the business plan and financial data as it was sensitive information

The complainant submits that deductions were made regarding car hire and damages and that this should not have happened.  The respondent submits that the complainant agreed to the deductions.

I note that the complainant’s contract of employment sets out that an employee will be “repaid all preapproved expenses properly and necessarily incurred” and that the complainant was advised on 28/03/2023 that there was unapproved car hire and parking fine as well as damage associated with a car hire and that this would be deducted from April and May payroll and the complainant confirmed this by email on 29/03/2023. 

Section 5 Regulation of certain deductions made and payments received by employers.

5.— (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,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i)is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

 It is clear that deductions from wages are not permitted except in very particular circumstances.  In PWD222 Homebond Technical Services Limited v Mr David Faulkner the Labour Court found:

“the Complainant never agreed to the deductions concerned, had no way of knowing that the deductions would be made…Ultimately, the Complainant is entitled to the protections of the Act because the Respondent failed to attain the authority necessary under the Act to make the deductions concerned”.

In this instant case the complainant was both fully on notice of the deductions and agreed to same and I find the complaint is not well founded.

The complainant submits that he was required to work more than the maximum number of hours.

It was submitted that the complainant was not given compensation for working on a Sunday and that the hours on his contract were 45 hours week and there was no compensation for outside those hours and he worked Sundays that he was not given a premium for working Sunday when he drove for the company and stayed in the truck. 

The complainant submitted that he commenced employment on 19/10/2021 and his employment ended on 18/06/2023 and his salary was €42,000 and was informed that his position was made redundant and did not receive redundancy payment owing to his length of service.

The complainant submitted that he had enjoyed his employment and that he was unfairly dismissed in an unfair process and that the respondent brought his personal life into question using it as a reason for redundancy and was not offered roles before he was terminated.  He was told by the respondent that because he was living in the UK his role was gone as it was not compliant with his Irish licence requirements and this was untrue.  On 03/05/2023 he was advised his position was at risk of redundancy and 11/05/2023 there was a first consultation regarding redundancy and 19/05/2023 there was another consultation meeting and he was on garden leave until 18/06/2023.  He had submitted a grievance and during his appeal it was brought to his attention that employees had joined the company and he was not informed of these roles and was told it was for him to apply for any roles that he was interested in.  As the complainant was on garden leave he had to return all company property including his work laptop and work phone, and therefore did not realise it was expected of him, to still use the app to enquire about jobs.  He was not offered suitable alternative employment and he had told the respondent that he would take on a driving role but no further conversations happened.  The complainant had previously advised Mr X and a colleague Mr Y that he would take on driving work to support shortage of drivers and was assigned a vehicle and then without notice the job was no longer available .  The complainant had been told on 11/05/2023 that the respondent did want to lose him and although a step down in the direction he wanted he did agree in principle with Mr Y to take on a driving role but the respondent did not make this happen.

He became aware of a driver position very late in process and was told he would be subject to the performance requirements of a driver.  On 16/05/2023 the complainant was asked to take on a driving role to London and the complainant asked to be in back in the yard that night, as he did not have gear to sleep out.   The complainant phoned in sick for the first time in his career on 17/05/2023 with work-related stress due to the treatment and the complainant was advised that the new driving role was given to another "new" employee. This has resulted in a large financial loss to the complainant  due to the potential earnings that he could have earned as a driver. During week commencing 15/05/2023 there was a series of emails leading the complainant to believe that the outcome was already made. And then in an email of 18/05/2023

"As you have correctly stated you are the only person based in that location, which is possibly due to be closed, hence the reason your role is at risk of redundancy",

which he submitted was a complete and false reason, as the company would not be able to operate from lreland unless  the complainant completed the role in a part-time capacity or outsourced the role voiding the "risk of redundancy" reasoning.  At no point, up until the day prior to potential termination date, was there mention of the Limerick site potentially closing.  lt may have been mentioned that the company was cutting costs, but at no point did the complainant know the lrish site was at risk, because all the time there, the reason for employment was to set up an EU base and become an EU hub and with over 50% of the work in mainland Europe based, it was a necessity for the lrish site to remain open. The complainant submitted that following the February meeting he cut costs.  On 16/05/2023 he received an invite to a meeting of 19/05/2023  whereby the outcome of the consultation period would be confirmed and he was confused as to whether the meeting of 19/05/2023 was still part of the consultation process. The complainant put forward more than 8 points for discussion, and prior to an adjournment at 16:12pm,  the meeting was then recommenced at 16:27pm, meaning his submissions were not taken into consideration.  The complainant submitted there was a prejudged outcome prior to attending that meeting on 19th May 2023.  He submitted that the consultation process should have been two weeks from the first initial meeting on 11/05/2023 meaning consultation period would have ended on 25/05/2023 and throughout the appeal hearing chaired by Natalie Calladine (Head of Finance) none of his points were addressed.

On 02/04/2023 he travelled from UK to lreland via boat and when he got to the boat his boat ticket order had been cancelled and he called Mr X regarding the cancellations, who brought the complainant’s personal life was brought into the conversation, and Mr X said it is noted that you have been ‘shacked up with some bird up the road’ and that the use of a company vehicle was an unfair use of company property and that the complainant should have replaced diesel.  On 02/05/2023 the complainant had annual leave day booked off and was issued a letter on the Wednesday by Mr X and Ms Z, informing him his role was at risk of redundancy and the first paragraph of the letter stated

"We recently became aware that you have moved house and are now living in the UK and as such risks our compliance with O license requirements in lreland".

No one had a conversation with him prior to this about his living arrangements and the complainant’s contract stated he was required to be 2 out of every 4 weeks in the UK, and at meetings the complainant was open and honest and stated that he was still a resident in lreland and enjoyed spending some free time in the UK. His personal life should not have been brought into the meetings and it is irrelevant as the complainant lives in Ireland, pays into an Irish bank account in Irish currency and pays taxes in Ireland and was a resident in Ireland.  The complainant submitted that the respondent changed their storyline stating it was irrelevant where he lived.   The respondent used the redundancy process to scapegoat him and he was extremely upset that all the hard work was all for nothing and he had to suffer the embarrassment comments and rumours "been fired" or "getting the sack" He was not offered roles before he was terminated. 

