EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Noel Duggan – appellant UD1259/2011
against
George Jackson & James Quinn t/a Dellchem Chemist Deliveries – respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms K. T. O’Mahony BL
Members: Ms M. Sweeney
Ms S. Kelly
heard this appeal at Limerick on 27th March and on 8th November 2013
Claimant: Daniel J. O’Gorman of O’Gorman Solicitors,
Munster House, 75A O’Connell Street, Limerick
Respondent: Pat Hurley of Patrick A. Hurley & Co. Solicitors,
15 Adelaide Street, Cork
The determination of the Tribunal is as follows:
The fact of dismissal was in dispute.
Summary
The respondent’s business is the delivery of drugs to pharmacies and hospitals in the Munster and Galway area. The claimant commenced employment as a van driver in March 2007 with the previous owner of the business and became an employee of the respondent in 2010 pursuant to a transfer of undertakings. There were no problems with his work.
On 23 November 2010 the claimant was involved in a road traffic accident and was hospitalised for a week and unfit for work for a period of 13 weeks. The claimant’s daughter was in regular communication with the respondents throughout his absence. All matters relating to the RTA were concluded at the time of the hearing herein. The claimant’s daughter gave evidence that she was in regular contact with the respondents on behalf of the claimant throughout his absence.
On 4 February 2011 the claimant’s doctor told him that he would be fit to return to work on 14 February 2011. He then went to meet the relief driver doing his run but to his amazement he discovered that a regular full-time employee was doing his run. The employee informed him that changes had been made, that he was now on the run, that he was not obliged to discuss it and told him he should speak to the operations director (OD). Later that morning the claimant phoned OD and informed him that he would be fit to return to work on 14 February 2011 and when he asked OD where he would pick up his van he was told that there had been a restructure approximately two weeks earlier, that he would not be picking up his van because there was no work or van there for him and there was no need to return. It was confirmed to him that but for the accident he would still be working for the respondent. OD said nothing about changed routes in that conversation. OD refused his request to meet to discuss the matter. The claimant was shocked and upset at this turn of events; he was a single parent with three children and a mortgage and now he had no job. The claimant denied OD’s assertion that he was offered an alternative route. He was not more concerned with the route than the job. OD knew that recovery period was 13 weeks and the claimant would have expected to receive notification of any changes to his route.
On 8 February 2011 the claimant’s solicitor wrote to the respondents calling on them to indicate that the claimant’s job would be available to him as and from 14 February but no response was received. The claimant had difficulty getting his P.45. The claimant telephoned the administration director (AD), who told him he had heard about the termination of his employment but could do nothing as the decision was made while he was on holidays. AD arranged for the claimant’s P.45 to issue. In mid-March the claimant received his P.45 and it had a cessation date of 14 February 2011.
In or around late July 2011, through the parties’ solicitors, the claimant was offered reinstatement and by letter dated 14 September 2011 the claimant’s solicitor wrote to the respondents indicating that the claimant was anxious to take up the offer but was seeking confirmation of a number of issues: that the claimant’s salary and route would be the same, that all other entitlements would be preserved and that his salary for the interim period would be paid. The respondents did not reply to the letter of 14 September 2011 from the claimant’s solicitor or to his reminder letter dated 9 November 2011. Around 20 months later, on 23 March 2013 the respondents’ solicitor wrote to the claimant’s solicitor denying having dismissed the claimant in February 2011.
The claimant moved on and his life took a different direction from the end of 2012 and he is only seeking compensation for his dismissal up to December 2012.
Respondent’s Case
The operations director (OD) and the administration director (AD) took over the business under a transfer of undertaking. OD dealt with the drivers and AD dealt with the accounts and administrative matters. The business had not been successful under the previous owner. Changes such as elimination of overlapping routes were necessary and OD knew he would need the input of the drivers to succeed. He met with the drivers, including the claimant, in July 2010, prior to the transfer, and informed them that there would be route changes. The drivers were given and signed contracts of employment. No driver is now on the same route as he had before the transfer. All drivers, except the claimant, who transferred have remained in their employment. Route changes were discussed with all drivers. Route optimization is an on-going process. Following the claimant’s road traffic accident the van was a write-off and had to be replaced with someone to drive it.
OD accepted that the claimant phoned him on 4 February 2011 about returning to work. He did not tell the claimant during that phone call that his job was gone. OD told him that the routes had changed and that four other employees were also doing different runs. OD gave the claimant two options: he could put a van on the road and work as a sub-contractor or he could work as a relief driver. The claimant put down the phone. OD understood that the claimant had given his notice and felt that it was ‘a heat of the moment thing’. It was OD’s position that he had received two phone calls, about five days apart, from the claimant. In the earlier call the claimant had indicated that he felt he had a good case arising from the accident and he felt that he would not be returning to work and in the second he wanted his job back. The respondent had work available at the time. There was no subsequent contact from the claimant apart from a solicitor’s letter. If the claimant had phoned him at any stage they would have talked.
The evidence of the administration director (AD) was that the claimant phoned him and requested P.45 to enable him to claim social welfare as he was going in another direction. Later, OD told him that the claimant’s route was changed and the claimant was not interested in it. The claimant did not ask AD to over-rule the decision on his route or job. As regards the letter of February 2011 from the claimant’s solicitor, AD had instructed their solicitor to reply to it.
AD received a copy of the claimant’s application form (T1A) to the Employment Appeals Tribunal claiming redress for unfair dismissal, by registered post, in early June 2011. No appearance was entered to the T1A and it was probably in response to this that he instructed his solicitor to offer reinstatement to the claimant. AD had no issues with the claimant. The offer of reinstatement was made over the phone by the respondent’s solicitor in or around late July 2011 to the claimant’s solicitor. By letter dated 14 September 2011 his solicitor wrote to the respondent indicating that the claimant was anxious to take up the offer but was seeking confirmation of a number of issues: that the claimant’s salary and route would be the same, that all other entitlements would be preserved and that his salary for the interim period would be paid. The respondent did not reply. A reminder letter dated 9 November 2011 to the respondent’s solicitor enclosing the letter of 14 September was not replied to. On 21 March 2013, the respondent’s solicitor wrote to the claimant’s solicitor denying the dismissal in February 2011 and confirming that the claimant’s job was still available to him.
AD was not concerned about the financial impact the accident had on the business. He accepted that the respondent’s insurance doubled following the accident.
Determination
Dismissal was in dispute in this case.
The Tribunal accepts the claimant’s version of the phone conversation between himself and OD on 4 February 2011. The words used by OD during the conversation, that there was no van or run there for him and that there was no need to turn up, constitute an unambiguous dismissal. This in reinforced by the respondents’ failure to reply or respond in any way to the letter of 14 September 2011 from the claimant’s solicitor, calling on the respondents to indicate that claimant’s job was available to him. Even though it occurred subsequent to the lodging of the T1A, the respondents’ failure to reply to the letters of 14 September 2011 and 9 November 2011 from the claimant’s solicitor corroborates this finding and leads the Tribunal to conclude that the offer of reinstatement made in July 2011 was not genuine. As there were no grounds to justify the claimant’s dismissal, the Tribunal finds that the dismissal was unfair.
Accordingly, the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and the Tribunal considers compensation in the amount of €35,000.00 to be a just and equitable award in the circumstances of the case.
Sealed with the Seal of the
Employment Appeals Tribunal
This____________________________
(Sgd.)___________________________
(CHAIRMAN)