ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00050917

Parties:

	Complainant	Respondent
Parties	Robert Kilmartin	LB Gremo Limited

Representatives

Self-Represented

Complaints:

Act	Complaint Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00062342-001	14/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00062342-002	14/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00062342-003	14/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00062342-004	14/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00062342-005	14/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00062342-006	14/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00062342-007	14/03/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00062342-008	14/03/2024

Date of Adjudication Hearing: 19/11/2024

Workplace Relations Commission Adjudication Officer: Brian Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant commenced employment with the Respondent on 22nd August 2022. The Complainant was a permanent, full-time employee, in receipt of an average weekly wage of €620.27. The Complainant’s employment was terminated by the Respondent on 23rd February 2024.

On 14th March 2024, the Complainant referred the present set of complaints to the Commission. Herein, the Complainant raised numerous allegations against the Respondent, primarily that he had been dismissed without recourse to a proper internal procedure, that he did not receive his full annual leave entitlement on dismissal and that the Respondent made an illegal deduction from his wages. By response, the Respondent denied each of these complaints, stating that the Complainant was dismissed following a series of warnings and that he received all wages due to him in the course of his employment.

A hearing in relation to these complaints was convened for, and finalised on, 19th November 2024. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced during the hearing.

Both parties issued extensive submissions in advance of the hearing. Said submissions were expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of his complaint, while a Managing Director of the Respondent gave evidence in defence.

Summary of Complainant’s Case:

The Complainant commenced employment with the Respondent on 22nd August 2022. At all relevant times that Complainant was engaged a “vehicle mechanic”.

In or around November 2023, the Complainant informed the Respondent that his wife was pregnant and that he wished to take some time off work following the birth of his child. By response, the Managing Director of the Respondent stated that the Complainant should take annual leave during this period so as to receive his full income. The Complainant duly commenced annual leave on this basis on 15th February 2024. Towards the end of that week, the Complainant noticed that he had not been paid. When the Complainant spoke to the Respondent in relation to these matters, he was informed that “it (the employment) is not working out and I (the Respondent) am letting you go.”

By correspondence issued post termination, the Respondent submitted that the Complainant had been dismissed following the receipt of two prior warnings, dated 26th January and 14th August 2023, and a final warning issued on 19th February 2024. Regarding the first two warnings, the Complainant noted that no formal investigation was conducted in respect of the same, that no formal meetings of any description were held, that no right of appeal was offered, and they did not state the duration for which they would remain on the Complainant’s file. Regarding the final warning, the Complainant noted that, in addition to the procedural failure outlined in respect to the previous warnings, this was apparently issued while the Complainant was on annual leave. It also referred to an incident that occurred sometime previous, on a date on which the Complainant was not in work.

Having regard to the foregoing, the Complainant submitted that his dismissal was procedurally and substantively unfair. In addition to the foregoing, the Complainant submitted that he was routinely underpaid throughout his employment, that he did not receive his final week’s wages and that he did not receive his full annual leave entitlement on the termination of his employment.

Summary of Respondent’s Case:

In evidence, the Managing Director of the Respondent stated that the Complainant commenced employment in August 2022. At or near the commencement of his employment, the Complainant was provided with a contract of employment and a comprehensive employee handbook. The Complainant was also provided with induction training, to include safety training.

In evidence, the Managing Director of the Respondent outlined numerous issues that arose in the course of the Complainant’s employment. In this regard, the Respondent stated that in January 2023, the Complainant was issued with a written warning regarding his timekeeping. Thereafter, on 14th August 2023, the Complainant received a further written warning in relation to the standard of his workmanship. Regarding this issue, the Managing Director of the Respondent stated that the Complainant allowed a vehicle to leave the premises in an unsafe condition. Aside from the clear issues of health and safety this raised, the Respondent was at a reputational and financial loss in having to correct the mistake of the Complainant. Finally, in August of 2023, the Respondent was put on notice of further defects in the standard of the Complainant’s work. In particular, the Respondent was informed that the Complainant failed to complete a routine safety procedure, resulting in extensive damage to a customer vehicle. Again, the Respondent was at a significant reputational and financial loss in having to rectify the mistake of the Complainant.