The complainant’s evidence was that during the cognisable period of 15/03/2023 – 14/09/2023 the complainant worked 2 Sundays namely, 23/04/2023 and 30/04/2023 and did not receive the Sunday premium that he had an entitlement to and that his contract refers to 45 hours per week and that he would work Monday till Friday.

The complainant said during the cognisable period he had to hire a car to undertake work duties and that there were delays in returning the car and there was agreement about hiring it for 3 days but it was 6 days that it was hired for.  He was unable to get in contact with his line manager who was on annual leave and had to make a decision.  He confirmed that he has emailed confirming the deductions.

His evidence was that he worked hard and was trained as a transport manager and had a passion for the industry with opportunity to grow.  Up to his dismissal trained many employees, working many hours.  A new manager joined the company and was complimentary of the complainant but in 2023 Mr X arrived and everything seemed to go downhill with his arrival and Mr X is no longer an employee as he was let go.  The complainant’s role was 2 weeks in Ireland 2 weeks in the UK and at times was required to drive trucks.  The complainant never knew that Mr X was going to be his manager until he saw an internal email.  The complainant would normally have his expenses approved but the complainant was willing to work with Mr X who A criticised his expenses around February 2023 and there were emails about the complainant’s expenses.  Some senior managers left because of Mr X.  His dismissal was owing to the behaviour of Mr X who seemed to call the shots at the time until his employment was ended by the respondent.  On an occasion when they were out for dinner Mr X would not pay for the meal and M X was terminated by the respondent in March 2024 as a result of the way he dealt with matters.  His evidence was that the respondent had him on call 24/7 despite his contract stating Monday till Friday and he had to take phone calls regularly and did not get extra compensation.

The complainant said his employment ended on 18/06/2023 and he secured employment on 03/09/2023 on a salary of 31,200 which increased on 01/03/2024 to 35,000 and that he has applied for jobs in the UK but not outside of transport and did not forward details of the jobs that he had applied for.  During the cognisable period he had to hire a car to undertake work duties and that there were delays in returning the car and there was agreement about hiring it for 3 days but it was 6 days that it was hired for.  He was unable to get in contact with his line manager who was on annual leave and had to make a decision.  He was told there was an investigation into the matter of the hire car and damages to the car hire.  The complainant agreed deductions on 29/03/2023 and that the car hire was from 04/01/2023 until 16/01/2023.  The respondent had told him there would be an investigation into him hiring the vehicle and that the vehicle had been damaged.  It was his belief that the expenses should not have been deducted as he would not have been able to do the work without the car hire.  It was possibly his fault not to return it on time and he advised the respondent he would allow the deductions from his pay but raised it as a grievance as he felt that he had needed the car for work and that it was the respondent’s responsibility to provide it.  It was not fair that the expenses were scrutinised in the manner in which they had been scrutinized.  His evidence was that he was hired as a Transport Manager and he got a risk of redundancy letter on 03/05/2023 which referred to him as a front-line transport manager and this letter with the job title does not reflect the terms of his employment and he was never asked to change his job title.

Under cross examination the complainant said he could not afford to live in Ireland and he has not been looking at jobs in Ireland as that he personal matters to deal with regarding his marriage.  He was aware that there were changes going on in the respondent’s organisation from about 22/08/2022.  He was awaiting on Mr X to provide him with details of travel to return home when he was put on garden leave.  He had been told his expenses would be covered which was a verbal agreement and had been told he could have a credit card by a manager and that another employee was promoted two days before the complainant’s employment ended.  He did not know Mr X was his boss or that he was a level above him as he was not told and that when Mr X started then the complainant’s career ended and went downhill from there.  Discussions about a job driving were not sufficient and that the complainant thought he was going to be getting the lead role of driver but did not as it was given to someone else and the complainant had been offered a job that then disappeared.  The complainant did not chase up the driver’s role as he was dealing with a grievance and an appeal and was on garden leave.  Mr X used things against the complainant as ammunition.

The respondent submitted that there was an expectation as set out in the contract to work reasonable overtime which the complainant did.

The contractual hours were Monday to Friday 9am till 6pm and there were obligations in his contract to work within the act.  There is nothing that provides for him working on a Sunday and they accept that on occasion he may have worked on Sunday and that he could have worked within the terms of his contract.  It was submitted that his expenses had been raised with and dealt with and the complainant agreed to deductions as within his contract and the company policy and procedure.  All expenses had been reviewed and there was a cost saving drive across the company which the complainant knew about, and the complainant knew that expenses needed to be approved in advance and he did not get the approval and he was not under duress at the time and was advised of the deductions and agreed to them and specific details of each line of the expenses were explained and this was not part of his grievance.  There had been nothing submitted regarding working excess hours, and it was submitted that the complainant did not work excess hours.  The respondent did not know of any changes to the complainant’s terms and conditions of employment. The respondent submitted that on 24/08/2022 the complainant was advised about structure change and it references Transport Manager and also references that his roles will change to that of Front-Line Manager.

The respondent rejects that the complainant did not know what the purpose of a consultation meeting was for as it was explained to him in the emails. The role of driver was discussed with him, but he did not avail of his role and the complainant would not have been able to select a truck of choice.  The complainant was not offered the role of HR officer as he was not suitably qualified and he had access to the respondent’s system where jobs are available, and he did not apply for any.  An admin role was available but not offered as it was not a suitable alternative. The shogun is a pool vehicle and not a vehicle just for the complainant and other employees were using it.  The complainant’s role was not outsourced to another person, other people took on some of his tasks and other activities were outsourced.  It was clear what the purpose of the meeting of 19/05/2023 was for which included discussion of annual leave and points raised during consultation meeting.

The respondent submitted that the complainant’s role was no longer available owing to a genuine redundancy and all statutory obligations have been met including appeal, right to be accompanied, details in writing.  All deductions made were with consent and the deduction was for something that was not legitimate business purchase or authorised and the complainant was supported during the process and was not bullied.

He was told there was an investigation into the matter of the hire car and damages to the car hire and of a requirement to engage with Mr X directly regarding an invoice on 03/02/2023.  There had also been an allegation raised against the complainant on 06/02/2023 regarding his behaviour against an employee that was partially upheld.  The complainant was also communicated to regarding his behaviour on 09/03/2023 where he was advised “this isn’t the first time that there have been issues with your communication style”. The complainant was on notice that the respondent was engaged in cost cutting following the email of 17/02/2023 which outlined “please help us manage costs effectively” . 

