The following case Thomas Marsh T/A Thomas Marsh Plant Hire & Quarry Supplies v David Cunningham UD1524/2010 is especially important for employers who are paying employees a different rate of pay to what is stated on their payslips.
The case highlights that if a Tribunal becomes aware that there are irregularities in the rate of pay received by an employee then the Tribunal will be obligated to report that to Revenue which will have significant ramifications for both the employer and employee.
Background
The employee, who had been employed as a truck driver from August 2006, was placed on a three-day week from January 2009. In May 2009 the employee was dismissed by reason of redundancy. The employer’s position was that the employee, one of only two remaining drivers at the time, was selected for redundancy based on last in first out.
Decision
The employer, whose evidence was imprecise, inconsistent and given in a reluctant manner, was unable to furnish the Tribunal with any specific or documentary evidence to support his assertion that the employee had less service than the other driver who was retained. In those circumstances the Tribunal cannot be satisfied that the selection of the employee for redundancy was fair and, accordingly, it must follow that the dismissal was unfair.
Award
When assessing loss it was difficult for the Tribunal due to the lack of specificity as to when the other driver, who was the last remaining driver, was let go. In all the circumstances the Tribunal considers that the other driver worked for some ten weeks after the employee was dismissed and awards €2,500 under the Unfair Dismissals Acts, 1977 to 2007.
Note for Employers
During the hearing of this appeal it became apparent that the rate of pay received by the employee, and agreed by both parties, was not reflected in the payslips and for these reasons the parties were advised that copies of this determination are to be sent to both the Department of Social Protection and the Revenue Commissioners.
