EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Pat Murtagh – claimant UD1944/2011
Against
McArdle Transport – respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr N. Ormond
Mr F. Keoghan
heard this claim at Dublin on 1st August 2013 and 7th February 2014
Representation:
_______________
Claimant(s): Mr James Egan B.L., instructed by:
Mr Francis Bellew
Ahern & McDonnell, Solicitors, Roden Place, Dundalk, Co. Louth
Respondent(s) : Mr Aidan Phelan
Peninsula Business Services (Ireland) Limited
Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
The determination of the Tribunal was as follows:-
This was a claim for alleged constructive dismissal. Accordingly, the claimant went into evidence first.
Summary of claimant’s evidence:
The claimant was employed as a lorry driver by the respondent company. His employment commenced in 2009 with company A. He worked on continental routes, mainly to Spain and Portugal, driving a refrigerated lorry. He brought pharmaceuticals out of Ireland and fresh fruit back in. He agreed a daily rate of €140 with company A, which included his expenses. There was a transfer of undertakings to the respondent company in April 2010. The claimant did not have a written contract of employment with company A. The respondent company offered him a written contract in September 2010. The claimant refused to sign this contract as it stated that his hourly rate was €10 per hour. His pay had continued at the same rate with the respondent.
Sometime after this the claimant was put on Irish routes, which attracted a lower rate of expenses. The claimant told his employer that he was not interested in working Irish routes and wanted to be returned to continental driving. He was told that the company wanted experienced drivers in Ireland as it was good for the company when meeting customers. The claimant contended that he did not meet customers in Ireland as his work involved collecting containers from Dublin port and returning to the yard with them two to three times a day. New drivers were put on the continental routes.
The claimant’s net pay dropped from €700-€900 per week to €400-500 per week. The claimant’s payslips reflected that his hourly rate continued to be €10 gross per hour. His subsistence was included on the payslip and was added to his gross pay less deductions to create his net pay. Therefore his net pay always appeared higher than his gross pay.
He denied that the manager of the respondent company phoned him to let him know that more continental work had been secured but that he would require air freight and hazardous training. The claimant denied that he was scheduled for training on 9th July 2011. The claimant submitted his resignation, giving 2 weeks’ notice, on 18th July 2011. The claimant gave evidence of his loss (8 months in total).
Summary of Respondent’s evidence:
The General Manager, (GM), told the Tribunal that following the transfer of undertakings, drivers remained on the same terms and conditions as with the previous employer, including rate of pay. As a result in the downturn of continental work, the claimant was allocated domestic work which had increased due to another Irish company closing down. The claimant’s rate of pay remained unchanged but working a domestic route means less subsistence payments. The GM explained that according to Revenue Commissioners, subsistence cannot be regarded as a substitute for wages. The claimant objected to working the domestic routes instead of continental routes, which attracted a higher level of subsistence payments.
On 13th April, 2011 the GM met with the claimant and listened to his concerns in relation to the work change. The GM stated that the claimant agreed to carry on with the work available. The GM wrote to the claimant on 15th April, 2011 in relation to his refusal to attend work. On 9th May, 2011 the claimant did not show up for work and sent a text to the respondent at 6am when he was due to commence work.
The respondent received a solicitor’s letter from the claimant dated 1st June, 2011 calling upon the respondent to re-appoint the claimant to the duties for which he was employed.
The respondent replied on 8th June, 2011 enclosing the company’s grievance procedure. On 14th June, 2011 the GM met with the claimant after which the claimant contacted his solicitor to say that matters had been resolved. On 24th June, 2011 a text was received from the claimant stating that he was unable to work due to a problem with his back. On Monday 27th June, 2011 the claimant did not report for work and could not be contacted. An e-mail and medical certificate was received from the claimant on 28th June, 2011 stating that he could not get out of bed over the weekend due to a back problem.
On 5th July, 2011 continental work was confirmed with the respondent company and as a result the respondent arranged for relevant training for the claimant. The GM stated that the claimant confirmed his attendance. The claimant did not show up at the training course arranged by the respondent.
In cross-examination, the GM stated that although he did not have financial accounts at the hearing to prove a downturn on the continental work, he stated that there was a one million drop in turnover. He did not accept that the claimant was merely a refrigerated driver and said he was employed by the respondent as a driver. Skill set and volume of work were factors taken into account for continental work. The GM denied that national work was more physically demanding. He confirmed that he was aware of the claimant’s previous back injury. The GM accepted that because subsistence rates varied depending on where the claimant worked, the claimants take home money was less than when he worked on the continental routes. The drivers chosen for the continental work had the necessary air freight and hazardous training. There was no difference in cost between each driver. GM denied that pharmaceutical work only dried up two months ago.
In reply to the Tribunal the GM stated that the number of continental drivers reduced from fifteen or sixteen down to five.
Determination
The Tribunal finds, on the evidence adduced that the claim under the Unfair Dismissal Acts must fail.
We are of the view that the respondent did everything possible and we are of the view that subsistence can vary having regard to the location and the rules approved by Revenue.
As this is a constructive dismissal case, the onus of proof is on the claimant/employee and on the evidence he has failed to discharge that proof.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)