The evidence of Ms Calladine was that there was no evidence from the tachograph of Sunday working albeit records showed some Sundays worked and that if the complainant had worked Sunday’s appropriate rest had been given.  The complainant’s contract refers to no additional remuneration for additional hours worked.  The complainant has this clause of reasonable amount of overtime for hours worked and there was nothing that suggests that overtime was worked.  She had been with the company since March 2016 and had worked in finance and worked her way up to head of finance and there was a European based started in Ireland and Mr Whelan came on board.  Many competitors also set up an Irish base and after Covid business was very good but then business dropped off and the company started to see some financial difficulties and with many costs they needed to do things more efficiently.  The company did not need an employee in Ireland and could have nominated a person so to make business streamline they found many ways to cut costs.  The MD sat down in February and told the wider team of the need to cut costs and Mr Whelan was told on 03/05/2023 about the risk of redundancy.  This was an informed decision and there was consultation, and it was not possible to provide an alternative role.  On 19/05/2023 the complainant was informed of redundancy and the witness was not directly involved and heard the appeal and his appeal was made up of four main points.  The complainant had claimed unfair failure to have meaningful consultation, and he was given multiple meetings and there was nothing to point to the bias that the complainant had suggested.  The complainant had said there were unclear reasons for redundancy and while it was acknowledged his personal address had been noted this was not a consideration in the decision.  The respondent could not afford inefficiencies and concluded that he was knew he was an expense.  the third point raised was that the complainant felt it was prejudiced but there was no bias and roles had been explored and there was a need for someone in HR who was qualified, and the complainant would not have been qualified for this and another role was not deemed suitable in customer care salary was less, and the complainant was not qualified for the role of project manager.  The complainant said that they could have maintained the Irish operation, but they did not employ anyone for that role and there was no part-time role, and no solution was offered by the complainant.  The witness was informed on 19/05/2023 of the complainant’s redundancy and as part of the appeal the witness reviewed emails.

Under cross examination she said that reference to the complainant’s address was a mistake and she had looked at the minutes and it had been addressed and this should not have been said to the complainant.  She did not interview Mr X as part of the appeal and did not feel the need to interview anyone.  She did know there was a consultation process going on prior to 19/05/2023.  The trusts are not rented vehicles as they are higher purchase vehicles and they respondent needed to maintain them as they are not easy to replace, and this is how business do this.  The complainant had said that he would respond with suggestions, and he did not respond, and the only role offered was a driver.  She understood that the process was difficult for the complainant, and she was sorry that he felt that he was badly treated, and it is not how they like to do business.  To save money they had not replaced the complainant’s role and they are a third party and to be cost effective they deal with a third party.  There was no other suitable alternative employment and there are no plans to recruit in Ireland and they have sought other efficiencies such as outsourcing, and the trucks were ordered prior to covid and at the time they needed to do that.  Two years on they have a dynamic business, and the third-party costs are less, and ancillary costs are less such as telephone and rental and travel and they stopped engaging HR consultancy and sold vehicles.  The trucks purchased were paid off this year and the reason for redundancy was cost efficiencies, streamlining, costs involved with Ireland and that nobody in UK was made redundancy.  She did not believe that the complainant should have seen the business plan and financial data as it was sensitive information

The complainant submitted that he was required to work more than the maximum number of hours in excess of that under the Act and the respondent disputes same.

Weekly working hours.

15.—(1) An employer shall not permit an employee to work, in each period of 7 days, more than an average of 48 hours, that is to say an average of 48 hours calculated over a period (hereafter in this section referred to as a “reference period ”) that does not exceed—

(a) 4 months, or

(b) 6 months—

(i) in the case of an employee employed in an activity referred to in paragraph 2, point 2.1. of Article 17 of the Council Directive, or

(ii) where due to any matter referred to in section 5, it would not be practicable (if a reference period not exceeding 4 months were to apply in relation to the employee) for the employer to comply with this subsection,

or

(c) such length of time as, in the case of an employee employed in an activity mentioned in subsection (5), is specified in a collective agreement referred to in that subsection.

The complainant struggled to articulate specifics around the hours outside of that specified in the Act and I find that the complainant is not well founded and dismiss the complaint.

The complainant withdrew this complaint.

The complainant withdrew this complaint.

The complainant submits that he was not notified in writing of a change to his terms of employment when his position was changed by the respondent. 

The complainant submitted that he commenced employment on 19/10/2021 and his employment ended on 18/06/2023 and his salary was €42,000 and was informed that his position was made redundant and did not receive redundancy payment owing to his length of service.

It was submitted that the complainant was not given compensation for working on a Sunday and that the hours on his contract were 45 hours week and there was no compensation for outside those hours and he worked Sundays that he was not given a premium for working Sunday when he drove for the company and stayed in the truck. 

The complainant submitted that he had enjoyed his employment and that he was unfairly dismissed in an unfair process and that the respondent brought his personal life into question using it as a reason for redundancy and was not offered roles before he was terminated.  He was told by the respondent that because he was living in the UK his role was gone as it was not compliant with his Irish licence requirements and this was untrue.  On 03/05/2023 he was advised his position was at risk of redundancy and 11/05/2023 there was a first consultation regarding redundancy and 19/05/2023 there was another consultation meeting and he was on garden leave until 18/06/2023.  He had submitted a grievance and during his appeal it was brought to his attention that employees had joined the company and he was not informed of these roles and was told it was for him to apply for any roles that he was interested in.  As the complainant was on garden leave he had to return all company property including his work laptop and work phone, and therefore did not realise it was expected of him, to still use the app to enquire about jobs.  He was not offered suitable alternative employment and he had told the respondent that he would take on a driving role but no further conversations happened.  The complainant had previously advised Mr X and a colleague Mr Y that he would take on driving work to support shortage of drivers and was assigned a vehicle and then without notice the job was no longer available .  The complainant had been told on 11/05/2023 that the respondent did want to lose him and although a step down in the direction he wanted he did agree in principle with Mr Y to take on a driving role but the respondent did not make this happen.

