UD1435/2012

EMPLOYMENT APPEALS TRIBUNAL

APPEAL(S) OF:                                                                                                                  CASE NO.

                                                                                                                                    UD1435/2012

Darragh Ronan            -          Appellant

against the recommendation of the Rights Commissioner in the case of:

Wyse Transport Limited         -           Respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr. G. Hanlon

Members:     Mr. B. Kealy

Mr. P. Trehy

heard this appeal at Dublin on 4^th February 2014

                                           and 27^th May 2014

Representation:

Appellant(s) :        Mr. Brendan Archibold, 89, Philipsburgh Avenue, Fairview, Dublin 3

Respondent(s) :     Mr. Cathal McGreal BL instructed by:

       John F. Kelleher, 4/5, St. Marys Terrace, Dunboyne, Co. Meath (4^th February 2014)

       Hennessey & Perrozzzi, Solicitors, Burgundy House, Foster Way, Swords,

Co. Dublin (27^th May 2014)

This case came before the Tribunal by way of an appeal by an employee (appellant) appealing against the decision of the Rights Commissioner reference r-113404-ud-11-MMG.

This order should be read in conjunction with PW667/2012, TE212/2012 and WT348/2012. These cases were heard in tandum.

The decision of the Tribunal was as follows:-

Background:

The appellant (employee) commenced employment with the respondent (employer) in February 2007 as a truck driver driving in the United Kingdom, on overnight trips. He worked Monday to Friday only. In 2010 a reduction in wages was requested by the employer. A number of employees agreed to this reduction and signed forms to that effect. The appellant did not. The appellant resigned his position on the 19^th July 2011.

Appellant’s Case:

The appellant stated that he had never received a written contract of employment. He contended that a number of incidents occurred, he felt, gave him no alternative but to leave his employment.

On the 10^th January 2010 he was aboard a ferry in Dublin Bay. He entered the restaurant, purchased some food and approached a table where a colleague (FS) was seated. He spoke to FS who swore at him and told him to go away. FS pushed him and he, the appellant, fell down on his arm. One of the crew from the ferry company called for an ambulance who later took him to hospital. He was released from hospital later that day and was absent for a time on certified sick leave. He reported the incident to two of the company Directors – KM and BW at a meeting the following week. They said they would look into the matter but never got back to him.

In May 2010 he had a traffic accident while driving in England.

In May 2011 he drove to work and left his car in the respondent’s yard while he went to work. On his return the following day he found his car covered in grease and oil. He contacted Km who said he would view the CCTV footage. KM contacted him and informed him there was nothing on the CCTV.

On the 19^th July 2011 KM told him two trailers were to be taken to England. He began loading his trailer which was completed by 9a.m. A colleague (PW) approached him asking why he had been given the “easy” trailer. PW said he, the appellant, was taking drugs and everyone knew about it. The appellant replied no. PW pushed him and told him to get into his lorry as his name was on the paperwork. He went to the lorry and proceeded to pack up his belongings. He rang KM and told him that he could not take it anymore. Km said he would look into the matter and would get back to him. There was no contact.

He contacted BW and later met him as he still had some company property. BW asked him to sign a form to receive his P45 and his holiday money.

The appellant told the Tribunal that he had left his employment as he could no longer work there. His wages had been cut by 39% without agreement and he had been treated badly.

He gave evidence of loss.

On cross-examination he said the incident on the 19^th July 2011 was the last straw. When asked, he refuted he had received a contract of employment and was not aware if any of his colleagues had one. When asked if he had suffered a panic attack on the day of the alleged incident on the ferry, he replied that he had not before this incident had occurred. He told the Tribunal that he had been nervous of returning to work.

When put to him that KM would say that he, the appellant, had never made any complaints, he replied that KM had admitted he had the hearing in the Rights Commissioners. He agreed, when asked by the Tribunal, that there had been no incidents between May 2010 and May 2011.

Respondent’s Case:

A former colleague (FS) gave evidence. He knew the appellant had no prior difficulties with the appellant.

On the 10^th January 2010 he had been in the restaurant of a ferry when the appellant and a friend entered. The appellant approached him and he, the witness, told the appellant to walk away. The witness told the Tribunal that in the previous December the appellant told the witness that he would report him to the authorities for driving longer hours. The witness had been pulled in by the authorities and questioned.

He told the Tribunal that he had not pushed the appellant but had told him to go away as he did not want to speak to him. The appellant threatened him and told him he would slit his throat. The witness walked away. He saw the appellant walk towards the lift. He reported the incident to KM.

On the second day of the hearing the respondent’s representative gave a submission relating to the burden of proof the appellant must adduce in order to prove his position became so untenable he had no alternative but to find himself constructively dismissed.

Determination:

The Tribunal has carefully considered the sworn evidence and submissions adduced in this matter. A claim for constructive dismissal requires the claimant, to prove his position became so untenable he had to leave his employment. A list of incidents and dates were stated to the Tribunal regarding this issue up to May 2010. The appellant agreed no further incidents occurred until 2011 but, he says, this last incident forced him to leave.

The Tribunal finds the appellant has not proved his case. Accordingly his appeal under the Unfair Dismissals Acts, 1977 to 2007 fails and the Rights Commissioner’s determination stands.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)