Mr K Reilly v Auto Services Perth Ltd: 8000086/2025
JUDGMENT
The Judgment of the Tribunal is that the claim is dismissed.REASONS
[1]The claimant, Kenneth Reilly, claimed that the respondent Company (“Auto Services”), had made an unlawful deduction of wages from his final salary. His claim was denied by the respondent. In short, Mr Reilly was employed E.T. Z4 (WR) by Auto Services as a Recovery Driver. He damaged a vehicle which he had recovered when he was unloading it. The respondent maintained that he was negligent. They dismissed Mr Reilly summarily because of this and they deducted the cost of repairing the damaged vehicle from his final salary payment. They maintained that they were entitled to do so as a consequence of Mr Reilly’s negligence, in terms of his Contract of Employment.The evidence
[2]I first heard evidence from the respondent’s Director, Mark Crozier. I then heard evidence from Mr Reilly.[3]The respondent submitted documentary productions (“R”), as did the claimant (“C”). Observations on the evidence[4]Mr Crozier gave his evidence in a measured, consistent and convincing manner and presented as credible and reliable. Although Mr Reilly disputed that he was at fault for the damage to the vehicle, in response to the letter terminating his employment he wrote to Auto Services to say that he was “accepting responsibility for the incident in question.”The facts
[5]Having heard the evidence, and considered the documentary productions, I was able to make the following findings in fact, relevant to the issue with which I was concerned. For the most part, these were either agreed or not disputed. The principal issue between the parties was whether or not Mr Reilly had been “negligent”.[6]Auto Services’ business is that of vehicle breakdown recovery. They also have a Bodyshop to do repairs. Mr Reilly commenced his employment with Auto Services on 5 February 2024. His Contract of Employment was one of the respondent’s documentary productions (R1-9). Both parties signed the Contract (R9).[7]On 18 September 2024, Mr Reilly was instructed to recover a vehicle, an Isuzu D-Max, which had broken down. The respondent’s recovery vehicle he used was approximately 5 months old. He had used that particular vehicle on a few occasions previously, without mishap.[8]He collected the Isuzu vehicle, loaded it on to the back of the recovery vehicle, secured it and drove it to the nominated garage for repair.[9]At the garage he was required to unload the vehicle from the back of the recovery truck. As he did so the vehicle rolled off the recovery vehicle at speed and caused damage to a garage door and drainpipe as well as to the Isuzu vehicle itself.[10]Mr Reilly reported the accident to the control room staff at Auto Services but he did not report it to management and nor did he complete an accident report form.[11]On or about 21 September 2024, the owner of the garage contacted Auto Services to advise them of what had occurred. He also sent them CCTV footage of the accident which was viewed by Mr Crozier and the other Directors. The footage showed Mr Reilly undoing the four ratchet straps which had secured the vehicle when Mr Reilly transported it to the garage. However, the parking break had not been applied and that was why, in the Directors’ view, the vehicle had rolled off the back of the recovery vehicle. The Directors took the view, that Mr Reilly had been negligent.[12]When he gave evidence at the Hearing Mr Reilly accepted that he did undo the ratchet straps and that the parking break had not been applied. However, he denied he was at fault. He claimed that when he was unloading the Isuzu vehicle from the back of the recovery vehicle it was secured by the winch and that he was using the remote control for the winch to control its descent. However as he pressed the remote control the winch “unrolled itself and the vehicle shot off the back of the recovery truck.” He claimed that there was a mechanical fault. He claimed that he had been advised by one of his colleagues “Matthew” that the same thing had happened to him some two weeks previously. Termination of Mr Reilly’s employment[13]Having viewed the CCTV footage with his fellow Directors, on 21 September 2024 Mr Crozier attempted to contact Mr Reilly to discuss the incident by telephone and text message but he was unable to do so.