EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Darren Gorman - claimant UD1455/2012
against
Evergrey T/A Avis Rent A Car - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary BL
Members: Mr. F. Moloney
Mr. F. Barry
heard this claim in Dublin on 17 December 2013 and 25 June 2014
Representation
Claimant: Mr. Conor Bowman BL instructed by Mr. Joe Burke, McCartan & Burke Solicitors, Iceland House, Arran Court, Smithfield, Dublin 7
Respondent: 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 case came to the Tribunal because it was alleged that the respondent had breached unfair dismissal legislation in respect of the claimant in that the conduct of the respondent was alleged to have caused the claimant to leave the employment.
Claimant’s Case
It was alleged that, subsequent to a transfer of undertakings, the respondent had tried to cause the claimant to leave in that a pre-existing staff right to use the respondent’s cars for travel to and from work – (referred to as non-rev) was cancelled without notice despite the fact that the respondent was a car-hire company. This caused the claimant the inconvenience and expense of bus travel.
The claimant also took issue with the fact that the respondent changed from paying employees monthly to paying them weekly. This discommoded the claimant because he worked a different number of days each week depending on what days he worked every week in that he worked four days on and four days off. He had many standing orders with his bank. The depot manager told the claimant that he could continue to be paid monthly even though he would be the only employee in the whole company paid monthly. However the depot manager did nothing to arrange that the claimant be paid monthly.
Having felt that he was being unfairly targeted, the claimant was given short shrift after being delayed by bus commuting factors. The claimant phoned the depot manager to apologise while on his way to work on the one day he missed the bus. The claimant was upset that the three issues of the day he was late, missing damage on a returned car and his use of non rev cars were given as grounds for a written warning. He felt that the depot manager was skipping over the first two steps in the disciplinary procedure. The claimant did not think to appeal the written warning.
Late July 2012 brought the final issue. One of the respondent‘s cars was stolen and the claimant was suspended for suspected involvement. No one, neither the depot manager nor the Gardaí contacted the claimant about the matter. To his knowledge no investigation was carried out. He got a letter saying that he could resume duty but it did not exonerate him. The claimant felt that he was still under suspicion. He was two steps short of dismissal on the disciplinary procedure and because he had complained about the removal of non rev he felt that the respondent was prepared to go to any length to say ‘we have him now, we can let him go’. The depot manager said he would be paid monthly but he was paid weekly. He was told he could use non rev cars but it did not happen. He subsequently resigned because he believed that it was not possible for him to return in these circumstances.
The claimant gave evidence of his loss.
Respondent’s Case
The depot manager gave evidence. He explained that the non-rev facility was intended for a staff member finishing a late shift and coming to work for the early shift the following morning. Problems arose because employees were holding on to cars while customers were waiting for cars. The final straw was when the desk clerk phoned HQ to say she had no car to give a customer when in fact she had the key to a car in her desk. At that point the depot manager found out that the claimant too was using a non-rev car. The depot manager had not given the claimant to use such a car.
The depot manager issued a memo on 17 May 2012 to all staff which stated ‘The usage of NON REV vehicles by Staff has been SUSPENDED’. When the claimant said that this would cause him difficulty the depot manager gave him a bus timetable and offered to pay for a taxi to take him from his house to the bus stop. The depot manager did ask the claimant who gave him permission to use non revs and he replied the previous depot manager, but he did not check this with her as he was under the impression that the claimant needed permission for each non rev use.
The depot manager told the claimant that if weekly pay was an issue for him he would organise it that the claimant continued to be paid monthly.
On 28 May 2012 the claimant was issued with a written warning. Sometime previously the claimant had taken back a rented car but failed to notice that it had been damaged. When this was brought to his attention the claimant replied that he had no training in checking cars. The depot manager arranged refresher training for the claimant. After the training the claimant failed to notice damage to two separate vehicles. Both were safety matters because in one case the damage was to a tyre and the second case the damage was to the windscreen. The claimant did not appeal the written warning.
The depot manager made the decision to suspend the claimant on full pay on 24 July 2012. A car had been stolen from the depot. The depot manager looked at CCTV footage of the event. The claimant moved the car and left it with the key in the ignition and then went back indoors. Almost immediately the thief walked past a higher value car with an open door and the key in the ignition and took the car that the claimant had moved. The Gardaí considered the claimant’s action to be suspicious. The depot manager did not accuse the claimant of stealing the car but the claimant was the only employee suspended following the theft. The depot manager did not conduct an investigation into the theft of the car. Neither did he ask the claimant whether he had been asked to move the car. When the Gardaí decided to take no further action the depot manager was happy for the claimant to return to work.
A director gave evidence. When they bought the business it was losing money. The problems with the non-rev system came to light when a member of the desk staff requested a car for a customer when she had the key to a suitable car in her desk drawer. This was a serious inefficiency. That member of staff was disciplined but continues to be employed. Some employees were unhappy and wrote to him. When they took over the business there were 110 employees and now there are more.
When disciplinary action was instituted against the claimant, the main issue for the director was safety. His concern was that a faulty car driven by a customer could be involved in an accident. He accepted that the cars were checked again when they were washed and no faulty car had been given to a customer. It was likely that the claimant’s complained of non rev use had happened before the memo issued.
The director had consulted with staff before the transfer of undertaking but staff representatives had not been appointed. The staff was not consulted before the non rev usage was suspended.
Determination
The Tribunal carefully considered the evidence adduced and the submissions made in this case. When the new owners took over the business it was making a loss and action was required to return to profitability. However in making changes the Tribunal finds that the respondent did not abide by the requirement to consult with staff members as required by the Transfer of Undertaking regulations.
Also the Tribunal finds that the respondent erred when it did not investigate for itself the circumstances surrounding the theft of a car having decided to suspend the claimant in connection with the incident.
By reason of the actions of the employer the claimant was entitled to treat such actions as fundamentally breaching his contract of employment in accordance with the provision of the Unfair Dismissals Act, 1977 Section 1 under the definition of dismissal (b).
The Tribunal finds that the claim under the Unfair Dismissals Acts, 1977 to 2007, succeeds and awards the claimant the sum of €17,500.00.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)