In evidence, the Managing Director of the Respondent stated that as vehicle mechanics, they have a significant duty of care to the persons that entrust them with the maintenance and repair of their vehicles. On two separate occasions, the Complainant made mistakes that resulted in the safety of their customers being endangered. On the first such occasion the Complainant was expressly warned, both verbally and in writing, that this standard of work was not acceptable to the Respondent. When a second such incident occurred, the Respondent dismissed the Complainant in accordance with their own internal policies. In such circumstances, the Respondent submitted that the dismissal of the Complainant was not unfair, and that his complaint should fail.

Regarding the other complaints issued by the Complainant, the Respondent submitted that the Complainant received all payments, including wages and annual leave entitlements due and owing to him. They further submitted that the Complainant received a comprehensive contract and handbook at or near the commencement of his employment.

Findings and Conclusions:

CA-00062342-006 – Complainant under the Unfair Dismissals Act

In the present case, the Respondent has submitted that the Complainant was fairly dismissed, within the meaning of Act, following a series of warnings for poor performance and conduct. By response, the Complainant submitted that his dismissal was both procedurally and substantively unfair. He submitted that the process adopted by the Respondent did not respect his natural or contractual rights. He further denied that the incidents in questions warranted the sanction of dismissal.

Section 6(1) of the Unfair Dismissals Acts provides that,

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

Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed….not to be an unfair dismissal” for the purposes of the Acts.

Section 6(6) of the Unfair Dismissals Act provides that,

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)”

Section 6(7) provides that in determining whether a dismissal is unfair, regard may be had:

a) “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

b) to the extent (if any) of the compliance or failure to comply…with the procedure…or with the provisions of any code of practice….”.

S.I. No. 146/2000, commonly referred to as the “Code of Practice on Grievance and Disciplinary Procedures”, sets out a basic procedure which a Respondent should follow prior to dismissing an employee. These include, putting the allegations to the Complainant in writing in advance of a hearing, allowing the Complainant the opportunity to properly defend himself at the hearing, permitting the appropriate right of representation and allowing an internal appeal of any determination.

An employee’s right to such procedures, amongst others, was recently confirmed by the Supreme Court in the matter of McKelvey v Iarnród Éireann / Irish Rail [2019] IESC 79.

In the present case, it is apparent that the disciplinary process adopted by the Respondent did not respect the Complaint’s right to fair procedures. Taking the submission of the Respondent at its height, it is apparent that the Complainant was presented with three separate documents purporting to act as warnings, each issued in response to some incident of alleged misconduct. Each of these warnings were presented without the Complainant having been invited to any form of formal investigation meeting to determine his position regarding the incidents in question or the wider surrounding circumstances. While the evidence of the witness for the Respondent was that the Complainant simply accepted the allegations on each occasion, the direct evidence of the Complainant at the hearing contradicted this position. It further noted that the warnings did not allow for any internal appeal and did not contain any expiration date.

Regarding the procedure effecting the dismissal itself, further procedural issues arise. Again, it is common case that no formal meeting of any description was arranged between the parties, with the Complainant being simply handed correspondence informing him of his dismissal. Such a process, insofar as the same can be called a process, was clearly conducted in contravention of the Complainant’s right to fair procedures and falls well short of discharging the burden of proof imposed on the Respondent by virtue of Section 6(6) of the Act.

Having regard to the accumulation of the foregoing points, I find that the dismissal of the Complainant was unfair for the purposes of the impleaded Act, and his complaint is duly deemed to be well-founded.

CA-00062342-001 – Complainant under the Payment of Wages Act

Regarding this complaint, the Complainant made two separate allegations of an illegal deduction from his wages. In relation to the first such complaint, he alleged that his contractual rate of pay was €506.46, and that he was actually paid the sum of €500, resulting in a recurring underpayment of €6.45 per week. The submission of the Complainant outlined that this illegal deduction had occurred by at least by the start of 2023.

In circumstances whereby the present complaint was referred on 14th March 2024, the Act creates a cognisable period of 14th September 2023 to the date of referral. In such circumstances it is apparent the much of the complaint referred by the Complainant is out of time, even with the application of an extension on the grounds of reasonable cause.

