EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
UD1026/2012
Employee – appellant PW352/2012
against the recommendation of the Rights Commissioner in the case of:
Employer - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
PAYMENT OF WAGES ACT, 1991
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms D. Donovan B.L.
Members: Mr J. Browne
Mr F. Dorgan
heard this appeal at Wexford on 9th October 2013
and 14th January 2014
Representation:
_______________
Appellant(s) : Mr. Padge Reck, Sunrise, Mulgannon, Co Wexford
Respondent(s) : Mr. Aidan Phelan for Ms. Niamh Kelly,
Peninsula Business Services (Ireland) Limited,
Unit 3, Ground Floor, Block S, East Point Business Park, Dublin 3
This case came before the Tribunal by way of an appeal by the employer and a counter-appeal by the employee regarding the determinations of a Rights Commissioner refs: r-083038-pw-09/MMG, r-083040-ud-09/MMG & r-106015-ud-11/MMG.
The Tribunal heard evidence from witnesses for the respondent transport company that the appellant worked as a driver from June 2006 until 2010. During his tenure of employment he had a number of breaks from his employment. The Tribunal heard evidence that on 31 July 2010 the respondent received an e-mail complaint from a customer in relation to the appellant’s alleged behaviour during the course of a phone conversation. The company, in investigating this complaint invited the appellant by way of letter to an investigation meeting on 3 August 2010, the purpose of which was to discuss and afford the appellant an opportunity to provide an explanation for the following matters of concern:
1. "Alleged rudeness towards a customer, objectionable or insulting behaviour or bad language
2. Allegedly taking part in activities which result in adverse publicity to ourselves, or which cause us to lose faith in your integrity”.
The Tribunal was told that the investigation meeting was purely a fact finding mission. The Tribunal heard evidence that during the course of the investigation the appellant admitted calling the customer stupid but denied using foul language and the appellant showed little remorse for his actions. The matter then progressed to a disciplinary hearing heard on 9 August 2010. The appellant subsequently by way of letter dated 27 August 2010 was given a first and final written warning for his failure to treat the customer in a civil and acceptable manner. This warning was to remain on his file for 12 months. The appellant subsequently appealed this decision and an appeal hearing was conducted on 15 September 2010 by the operations director of the respondent company. The outcome of the appeal hearing was conveyed to the appellant by way of letter dated 23 September 2010 and the decision to issue the appellant with a first and final written warning was upheld.
The Tribunal heard further evidence that on 25 August 2010 the appellant refused to follow a reasonable instruction from management in refusing to drive a double drive vehicle. This vehicle which had previously been involved in a road accident had been driven by the appellant on a number of occasions. The vehicle had passed the European Communities (Vehicle Testing) regulations and a certificate of the vehicle’s roadworthiness was opened to the Tribunal. Following the appellant’s refusal to drive the vehicle an investigation and disciplinary process ensued. Details of the various meetings as part of that process were opened to the Tribunal. The process culminated in an appeal conducted by the owner of the company into the dismissal of the appellant. The appeal concluded that the dismissal was based on the appellant’s refusal to drive a vehicle which was safe to drive (and confirmed as such). The Tribunal was told that this was unacceptable to the company. The dismissal was based on the appellant’s refusal to drive and the decision to dismiss the appellant was upheld.
The employee was an international truck driver who was not an EU citizen but could work on an international work permit. Giving sworn testimony, the employee (referred to as GX) told the Tribunal that he started for the employer (referred to as OLX) in June 2006. March 2007 saw him leave in search of better working conditions but OLX contacted GX’s new employer and, five weeks later, GX was back at OLX to work. At the end of September 2007 he left OLX again seeking better working conditions but this next employer went out of business and in February 2008 GX was obliged to go back to Ireland where he asked OLX for his past job back. He then served on and off for OLX until June 2008 when he was granted a new work permit with OLX.
