Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

Con O'Leary & Co Solicitors

Act

Dispute Reference No.

Date of Receipt

Industrial Relations Act

CA-00070236

24/03/2025

The Worker was employed as a Driver with the Employer from 8 July 2024 until the termination of his employment on 8 March 2025.  He contended that he was unfairly dismissed by his employer.

The Employer denied the claim, contending instead that the Worker had indicated to colleagues that he wanted to leave the job and that ultimately, he refused to undertake work assigned which led to the termination of his employment.

In his complaint form, the Worker submitted that he was employed as a Driver from 8 July 2024 until 8 March 2025 when his employment was terminated by the Employer.

The Worker outlined that he was never offered a contract to sign in relation to terms and conditions of employment and that he was verbally informed that he would be paid €850 for 40 hrs per week (Monday to Friday).  He outlined that he was also advised that if he worked an extra day, it would be paid at €170 per day but that the over time he worked over 40 hours (Monday to Friday) was paid at a reduced rate 15 euro per hour.  He stated that this was not clarified at the outset.

The Worker outlined that he was informed of his days off by a text the night before so he could never make plans in advance of his days off. He submitted that this was very frustrating as he was obliged to keep checking if jobs were coming through on the work app.

The Worker outlined that he worked through the busy tourist season and thereafter work began to slow down.  He outlined that he was then informed he would get paid a flat rate of 40 hrs per week during the quiet period. He confirmed that he was never told in advance what his 2 days off were, so he was basically on call 7 days a week. He submitted that he had to respond to jobs at very short notice and that he never refused the work.

The Worker submitted that he contacted the office on 14 February 2025 and spoke with the Receptionist. He submitted that he informed her he had to drive his wife to a hospital appointment on 20 February 2025. He submitted that he asked if it could be scheduled as one of his days off that week and that he had done so because there had been an issue with previous days off where he was told he would have to take holidays.  He submitted that he had disagreed with that proposal as he was not prepared to use holidays for his 2 days off when the business wasn’t busy.

The Worker submitted that he queried his holiday entitlement as he was never informed of the holiday policy and requested confirmation of what holidays he had outstanding from the previous year and what he had accrued at that time in the current year. He submitted that he also queried why he had not been receiving weekly pay slips as he couldn't check his pay since 13 December 2024. The Worker advised that he checked his bank account on 28 February 2025 and found his pay was short the equivalent of a day’s pay.  

He submitted that he contacted a senior manager of the Employer at that time and queried the under payment, and that she informed him that she had docked him for booking the day off to bring his wife to her hospital appointment.  The Worker further advised that he explained he was entitled to 2 days off every week and made it clear it that the day in question was to be one of his days off and that he couldn't be on call 7 days a week.   He submitted that she informed him she couldn't tell him what his days off would be as availability of work was based on the needs of the business. The Worker submitted that he informed her it was her responsibility as his employer to allocate days off in advance every week and she responded that it was the nature of the business. He further submitted that he advised her that he did not even have one job that week which was an indication that the business wasn’t busy.  However, the parties continued to disagree and ultimately the call ended without any resolution of the matter.

The Worker submitted that he contacted his Employer on the evening of 28 February 2025 and explained the issues to him, in particular he raised concerns about poor communication with employees and his concern that he had not been notified in advance of a deduction from his wages. He submitted that he explained he couldn't afford to be down money as, at that time, he was the sole earner in the family. He further submitted that he highlighted concerns int relation to the failure to issue pay slips, holidays and days off as he had not received any response previously in relation to those issues. The Worker advised that the Employer said he would sort out the issues and have a meeting to resolve those matters and that the money would be reimbursed in the coming days.

The Worker stated that he sent the Employer a message on 5 March 2025 to inform him that he still had not received the days’ pay that was deducted. He submitted that the Employer phoned and told him it would be sorted by the following Friday, 7 March. He submitted that he was not provided with any further information and that he was off on 7 March when the money went into his account late that evening. He further submitted that he knew he didn't get paid correctly but couldn't determine how much he was short as he didn't receive a payslip.

The Worker submitted that he contacted the office and spoke with the Receptionist and requested his payslip to be sent through as soon as possible.  He stated that when he was again contacted by the Receptionist on another matter, he repeated his request for payslips but never received any.