He became aware of a driver position very late in process and was told he would be subject to the performance requirements of a driver.  On 16/05/2023 the complainant was asked to take on a driving role to London and the complainant asked to be in back in the yard that night, as he did not have gear to sleep out.   The complainant phoned in sick for the first time in his career on 17/05/2023 with work-related stress due to the treatment and the complainant was advised that the new driving role was given to another "new" employee. This has resulted in a large financial loss to the complainant  due to the potential earnings that he could have earned as a driver. During week commencing 15/05/2023 there was a series of emails leading the complainant to believe that the outcome was already made. And then in an email of 18/05/2023

"As you have correctly stated you are the only person based in that location, which is possibly due to be closed, hence the reason your role is at risk of redundancy",

which he submitted was a complete and false reason, as the company would not be able to operate from lreland unless  the complainant completed the role in a part-time capacity or outsourced the role voiding the "risk of redundancy" reasoning.  At no point, up until the day prior to potential termination date, was there mention of the Limerick site potentially closing.  lt may have been mentioned that the company was cutting costs, but at no point did the complainant know the lrish site was at risk, because all the time there, the reason for employment was to set up an EU base and become an EU hub and with over 50% of the work in mainland Europe based, it was a necessity for the lrish site to remain open. The complainant submitted that following the February meeting he cut costs.  On 16/05/2023 he received an invite to a meeting of 19/05/2023  whereby the outcome of the consultation period would be confirmed and he was confused as to whether the meeting of 19/05/2023 was still part of the consultation process. The complainant put forward more than 8 points for discussion, and prior to an adjournment at 16:12pm,  the meeting was then recommenced at 16:27pm, meaning his submissions were not taken into consideration.  The complainant submitted there was a prejudged outcome prior to attending that meeting on 19th May 2023.  He submitted that the consultation process should have been two weeks from the first initial meeting on 11/05/2023 meaning consultation period would have ended on 25/05/2023 and throughout the appeal hearing chaired by Natalie Calladine (Head of Finance) none of his points were addressed.

On 02/04/2023 he travelled from UK to lreland via boat and when he got to the boat his boat ticket order had been cancelled and he called Mr X regarding the cancellations, who brought the complainant’s personal life was brought into the conversation, and Mr X said it is noted that you have been ‘shacked up with some bird up the road’ and that the use of a company vehicle was an unfair use of company property and that the complainant should have replaced diesel.  On 02/05/2023 the complainant had annual leave day booked off and was issued a letter on the Wednesday by Mr X and Ms Z, informing him his role was at risk of redundancy and the first paragraph of the letter stated

"We recently became aware that you have moved house and are now living in the UK and as such risks our compliance with O license requirements in lreland".

No one had a conversation with him prior to this about his living arrangements and the complainant’s contract stated he was required to be 2 out of every 4 weeks in the UK, and at meetings the complainant was open and honest and stated that he was still a resident in lreland and enjoyed spending some free time in the UK. His personal life should not have been brought into the meetings and it is irrelevant as the complainant lives in Ireland, pays into an Irish bank account in Irish currency and pays taxes in Ireland and was a resident in Ireland.  The complainant submitted that the respondent changed their storyline stating it was irrelevant where he lived.   The respondent used the redundancy process to scapegoat him and he was extremely upset that all the hard work was all for nothing and he had to suffer the embarrassment comments and rumours "been fired" or "getting the sack" He was not offered roles before he was terminated. 

The complainant’s evidence was that during the cognisable period of 15/03/2023 – 14/09/2023 the complainant worked 2 Sundays namely, 23/04/2023 and 30/04/2023 and did not receive the Sunday premium that he had an entitlement to and that his contract refers to 45 hours per week and that he would work Monday till Friday.

The complainant said during the cognisable period he had to hire a car to undertake work duties and that there were delays in returning the car and there was agreement about hiring it for 3 days but it was 6 days that it was hired for.  He was unable to get in contact with his line manager who was on annual leave and had to make a decision.  He confirmed that he has emailed confirming the deductions.

His evidence was that he worked hard and was trained as a transport manager and had a passion for the industry with opportunity to grow.  Up to his dismissal trained many employees, working many hours.  A new manager joined the company and was complimentary of the complainant but in 2023 Mr X arrived and everything seemed to go downhill with his arrival and Mr X is no longer an employee as he was let go.  The complainant’s role was 2 weeks in Ireland 2 weeks in the UK and at times was required to drive trucks.  The complainant never knew that Mr X was going to be his manager until he saw an internal email.  The complainant would normally have his expenses approved but the complainant was willing to work with Mr X who A criticised his expenses around February 2023 and there were emails about the complainant’s expenses.  Some senior managers left because of Mr X.  His dismissal was owing to the behaviour of Mr X who seemed to call the shots at the time until his employment was ended by the respondent.  On an occasion when they were out for dinner Mr X would not pay for the meal and M X was terminated by the respondent in March 2024 as a result of the way he dealt with matters.  His evidence was that the respondent had him on call 24/7 despite his contract stating Monday till Friday and he had to take phone calls regularly and did not get extra compensation.

The complainant said his employment ended on 18/06/2023 and he secured employment on 03/09/2023 on a salary of 31,200 which increased on 01/03/2024 to 35,000 and that he has applied for jobs in the UK but not outside of transport and did not forward details of the jobs that he had applied for.  During the cognisable period he had to hire a car to undertake work duties and that there were delays in returning the car and there was agreement about hiring it for 3 days but it was 6 days that it was hired for.  He was unable to get in contact with his line manager who was on annual leave and had to make a decision.  He was told there was an investigation into the matter of the hire car and damages to the car hire.  The complainant agreed deductions on 29/03/2023 and that the car hire was from 04/01/2023 until 16/01/2023.  The respondent had told him there would be an investigation into him hiring the vehicle and that the vehicle had been damaged.  It was his belief that the expenses should not have been deducted as he would not have been able to do the work without the car hire.  It was possibly his fault not to return it on time and he advised the respondent he would allow the deductions from his pay but raised it as a grievance as he felt that he had needed the car for work and that it was the respondent’s responsibility to provide it.  It was not fair that the expenses were scrutinised in the manner in which they had been scrutinized.

Under cross examination the complainant said he could not afford to live in Ireland and he has not been looking at jobs in Ireland as that he personal matters to deal with regarding his marriage.  He was aware that there were changes going on in the respondent’s organisation from about 22/08/2022.  He was awaiting on Mr X to provide him with details of travel to return home when he was put on garden leave.  He had been told his expenses would be covered which was a verbal agreement and had been told he could have a credit card by a manager and that another employee was promoted two days before the complainant’s employment ended.  He did not know Mr X was his boss or that he was a level above him as he was not told and that when Mr X started then the complainant’s career ended and went downhill from there.  Discussions about a job driving were not sufficient and that the complainant thought he was going to be getting the lead role of driver but did not as it was given to someone else and the complainant had been offered a job that then disappeared.  The complainant did not chase up the driver’s role as he was dealing with a grievance and an appeal and was on garden leave.  Mr X used things against the complainant as ammunition.

