UD1774/2011

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                             CASE NO.

EMPLOYEE                                                                                                   UD1774/2011

                                                - claimant

against

EMPLOYER                                        - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. E. Daly B.L.

Members:     Mr. D. Morrison

                   Ms. A. Moore

heard this claim at Letterkenny on 1^st May 2013

                                                and 19^th September 2013

Representation:

Claimant(s) :

Respondent(s) :

The determination of the Tribunal was as follows:-

Claimant’s Case:

The claimant gave evidence. He was employed as a truck driver for the respondent from 2002. There was a good working relationship with the respondent. However when there was a decline in business 2009 and he, and others, were laid off for a short period of time. He completed an RP9 form and submitted it to the respondent. The claimant felt the respondent’s attitude towards him changed and the respondent refused to sign the form. He returned to work but was given no driving work for 50% of the time. He was given other tasks to perform.

The claimant told the Tribunal that another staff member with less service were given more work than him. The claimant told the Tribunal that he was asked to carry out duties in vehicles with no road tax, unroadworthy tyres and the respondent was using illegal diesel to fuel the company vehicles. He felt he was demeaned in front of other staff.

In November 2010 he was again laid off and submitted an RP9 form. The respondent told him he was “pissed off” with him for submitting the form. The claimant told the Tribunal that he was constantly stressed at the thought of being stopped by the Gardai or Customs and Excise.

On the morning of the 30^th March 2011 he arrived to work but there was no driving work to be done so he proceeded to wash a digger. It began to rain and as he, and a colleague had no raingear they sheltered from the rain. The respondent when seeing them told that if they had no wet gear they could go home and informed them he had no other work for them. The respondent told him that if he was quick enough to send him letters, he would send letters to him.

The claimant told the Tribunal that he felt this was the last “straw” and left work. He felt he could not return to work for the respondent due to way he was treated. He attended his doctor who prescribed medication. He gave evidence of loss.

On cross-examination he said that he had moved a truck for a friend but did not receive any monetary compensation. When asked he said that he had discussed the mortgage protection policy on his home in 2009. He had not discussed matter of leaving his employment to travel to Australia for a year.

Respondent’s Case:

The respondent (Managing Director) gave evidence. The witness stated he was an extremely good and reliable worker and would offer any potential employer a very good reference on his behalf. He never refused to carry out any tasks requested of him, he was his main driver.

In 2008 a meeting was called and all staff were made aware of the financial state of the business. The witness told the respondent that he should sell up and then he would have less stress. The claimant requested a redundancy payment but the witness told him he could not afford it.

In 2010 the staff, including the claimant was on a period of lay off due to the downturn in business.

On the 30^th March 2011 there was no driving work to be carried out. The witness requested the claimant and a colleague (M) to wash the lorries. The witness departed on one-hour walk. On his return it was raining and the lorries were where they had been previously and the claimant and M were sheltering from the rain. The witness admitted he was very annoyed and heated words were spoken. He told the Tribunal that he could not pay staff to sit around doing nothing. He told both employees if they had no wet gear there was no work and they could go home. The claimant never returned to work but his colleague did.

The respondent wrote to the claimant on four occasions but did not reply or return to work. The witness issued the claimant’s P45. He later replaced the claimant with two part-time staff.

On cross-examination he agreed he had been annoyed on the day in question and he had had a very stressful time in the past. He had spoken to M about it in the past. M returned to work after he and the claimant had been sent home. He had never dismissed the claimant.

In response to questions regarding worn tyres he replied that each employee was responsible for their vehicle and replacement tyres were delivered weekly, if needed. In respect of the allegation of using illegal diesel he admitted he had on three occasions but had later, on each occasion, removed the fuel from the lorries.

The claimant had been replaced by two part-time workers.

Determination:

The Tribunal have carefully considered the evidence adduced in this matter. The claimant is claiming he was constructively dismissed. The Tribunal finds this is not the case and therefore the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)