The Worker advised that he accepted jobs for Saturday (8 March 2025) brining his hours for that week to just over 40hrs. He stated that he also later received jobs for the Sunday (9 March 2025) which he rejected as he had not been paid for 2 extra days for the overtime worked in the previous week. He stated that he was not going to work extra days if he was not getting paid.  The Worker outlined that he completed his shift on 8 March 2025 and went home but that he was again sent jobs for future day but that he rejected them.  He stated that he missed a call from the Employer and that he called him back soon afterward. He submitted that the Employer asked if he had received jobs on the app for Sunday and he confirmed that he did but that he had rejected them because he wanted to know if he was getting paid a flat rate.  He again highlighted the various issues, still unresolved, in relation to his pay for the previous week and he highlighted his concerns regarding the lack of payslips.

The Worker submitted that the Employer responded by saying that he could leave the keys of the van on the drivers wheel and that he would organise someone to collect it from his house.  He stated that the Employer said that if this was the way things were to be done, they would “call it a day”.  He submitted that the Employer arranged to have the van collected later that evening.

In conclusion the Worker submitted that he hadn’t had any contact since his dismissal.  He submitted that he checked his bank account on 14 March 2025 and although he had no pay slip, he calculated that he didn't get paid for 7.5 hrs overtime the previous week, equating to €112.50.  He also noted that he never received pay slips from 13 December 2024 to 8 March 2025.

Information given by the Worker at hearing

The information given by the Worker at hearing was consistent with the details set out above in his complaint form.

He confirmed that he was dismissed on a phone call, that there was no disciplinary hearing.  He stated that he never received a contract of employment and that he did not receive payslips from 13 December 2024 to the end of his employment.  

The Worker confirmed that he believed he was underpaid by 7.5 hours of overtime and that 3 weeks before the termination of his employment he was deducted pay for a day that should have been one of his scheduled days off.  He confirmed that the Employer was on notice of his intention to take that day as one of his scheduled days off.  He further stated that despite raising queries in relation to his remaining holiday entitlement he was never given an answer.

He outlined to the hearing that he had worked 11 days straight without a day off and that he had only been paid a flat rate of pay for those days and had not been paid overtime during that period.  He stated that when he raised these matters with the Employer a disagreement ensued over the phone, and the Employer dismissed him.

In response to the information provided by the Employer, the Worker stated that the Receptionist was an integral part of the company and that it was appropriate to raise issues regarding poor communication with her.  He advised that he had also raised concerns with the Employer prior to the instant matter.  He confirmed that he understood that overtime was not paid during the “quiet period” but that there was no clarity on the timeline for such period.

The Worker stated that the phone conversation was very brief, that he had never before rejected a job and that the first time he did so was the day he was dismissed.  He stated that when he outlined his reasons for rejecting the job he was dismissed.  He stated that during that phone call the Employer did not offer to meet him the following week but that during discussion in previous days the Employer had agreed to meet.

The Employer did not provide a submission to the hearing but Mr. Callinan made the following representations at hearing:

He stated that the payslips were processed through an automated system and issued directly to the Worker.  He stated that when the Worker raised the issue initially, he did so by bringing the matter to the attention of the Receptionist and not to the Employer. He confirmed that no other employee had raised concerns about payslips and that had the Worker informed the Employer, the matter would have been rectified immediately.

Mr. Callinan advised that although the Worker had outlined his belief that he was underpaid he had not provided any specifics in relation to that underpayment and so it was not possible to address that issue.  However, in relation to the matter of the deduction of the payment for the day off he confirmed that the Worker was paid for that day in the next week’s wages.

Mr. Callinan referred to the phone call which resulted in the termination of the worker’s employment and stated that it was important to contextualise what had occurred and to understand the issues that gave rise to the disagreement.  He stated that when the Worker initially began working for the Employer there were no issues during the first eight months of employment and that any minor issues that arose were brought to the Employer’s attention and resolved amicably.

He outlined that on 8 March there were two jobs to done but that the Employer was dealing with a breakdown problem with a bus. He stated that this presented a significant challenge to the Employer as he was contracted to deliver a group of tourists to the airport.  The jobs were put to the Worker who rejected both jobs, leaving the Employer at risk of not being able to fulfil his obligation to the tourists and the tourists at risk of not making their flight.  He stated

it had also come to attention that the Worker had spoken to colleagues and advised that he wanted to leave the job. 