The respondent submitted that on 24/08/2022 the complainant was advised about structure change and it references Transport Manager and also references that his roles will change to that of Front-Line Manager.

The contractual hours were Monday to Friday 9am till 6pm and there were obligations in his contract to work within the act.  There is nothing that provides for him working on a Sunday and they accept that on occasion he may have worked on Sunday and that he could have worked within the terms of his contract.  It was submitted that his expenses had been raised with and dealt with and the complainant agreed to deductions as within his contract and the company policy and procedure.  All expenses had been reviewed and there was a cost saving drive across the company which the complainant knew about, and the complainant knew that expenses needed to be approved in advance and he did not get the approval and he was not under duress at the time and was advised of the deductions and agreed to them and specific details of each line of the expenses were explained and this was not part of his grievance.  There had been nothing submitted regarding working excess hours, and it was submitted that the complainant did not work excess hours.  The respondent did not know of any changes to the complainant’s terms and conditions of employment. The respondent submitted that on 24/08/2022 the complainant was advised about structure change and it references Transport Manager and also references that his roles will change to that of Front-Line Manager.

The respondent rejects that the complainant did not know what the purpose of a consultation meeting was for as it was explained to him in the emails. The role of driver was discussed with him, but he did not avail of his role and the complainant would not have been able to select a truck of choice.  The complainant was not offered the role of HR officer as he was not suitably qualified and he had access to the respondent’s system where jobs are available, and he did not apply for any.  An admin role was available but not offered as it was not a suitable alternative. The shogun is a pool vehicle and not a vehicle just for the complainant and other employees were using it.  The complainant’s role was not outsourced to another person, other people took on some of his tasks and other activities were outsourced.  It was clear what the purpose of the meeting of 19/05/2023 was for which included discussion of annual leave and points raised during consultation meeting.

The respondent submitted that the complainant’s role was no longer available owing to a genuine redundancy and all statutory obligations have been met including appeal, right to be accompanied, details in writing.  All deductions made were with consent and the deduction was for something that was not legitimate business purchase or authorised and the complainant was supported during the process and was not bullied.

He was told there was an investigation into the matter of the hire car and damages to the car hire and of a requirement to engage with Mr X directly regarding an invoice on 03/02/2023.  There had also been an allegation raised against the complainant on 06/02/2023 regarding his behaviour against an employee that was partially upheld.  The complainant was also communicated to regarding his behaviour on 09/03/2023 where he was advised “this isn’t the first time that there have been issues with your communication style”. The complainant was on notice that the respondent was engaged in cost cutting following the email of 17/02/2023 which outlined “please help us manage costs effectively” . 

The evidence of Ms Calladine was that there was no evidence from the tachograph of Sunday working albeit records showed some Sundays worked and that if the complainant had worked Sunday’s appropriate rest had been given.  The complainant’s contract refers to no additional remuneration for additional hours worked.  The complainant has this clause of reasonable amount of overtime for hours worked and there was nothing that suggests that overtime was worked.  She had been with the company since March 2016 and had worked in finance and worked her way up to head of finance and there was a European based started in Ireland and Mr Whelan came on board.  Many competitors also set up an Irish base and after Covid business was very good but then business dropped off and the company started to see some financial difficulties and with many costs they needed to do things more efficiently.  The company did not need an employee in Ireland and could have nominated a person so to make business streamline they found many ways to cut costs.  The MD sat down in February and told the wider team of the need to cut costs and Mr Whelan was told on 03/05/2023 about the risk of redundancy.  This was an informed decision and there was consultation, and it was not possible to provide an alternative role.  On 19/05/2023 the complainant was informed of redundancy and the witness was not directly involved and heard the appeal and his appeal was made up of four main points.  The complainant had claimed unfair failure to have meaningful consultation, and he was given multiple meetings and there was nothing to point to the bias that the complainant had suggested.  The complainant had said there were unclear reasons for redundancy and while it was acknowledged his personal address had been noted this was not a consideration in the decision.  The respondent could not afford inefficiencies and concluded that he was knew he was an expense.  the third point raised was that the complainant felt it was prejudiced but there was no bias and roles had been explored and there was a need for someone in HR who was qualified, and the complainant would not have been qualified for this and another role was not deemed suitable in customer care salary was less, and the complainant was not qualified for the role of project manager.  The complainant said that they could have maintained the Irish operation, but they did not employ anyone for that role and there was no part-time role, and no solution was offered by the complainant.  The witness was informed on 19/05/2023 of the complainant’s redundancy and as part of the appeal the witness reviewed emails.

Under cross examination she said that reference to the complainant’s address was a mistake and she had looked at the minutes and it had been addressed and this should not have been said to the complainant.  She did not interview Mr X as part of the appeal and did not feel the need to interview anyone.  She did know there was a consultation process going on prior to 19/05/2023.  The trusts are not rented vehicles as they are higher purchase vehicles and they respondent needed to maintain them as they are not easy to replace, and this is how business do this.  The complainant had said that he would respond with suggestions, and he did not respond, and the only role offered was a driver.  She understood that the process was difficult for the complainant, and she was sorry that he felt that he was badly treated, and it is not how they like to do business.  To save money they had not replaced the complainant’s role and they are a third party and to be cost effective they deal with a third party.  There was no other suitable alternative employment and there are no plans to recruit in Ireland and they have sought other efficiencies such as outsourcing, and the trucks were ordered prior to covid and at the time they needed to do that.  Two years on they have a dynamic business, and the third-party costs are less, and ancillary costs are less such as telephone and rental and travel and they stopped engaging HR consultancy and sold vehicles.  The trucks purchased were paid off this year and the reason for redundancy was cost efficiencies, streamlining, costs involved with Ireland and that nobody in UK was made redundancy.  She did not believe that the complainant should have seen the business plan and financial data as it was sensitive information

The complainant submits that there was a change in his terms of employment as he was advised he was Transport Manager and this was later detailed as Front-Line Transport Manager and the respondent submits that this was communicated to the complainant on 24/08/2022.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 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—

 (a) the day on which the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee’s departure.