On Monday 9 February 2009 GX drove a new truck for OLX to Almería in Spain. After having to get some work done on the truck he was told on Friday 13 February 2009 to come back through England. He told OLX that he did not have the required paperwork for going through England but OLX told him to go through England.
In England GX’s truck was pulled over and two flat spots were found on his trailer. He got parked up for a day and OLX was obliged to get another company to bring GX’s trailer back to Ireland.
On Wednesday 25 February 2009 GX was in OLX’s New Ross yard after delivering his load and giving in his paperwork and details of expenses. The then transport manager (RCX) asked him to wait for her to assist him with the new permit they needed to travel to England. Within a short time OLX’s principal (referred to as WX) asked GX if he was the driver who had got detained in England and asked GX to pay one thousand two hundred euro or leave OLX. GX refused and his employment terminated.
GX subsequently attended a meeting where he was invited to return to work but he did not do so because of still unresolved issues relating to tachographs and times of work. He went to a solicitor and submitted a case to a Rights Commissioner who directed that GX be re-engaged. On 25 May 2010 he returned to work
In cross-examination it was put to the claimant that he had worked for a number of weeks with another transport company (referred to here as BLNX) and a further transport company. It was put to the claimant that he had worked in the UK during 2007 to 2008 and the claimant confirmed that he had gone to the UK and worked there from October 2007 to early February 2008.
The claimant said he could not recall the exact date in February 2008 that he recommenced working with the respondent but that it was very early in February 2008. The claimant accepted that he came back to work on a regular basis for the respondent in October 2008 but it was his evidence that he did some irregular or casual work for the respondent from early February 2008.
GX said he found it difficult to mitigate his losses because of his work permit situation.
Determination:
Having heard the evidence of the appellant employer on 9th October 2013 the Tribunal concluded that the appellant employer had discharged its burden in respect of the claim of unfair dismissal of the respondent employee on 5th November 2010. At this hearing the evidence was that the respondent employee had worked with the appellant employer from 9th June 2006 to 8th November 2010.
The case resumed on 14th January 2014 when it was the respondent employee’s evidence that there had been two dismissals of him by the appellant employer, the first being on 25th February 2009 and the second on 5th November 2010. Having considered this evidence and the other evidence adduced by the respondent employee the Tribunal finds that the service of the respondent employee in respect of these two claims was in the case of the first claim from 6th October 2008 to 25th February 2009 and in the case of the second claim from 25th May 2010, the date that the respondent employee was re-engaged by the appellant employer, to 5th November 2010. Accordingly the appellant employee does not have the one year's continuous service with the appellant employer in respect of either claim as is required by the section 2(a) of the Unfair Dismissals Act, 1977.
In respect of the first claim of unfair dismissal by the appellant employee the Tribunal finds that the appellant employee is excluded from the provisions of the Unfair Dismissals Acts 1977-2007 by virtue of section 2(a) of the Act of 1977 and accordingly his appeal fails. The Tribunal notes that in any event the redress ordered by the Rights Commissioner on 22nd May 2010 in respect of this claim was implemented when the respondent employer re-engaged the appellant employee on 25th May 2010 and this claim is thus res judicata.
In respect of the second claim of unfair dismissal the Tribunal finds that the respondent employee is excluded from the provisions of the Unfair Dismissals Acts 1977-2007 by virtue of section 2(a) of the Act of 1977 and accordingly the appeal of the appellant employer succeeds and the Tribunal overturns the decision of the Rights Commissioner dated 22nd May 2012 in respect of the dismissal of the respondent employee on 25th November 2010.
The Tribunal upholds the decision of the Rights Commissioner dated 22nd May 2012 in respect of the appeal of the appellant employee under the Payment of Wages Act, 1991 on the basis that this claim is statute barred by virtue of section 6(4) of the Act of 1991 and because of the failure of the appellant employee to comply with section 7(2)(b) of the Act of 1991.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)