[14]On the same date, he sent a letter to Mr Reilly to advise him that the Directors had decided to terminate his employment. The following are excerpts from the letter (R10-11):- “On 18/09/2024 at around 16:00, the vehicle that you were recovering was not secure on the beavertail recovery vehicle and rolled at speed off into some pallets and property. This caused damage to the rear of the customer’s vehicle and damage to the repairing garage’s property. CCTV footage and images are available on request. After reviewing the footage, the Directors have decided that the incident was negligent and dangerous. This could have caused serious injury to yourself or other people and would have been avoided if you had checked to see if the vehicle was safe to unload. Upon investigation, the incident was not reported to managerial or control room staff. Photos were taken on the job but the incident was not reported and an accident form was not completed upon return. It has been decided to terminate your employment immediately under the terms of gross misconduct…………………………………………………… As the damage caused was due to negligence. Auto Services Perth Ltd will look to recover costs involved which will be confirmed once a full estimate has been carried out.”[15]Mr Crozier also referred in his letter to the provisions in the Contract of Employment relating to gross misconduct (R8) and the following provision (R6):- “22. NEGLIGENCE AND DAMAGE 22.1 If you are responsible for any damage to any company vehicle, customer’s vehicle, company property or property of a 3rd party and this is deemed to have been due to negligence on your part, (whether due to reckless, careless driving or poor workmanship as examples) and should have been avoided, then you may be held responsible for rectification costs. This may involve the company disciplinary process and it will be up to the company General Manager and/or Directors to decide whether any money should be deducted from your salary to reimburse the cost accrued for rectification to the company for the damages.”[16]As I recorded above, in response to the termination letter Mr Reilly responded in writing as follows (R12):- “Just to let you know I’m accepting responsibility for incident in question. I will contact my solicitor tomorrow. I was told by member of your staff that same happened to them but they managed to stop the vehicle. The winch was still attached to vehicle. It unrolled itself. If you’re giving me a price I would like second opinion from garage of my choice. I will be contacting my solicitor you can deal through them.”[17]Mr Crozier arranged for the winch on the recovery vehicle to be checked but no fault was discovered.[18]The respondent has a Bodyshop and they were instructed to carry out the repairs to the Isuzu. The vehicle was repaired at a cost of £2,521.44 (C1).[19]Auto Services did not claim on its insurance as the sum involved was below its excess. However, it decided to apply Clause 22 in Mr Reilly’s Contract of Employment and deduct the sum of £2,264.14 from Mr Reilly’s final salary payment. This was the sum which Mr Reilly sought to recover. Discussion and Conclusions[20]I was satisfied, on the evidence, that it was reasonable, in all the circumstances, for the respondent to conclude that it was likely that the damage caused to the Isuzu vehicle was due to Mr Reilly’s negligence. The Directors viewed the CCTV footage; the recovery vehicle was only a few months old; no faults had been reported to Auto Services previously; and when the vehicle was checked after the accident no faults were discovered. Further, Mr Reilly “accepted responsibility” for the accident and in his letter (R12) he only asked that he be allowed to check the recovery costs.[21]Mr Crozier gave evidence, which I accepted, that the cost of the repair work which Auto Services carried out “kept the costs down”. I had no reason to doubt that the costs of £2,521.44 were reasonable. Further, Auto Services only deducted the sum of £2,264.14 from Mr Reilly’s final salary. They did not seek to recover either the balance; or the cost of repairs to the garage, a few hundred pounds, which Auto Services paid itself.[22]I was satisfied that the Clause in the Contract of Employment, in terms of which Auto Services made the deduction from Mr Reilly’s salary was lawful and enforceable. The relevant statutory provision is s.13 of the Employment Rights Act 1996: “13. Right not to suffer unauthorised deductions(1) An employer shall not make a deduction from wages of a worker employed by him unless – (a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or (b) the worker has previously signified in writing his agreement or consent to the making of the deduction.(2) In this section “relevant provision”, in relation to a worker’s contract, means a provision of the contract comprised – (a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or (b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.”[23]In my view, the deduction which Auto Services made in the present case was a “relevant provision” of Mr Reilly’s contract; a provision Mr Reilly was aware of; and the deduction which Auto Services made was lawful.[24]For all these reasons, therefore, the claim is dismissed.