(2) Subsection (1) does not apply in relation to a change occurring in provisions of statutes or instruments made under statute F23[, other than a registered employment agreement or employment regulation order,] or of any other laws or of any administrative provisions or collective agreements referred to in the statement given under section 3 or 4.

I note that the complainant was advised of changes on 24/08/2022 and did not dispute this at the time.  In all the circumstances I find that the complaint is not well founded and dismiss the complaint.

The complainant submits that he was unfairly dismissed.

The complainant submits that he was not notified in writing of a change to his terms of employment when his position was changed by the respondent. 

The complainant submitted that he commenced employment on 19/10/2021 and his employment ended on 18/06/2023 and his salary was €42,000 and was informed that his position was made redundant and did not receive redundancy payment owing to his length of service.

It was submitted that the complainant was not given compensation for working on a Sunday and that the hours on his contract were 45 hours week and there was no compensation for outside those hours and he worked Sundays that he was not given a premium for working Sunday when he drove for the company and stayed in the truck. 

The complainant submitted that he had enjoyed his employment and that he was unfairly dismissed in an unfair process and that the respondent brought his personal life into question using it as a reason for redundancy and was not offered roles before he was terminated.  He was told by the respondent that because he was living in the UK his role was gone as it was not compliant with his Irish licence requirements and this was untrue.  On 03/05/2023 he was advised his position was at risk of redundancy and 11/05/2023 there was a first consultation regarding redundancy and 19/05/2023 there was another consultation meeting and he was on garden leave until 18/06/2023.  He had submitted a grievance and during his appeal it was brought to his attention that employees had joined the company and he was not informed of these roles and was told it was for him to apply for any roles that he was interested in.  As the complainant was on garden leave he had to return all company property including his work laptop and work phone, and therefore did not realise it was expected of him, to still use the app to enquire about jobs.  He was not offered suitable alternative employment and he had told the respondent that he would take on a driving role but no further conversations happened.  The complainant had previously advised Mr X and a colleague Mr Y that he would take on driving work to support shortage of drivers and was assigned a vehicle and then without notice the job was no longer available .  The complainant had been told on 11/05/2023 that the respondent did want to lose him and although a step down in the direction he wanted he did agree in principle with Mr Y to take on a driving role but the respondent did not make this happen.

He became aware of a driver position very late in process and was told he would be subject to the performance requirements of a driver.  On 16/05/2023 the complainant was asked to take on a driving role to London and the complainant asked to be in back in the yard that night, as he did not have gear to sleep out.   The complainant phoned in sick for the first time in his career on 17/05/2023 with work-related stress due to the treatment and the complainant was advised that the new driving role was given to another "new" employee. This has resulted in a large financial loss to the complainant  due to the potential earnings that he could have earned as a driver. During week commencing 15/05/2023 there was a series of emails leading the complainant to believe that the outcome was already made. And then in an email of 18/05/2023

"As you have correctly stated you are the only person based in that location, which is possibly due to be closed, hence the reason your role is at risk of redundancy",

which he submitted was a complete and false reason, as the company would not be able to operate from lreland unless  the complainant completed the role in a part-time capacity or outsourced the role voiding the "risk of redundancy" reasoning.  At no point, up until the day prior to potential termination date, was there mention of the Limerick site potentially closing.  lt may have been mentioned that the company was cutting costs, but at no point did the complainant know the lrish site was at risk, because all the time there, the reason for employment was to set up an EU base and become an EU hub and with over 50% of the work in mainland Europe based, it was a necessity for the lrish site to remain open. The complainant submitted that following the February meeting he cut costs.  On 16/05/2023 he received an invite to a meeting of 19/05/2023  whereby the outcome of the consultation period would be confirmed and he was confused as to whether the meeting of 19/05/2023 was still part of the consultation process. The complainant put forward more than 8 points for discussion, and prior to an adjournment at 16:12pm,  the meeting was then recommenced at 16:27pm, meaning his submissions were not taken into consideration.  The complainant submitted there was a prejudged outcome prior to attending that meeting on 19th May 2023.  He submitted that the consultation process should have been two weeks from the first initial meeting on 11/05/2023 meaning consultation period would have ended on 25/05/2023 and throughout the appeal hearing chaired by Natalie Calladine (Head of Finance) none of his points were addressed.

On 02/04/2023 he travelled from UK to lreland via boat and when he got to the boat his boat ticket order had been cancelled and he called Mr X regarding the cancellations, who brought the complainant’s personal life was brought into the conversation, and Mr X said it is noted that you have been ‘shacked up with some bird up the road’ and that the use of a company vehicle was an unfair use of company property and that the complainant should have replaced diesel.  On 02/05/2023 the complainant had annual leave day booked off and was issued a letter on the Wednesday by Mr X and Ms Z, informing him his role was at risk of redundancy and the first paragraph of the letter stated

"We recently became aware that you have moved house and are now living in the UK and as such risks our compliance with O license requirements in lreland".

No one had a conversation with him prior to this about his living arrangements and the complainant’s contract stated he was required to be 2 out of every 4 weeks in the UK, and at meetings the complainant was open and honest and stated that he was still a resident in lreland and enjoyed spending some free time in the UK. His personal life should not have been brought into the meetings and it is irrelevant as the complainant lives in Ireland, pays into an Irish bank account in Irish currency and pays taxes in Ireland and was a resident in Ireland.  The complainant submitted that the respondent changed their storyline stating it was irrelevant where he lived.   The respondent used the redundancy process to scapegoat him and he was extremely upset that all the hard work was all for nothing and he had to suffer the embarrassment comments and rumours "been fired" or "getting the sack" He was not offered roles before he was terminated. 

The complainant’s evidence was that during the cognisable period of 15/03/2023 – 14/09/2023 the complainant worked 2 Sundays namely, 23/04/2023 and 30/04/2023 and did not receive the Sunday premium that he had an entitlement to and that his contract refers to 45 hours per week and that he would work Monday till Friday.

The complainant said during the cognisable period he had to hire a car to undertake work duties and that there were delays in returning the car and there was agreement about hiring it for 3 days but it was 6 days that it was hired for.  He was unable to get in contact with his line manager who was on annual leave and had to make a decision.  He confirmed that he has emailed confirming the deductions.