In this regard, Section 6(6) of the Workplace Relations Act 2015 provides that,

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

Thereafter, section 6(8) provides that,

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

In the matter of Health Service Executive -v- McDermott 2014 [IEHC} 331, Hogan J. stated that,

“…the words “contravention to which the complaint relates” which are critical. It may be accepted that every distinct and separate breach of the 1991 Act amounts to a “contravention” of that Act. If, for example, an employee is paid monthly and the employer makes unlawful deduction X in respect of salary for every month in a two year period it might be said in the abstract that there have been 24 separate “contraventions” of the 1991 Act during that period”

And,

“For the purposes of this limitation period, everything turns, accordingly, on the manner in which the complaint is framed by the employee. If, for example, the employer has been unlawfully making deductions for a three year period, then provided that the complaint which has been presented relates to a period of six months beginning “on the date of the contravention to which the complaint relates”, the complaint will nonetheless be in time.

It follows, therefore, that if an employer has been making deduction X from the monthly salary of the employee since January 2010, a complaint which relates to deductions made from January, 2014 onwards and which is presented to the Rights Commissioner in June, 2014 will still be in time for the purposes of s. 6(4). If, on the other hand, the complaint were to have been framed in a different manner, such that it related to the period from January, 2010 onwards, it would then have been out of time.”

In the matter of Elsatrans Limited -v- Joseph Tom Murray, PWD 1917, the Labour Court found that when part of a complaint in relation to the non-payment of wages is referred outside of the relevant time-limits, this serves to render the entirety of the complaint out of time.

Having regard to the instant case, it is apparent that the Complainant has framed the present complaint to run for a period of a number of months, if not longer, prior to the referral of the same. In this regard, the second scenario envisioned by Hogan J above is applicable and it is apparent that the complaint, as framed, is out of time for the purposes of the impleaded Act.

CA-00062342-002 – Complainant under the Payment of Wages Act

Regarding this particular complaint, the Complainant has alleged that the Respondent failed to discharge his final week of wages, referred to him as the “week in hand”. By response, the Respondent stated that the Complainant received all wages due and owing to him.

In support of their respective positions, both parties issued numerous payslips. In this regard, it is common case that the Complainant commenced employment 31st August 2022, with the same being terminated on 23rd February 2024. By submission, the Respondent opened bank accounts demonstrating payment of the Complainant’s weekly wages on 9th 16th and 23rd February 2024. In circumstances where no payslip was produced demonstrating that the Complainant was paid on his first week of employment and it apparent that the Complainant was not paid in the week following his dismissal, I find that this complaint is well-founded.

CA-00062342-003 – Complainant under the Organisation of Working Time Act

Regarding this particular complaint, the Complainant has alleged that he was not properly paid for all accrued annual leave on the termination of his employment. In this regard, the Complainant submitted that he was on annual leave on the date of his dismissal and did not have an opportunity to avail of the same prior to his dismissal. By response, the Respondent opened message between the parties whereby the Complainant confirmed that he received payment for outstanding annual leave at the end of 2023. Thereafter, the Complainant avail of one week of annual leave entitlement in 2024, with no further allowance due on the date of termination. In these circumstances I find that the complaint is not well-founded.

CA-00062342-004 – Complaint under the Terms of Employment Information Act

This complaint was not pursued by the Complainant and is deemed to be not well-founded.

CA-00062342-005 – Complaint under the Terms of Employment Information Act

This complaint was not pursued by the Complainant and is deemed to be not well-founded.

CA-00062342-007 – Complaint under the Minimum Notice and Terms of Employment Act

In circumstances whereby the Complainant was dismissed on 23rd February 2024, and did not receive any payment after this date, I find that he did not receive his statutory notice, and his complaint is deemed to be well-founded.

CA-00062342-008 – Complaint under the Minimum Notice and Terms of Employment Act

This complaint is a duplicate of that listed above and is deemed to be not well-founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

CA-00062342-006 – Complainant under the Unfair Dismissals Act

I find that the Complainant was unfairly dismissed by the Respondent, and his complaint is deemed to be well-founded.

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that his application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate his losses following his dismissal. By submission, the Complainant stated that he found alternative employment approximately three months following his dismissal. While it is natural to expect the Complainant to experience some delay in securing alternative employment, it is reasonable to assume that a person in possession of a skill-set in relatively high demand would secure alternative employment without much difficulty and within a somewhat shorter timeframe. Having regard to the foregoing, I award the Complainant the sum of €4,000 in compensation.

CA-00062342-001 – Complainant under the Payment of Wages Act