Information provided by the Employer

The Employer stated that on the morning of 8 March 2025 there was a large group of tourists to be collected from a Dublin Hotel and transferred to the airport.  He stated that unfortunately the bus that was scheduled to collect them broke down and it became necessary to assign the work to another driver.  He advised that the Receptionist tried to contact the Worker, but without success and that she eventually found out that he had gone home.

The Employer advised that while there was an initial problem contacting the Worker, they did eventually have a phone conversation.  He stated that the Worker had a problem with overtime payment arrangements and that he wanted to meet the next day.  The Employer stated that as work was so busy that week, he offered to meet up the following week to seek to resolve the issue but that this was not acceptable to the Worker.  He stated that in the circumstances he thanked the Worker for work done to date and accepted that the Worker was leaving his employment.  He stated that he confirmed arrangements to collect the company vehicle.

The Employer advised that the arrangements the company had in place was that no overtime was paid in the off-season period but that drivers were paid in full throughout the entire off- season period, regardless of availability of work. He further advised that from 1 April each year overtime rates applied.  He confirmed that drivers received 3 hours’ notice of any job, that they could accept the job or refuse it, and in the off-season period they still got paid for a full week.

The Employer was emphatic that he was not aggressive on that phone call.  He stated that it was an extremely busy day and that the breakdown had added to the pressure.  He stated that the company had tried to allocate the job to the Worker to help alleviate a very difficult situation and yet, despite being aware of the circumstances, the Worker refused the job.  He stated that in those circumstances he advised the Worker “It’s not working for you” and so he proposed to get the company vehicle back and end the working relationship. 

The Employer confirmed that there was no discussion between the parties in relation to an appeal, nor did the Worker make any inquiry in that regard.  He also confirmed that all payments due to the Worker had been made.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties, as well as information provided at hearing by the parties and representatives. 

I noted that the Worker alleged that he was unfairly dismissed by the Respondent.

In reviewing this dispute, it seems to me that much of the conflict that arose between the parties came about as a direct consequence of there not being clarity on the terms and conditions of employment. 

The issues that arose can be summarised as follows:

·        The Worker was dissatisfied with the non-payment of overtime, while the Employer felt he had a reasonable arrangement in place that ensured staff continued to be paid throughout the off-season and then received overtime payment in the busy periods only.

·        The Worker was dissatisfied with roster arrangements while the Employer assigned work based on demand.

·        The Worker was dissatisfied with communication regarding work assignments while the Respondent had a Jobs App in place to notify staff of their assignments.

·        The Worker was dissatisfied with the management of his annual leave.

·        The Worker was unclear about what timeline constituted the “off season” period that did not attract overtime payment.

It is clear to me that the provision of a clear contract of employment setting out the entitlements and the obligations of the employee would have at least clarified the above matters.  It is also clear that when the Worker initially raised his concerns with the Employer, he was offered a meeting within a week to discuss the issues raised.  The behaviour of both parties up to this point seems to have been reasonable and in accord with what would be expected of a Worker and an Employer in the circumstances.

However, it is evident that on 8 March the Worker behaved unreasonably in refusing to take on a job in the difficult circumstances that arose in relation to the breakdown of another bus.  At that time, based on his own account at hearing, he had agreement to meet with the Employer the following week, where any issues might well have been resolved.  Instead, he rejected the job and placed the Employer at risk of significant financial loss.  In my view, to have acted in such a cavalier fashion, falls well outside of the standards set down in S.I 146 of 2000.

On the other hand, the Employer is legally obliged to provide its employees with a written statement of core terms of employment within 5 days of commencing employment and must then provide the employee with a written statement of the remaining terms within 2 months of their start date.  It is clear that the Employer failed to carry out this obligation. It is also evident that the Employer had no clear policy or mechanism in place to formally address grievances or to deal with disciplinary matters and this too, is not in compliance with the requirement of S.I. 146 of 2000.

It is against this backdrop that the Employer acted in haste, and perhaps with a degree of frustration, in terminating the Worker’s employment.  This action was taken without any semblance of a procedure being applied.

In these circumstances I must conclude that the Employer did not follow a fair procedure in terminating the Worker’s employment and that the Worker was unfairly dismissed.