His evidence was that he worked hard and was trained as a transport manager and had a passion for the industry with opportunity to grow.  Up to his dismissal trained many employees, working many hours.  A new manager joined the company and was complimentary of the complainant but in 2023 Mr X arrived and everything seemed to go downhill with his arrival and Mr X is no longer an employee as he was let go.  The complainant’s role was 2 weeks in Ireland 2 weeks in the UK and at times was required to drive trucks.  The complainant never knew that Mr X was going to be his manager until he saw an internal email.  The complainant would normally have his expenses approved but the complainant was willing to work with Mr X who A criticised his expenses around February 2023 and there were emails about the complainant’s expenses.  Some senior managers left because of Mr X.  His dismissal was owing to the behaviour of Mr X who seemed to call the shots at the time until his employment was ended by the respondent.  On an occasion when they were out for dinner Mr X would not pay for the meal and M X was terminated by the respondent in March 2024 as a result of the way he dealt with matters.  His evidence was that the respondent had him on call 24/7 despite his contract stating Monday till Friday and he had to take phone calls regularly and did not get extra compensation.

The complainant said his employment ended on 18/06/2023 and he secured employment on 03/09/2023 on a salary of 31,200 which increased on 01/03/2024 to 35,000 and that he has applied for jobs in the UK but not outside of transport and did not forward details of the jobs that he had applied for.  During the cognisable period he had to hire a car to undertake work duties and that there were delays in returning the car and there was agreement about hiring it for 3 days but it was 6 days that it was hired for.  He was unable to get in contact with his line manager who was on annual leave and had to make a decision.  He was told there was an investigation into the matter of the hire car and damages to the car hire.  The complainant agreed deductions on 29/03/2023 and that the car hire was from 04/01/2023 until 16/01/2023.  The respondent had told him there would be an investigation into him hiring the vehicle and that the vehicle had been damaged.  It was his belief that the expenses should not have been deducted as he would not have been able to do the work without the car hire.  It was possibly his fault not to return it on time and he advised the respondent he would allow the deductions from his pay but raised it as a grievance as he felt that he had needed the car for work and that it was the respondent’s responsibility to provide it.  It was not fair that the expenses were scrutinised in the manner in which they had been scrutinized.

Under cross examination the complainant said he could not afford to live in Ireland and he has not been looking at jobs in Ireland as that he personal matters to deal with regarding his marriage.  He was aware that there were changes going on in the respondent’s organisation from about 22/08/2022.  He was awaiting on Mr X to provide him with details of travel to return home when he was put on garden leave.  He had been told his expenses would be covered which was a verbal agreement and had been told he could have a credit card by a manager and that another employee was promoted two days before the complainant’s employment ended.  He did not know Mr X was his boss or that he was a level above him as he was not told and that when Mr X started then the complainant’s career ended and went downhill from there.  Discussions about a job driving were not sufficient and that the complainant thought he was going to be getting the lead role of driver but did not as it was given to someone else and the complainant had been offered a job that then disappeared.  The complainant did not chase up the driver’s role as he was dealing with a grievance and an appeal and was on garden leave.  Mr X used things against the complainant as ammunition.

The respondent submits that the position that the complainant held was made redundant and that the dismissal was not therefore unfair.

The contractual hours were Monday to Friday 9am till 6pm and there were obligations in his contract to work within the act.  There is nothing that provides for him working on a Sunday and they accept that on occasion he may have worked on Sunday and that he could have worked within the terms of his contract.  It was submitted that his expenses had been raised with and dealt with and the complainant agreed to deductions as within his contract and the company policy and procedure.  All expenses had been reviewed and there was a cost saving drive across the company which the complainant knew about, and the complainant knew that expenses needed to be approved in advance and he did not get the approval and he was not under duress at the time and was advised of the deductions and agreed to them and specific details of each line of the expenses were explained and this was not part of his grievance.  There had been nothing submitted regarding working excess hours, and it was submitted that the complainant did not work excess hours.  The respondent did not know of any changes to the complainant’s terms and conditions of employment. The respondent submitted that on 24/08/2022 the complainant was advised about structure change and it references Transport Manager and also references that his roles will change to that of Front-Line Manager.

The respondent rejects that the complainant did not know what the purpose of a consultation meeting was for as it was explained to him in the emails. The role of driver was discussed with him, but he did not avail of his role and the complainant would not have been able to select a truck of choice.  The complainant was not offered the role of HR officer as he was not suitably qualified and he had access to the respondent’s system where jobs are available, and he did not apply for any.  An admin role was available but not offered as it was not a suitable alternative. The shogun is a pool vehicle and not a vehicle just for the complainant and other employees were using it.  The complainant’s role was not outsourced to another person, other people took on some of his tasks and other activities were outsourced.  It was clear what the purpose of the meeting of 19/05/2023 was for which included discussion of annual leave and points raised during consultation meeting.

The respondent submitted that the complainant’s role was no longer available owing to a genuine redundancy and all statutory obligations have been met including appeal, right to be accompanied, details in writing.  All deductions made were with consent and the deduction was for something that was not legitimate business purchase or authorised and the complainant was supported during the process and was not bullied.

He was told there was an investigation into the matter of the hire car and damages to the car hire and of a requirement to engage with Mr X directly regarding an invoice on 03/02/2023.  There had also been an allegation raised against the complainant on 06/02/2023 regarding his behaviour against an employee that was partially upheld.  The complainant was also communicated to regarding his behaviour on 09/03/2023 where he was advised “this isn’t the first time that there have been issues with your communication style”. The complainant was on notice that the respondent was engaged in cost cutting following the email of 17/02/2023 which outlined “please help us manage costs effectively” . 

The evidence of Ms Calladine was that there was no evidence from the tachograph of Sunday working albeit records showed some Sundays worked and that if the complainant had worked Sunday’s appropriate rest had been given.  The complainant’s contract refers to no additional remuneration for additional hours worked.  The complainant has this clause of reasonable amount of overtime for hours worked and there was nothing that suggests that overtime was worked.  She had been with the company since March 2016 and had worked in finance and worked her way up to head of finance and there was a European based started in Ireland and Mr Whelan came on board.  Many competitors also set up an Irish base and after Covid business was very good but then business dropped off and the company started to see some financial difficulties and with many costs they needed to do things more efficiently.  The company did not need an employee in Ireland and could have nominated a person so to make business streamline they found many ways to cut costs.  The MD sat down in February and told the wider team of the need to cut costs and Mr Whelan was told on 03/05/2023 about the risk of redundancy.  This was an informed decision and there was consultation, and it was not possible to provide an alternative role.  On 19/05/2023 the complainant was informed of redundancy and the witness was not directly involved and heard the appeal and his appeal was made up of four main points.  The complainant had claimed unfair failure to have meaningful consultation, and he was given multiple meetings and there was nothing to point to the bias that the complainant had suggested.  The complainant had said there were unclear reasons for redundancy and while it was acknowledged his personal address had been noted this was not a consideration in the decision.  The respondent could not afford inefficiencies and concluded that he was knew he was an expense.  the third point raised was that the complainant felt it was prejudiced but there was no bias and roles had been explored and there was a need for someone in HR who was qualified, and the complainant would not have been qualified for this and another role was not deemed suitable in customer care salary was less, and the complainant was not qualified for the role of project manager.  The complainant said that they could have maintained the Irish operation, but they did not employ anyone for that role and there was no part-time role, and no solution was offered by the complainant.  The witness was informed on 19/05/2023 of the complainant’s redundancy and as part of the appeal the witness reviewed emails.

Under cross examination she said that reference to the complainant’s address was a mistake and she had looked at the minutes and it had been addressed and this should not have been said to the complainant.  She did not interview Mr X as part of the appeal and did not feel the need to interview anyone.  She did know there was a consultation process going on prior to 19/05/2023.  The trusts are not rented vehicles as they are higher purchase vehicles and they respondent needed to maintain them as they are not easy to replace, and this is how business do this.  The complainant had said that he would respond with suggestions, and he did not respond, and the only role offered was a driver.  She understood that the process was difficult for the complainant, and she was sorry that he felt that he was badly treated, and it is not how they like to do business.  To save money they had not replaced the complainant’s role and they are a third party and to be cost effective they deal with a third party.  There was no other suitable alternative employment and there are no plans to recruit in Ireland and they have sought other efficiencies such as outsourcing, and the trucks were ordered prior to covid and at the time they needed to do that.  Two years on they have a dynamic business, and the third-party costs are less, and ancillary costs are less such as telephone and rental and travel and they stopped engaging HR consultancy and sold vehicles.  The trucks purchased were paid off this year and the reason for redundancy was cost efficiencies, streamlining, costs involved with Ireland and that nobody in UK was made redundancy.  She did not believe that the complainant should have seen the business plan and financial data as it was sensitive information.

The complainant submits that he was unfairly dismissed and that the respondent did not offer him suitable alternative employment.  The respondent submits that the employment ended as the position was made redundant and that the position was the only position in Ireland and that nobody has filled that position and appropriate procedure and consultation was engaged in.

Section 6 of the Unfair Dismissals Act, 1977 sets out that :

“—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”

Section 4 of the Act provides that

“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 one or more of the following:

(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. “

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(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 referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

It was not disputed that the complainant was advised that his position was at risk of redundancy with follow up consultation meetings and the complainant had the opportunity to appeal the decision and was not successful at appeal.  It was also not in dispute that Ms Calladine while not specifically involved in the ‘at risk of redundancy’ meetings, did provide financial information for those and also heard the complainant’s appeal.  It was also not in dispute that there had been a number of incidents that arose between the respondent mostly often with Mr X and the complainant with regards to expenses and it would appear that the relationship between Mr X and the complainant had deteriorated.  It would also appear that the complainant at times did not help matters by his behaviour, including how he engaged with the respondent around the car hire and damage to the car.  However, the respondent submits that the complainant’s employment did not end because of performance but because the respondent advised him that the position in Ireland was no longer required and therefore redundant.  I note that there was much dispute around whether the complainant was offered a position as a driver and based on all the evidence it would appear that the complainant was willing to take on the position of a driver but Mr X did not follow up on this sufficiently nor did Ms Calladine and there was insufficient efforts made to ensure that the complainant had accessibility to suitable alternative positions available.

The EAT emphasised in Sheehan and O’ Brien v. Vintners Federation of Ireland Ltd., (2009) 20 ELR155,the importance of engaging with employees in a reasonable manner and, “…as part of this process, of consideration of alternatives to dismissal” (set out in UD/20/88Tanneron Ltd v Gerard Conlon) . It is also noteworthy that the complainant’s position was the only position that was made redundant and nothing provided at the hearing outlined what were the significant cost savings this gave to the respondent which might affirm that the “redundancy was impersonal” (UD/20/88Tanneron Ltd v Gerard Conlon). 

The significant exchange of emails between management of the respondent clearly sets out that the respondent was not happy with the behaviours of the complainant’ whereby they had to engage with him on more than one occasion about his “communication style” and it would appear in all the circumstances that this influenced their decision to terminate his employment and the email of 17/02/2023 setting out about managing “costs effectively” did not in any way suggest that jobs were at risk.  It was also of significance that the respondent advised of their belief that the complainant was living in the UK and not Ireland, as a reason for the redundancy but they appeared to later backtrack from that.  In all the circumstances I find that the respondent failed to act reasonable in their conduct and that the dismissal is unfair.  I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress.

The complainant has incurred losses as a result of this unfair dismissal and the complainant has not met the requirements of Sheehan v Continental Administration Co Ltd. 858/1999 where the tribunal held that:

“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work”

The complainant was not as forthcoming as one might expect as to the specific efforts he had made to mitigate his loss.  Taking all the circumstances into consideration, and also the complainant’s failures to engage more to secure a driver role I find that the dismissal was unfair and I award the complainant €5,000 amounting to just over 6 weeks pay which I find fair and reasonable in all the circumstances, including the limited efforts made by the complainant to mitigate his loss.

This complaint was withdrawn.

This complaint was withdrawn

CA-00058826-001

I find that the complainant is well founded and award €107.69 for the economic loss and compensation of €300 for the breach and therefore the total amount owing to the complainant is €407.69.

CA-00058826-002

I find that the complaint is not well founded and dismiss the complaint.

CA-00058826-003

I find that the complainant is not well founded and dismiss the complaint.

CA-00058826-006

I find that the complaint is not well founded and dismiss the complaint.

CA-00058826-007

I find that the dismissal was unfair and I award the complainant €5,000 amounting to just over 6 weeks’ pay which I find fair and reasonable in all the circumstances, including the limited  efforts made by the complainant to mitigate his loss.

Redundancy, unfair dismissal, terms of employment, changes, Sunday premium, 48 hour working, expenses, car hire