EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Michael Gannon (appellant) UD318/2013
TE48/2013
against the recommendation of the Rights Commissioner in the case of:
Fabgem Limited T/A Delta Express
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT, 1994 AND 2001
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr. J. O'Neill
Mr. S. O'Donnell
heard this appeal at Dublin on 26th March 2014 and 2nd September 2014
Representation:
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Appellant(s) : Mark Kavanagh, IWU, 61 North Strand Road, Dublin 3
Respondent(s) : Kieran Kelly, Fanning & Kelly Solicitors, 2 Hatch Lane, Hatch Street, Dublin 2
The determination of the Tribunal was as follows:
This case came before the Tribunal by way of an employee appeal of a Rights Commissioner recommendation under the Unfair Dismissals Acts, 1977 to 2007, reference r-123149-ud-12/JW and Terms of Employment (Information) Act, 1994 and 2001, reference r-124486-te-12/JW.
The claim before the Tribunal was one of constructive dismissal. The claim under the Terms of Employment (Information) Act, 1994 and 2001 was withdrawn at the outset of the hearing.
Both parties made written (filed) and oral (noted) submissions to the hearing.
Summary of appellant’s case
The respondent operates a freight company. The appellant commenced his employment with the respondent as a full time hgv driver from 10th April, 2006 until 27th April, 2012.
The appellant told the Tribunal that from April, 2009 the respondent started reducing his hours of work per week. This practice continued during 2010 and 2011. In January, 2012 the respondent reduced the appellant’s pay by 6%. A letter dated 13th January, 2012 had stated a 5% reduction. The appellant stated that he did not agree to the reduction in pay or reduced hours. When the appellant approached the respondent about more work, he was told that the company was “spreading out the work”. The appellant indicated that did not think the work was being distributed fairly.
After the claimant was accused of stealing diesel, he stated he could not take anymore and felt he had no choice but to resign his position.
Under cross-examination, the appellant stated that he had been owed three litres of diesel from the respondent and when he filled his container with three litres, he told K it was the diesel he was owed and he was reimbursing himself. The appellant denied that he refused work from the respondent and also denied that G told him on 27th April, 2012 not to leave.
In reply to the Tribunal the appellant stated that on numerous occasions he was told there was no work when there was. The appellant accepted there was a drop off in work within the company. He stated that when he asked the respondent about redundancy, he was ignored.
The claimant gave evidence of loss and his efforts to mitigate his loss.
On day two of the hearing the appellant was re-called into evidence for further cross-examination. The respondent showed work sheets/invoices for a selection of weeks which showed the appellant had not operated a run to Kilcullen during these particular weeks. When asked how frequently he worked on the Kilcullen run, the claimant said he may not be on that run every week but if he was due to work that run it could be once or twice in a week. The appellant said he carried out bed runs in relation to Kilcullen and had colleague J to assist him.
The appellant’s representative stated that he noted the respondent did not produce run sheets in relation to the appellant’s runs.
In reply to the Tribunal as to why work sheets for other weeks’ around the same time period were not produced, the respondent’s representative stated that not all work sheets were retained by the respondent.
Summary of respondent’s case
Giving evidence, KG, Director told the Tribunal that the appellant refused the offer of work via Kilcullen when it involved a bed run, as the appellant had stated that the load was too heavy for him. The only time the appellant would do a run to Kilcullen was to transport foam. KG stated that the appellant had said “I don’t do beds” when he was offered the bed run. KG indicated that the appellant would have had full time employment if he had accepted the bed runs. The respondent had to bring in other drivers to carry out the runs the appellant refused to do.
KG recalled that in early 2012 he offered work to the appellant for a Belfast run for the following day and the appellant refused the work. The appellant was always given first preference with the foam runs and was also offered bed runs but refused. KG denied that he had “cherrypicked” the documentation showing 2011 work sheet records.
The appellant resigned his position by letter dated 30th April, 2012 stating that he was unable to work under the deteriorating conditions in the workplace.
Under cross-examination, KG stated that the respondent had discussions with the appellant and following the discussions the appellant continued to work with the company. When the appellant complained that he was not getting enough hours, the company offered him the bed runs, which he refused. The 6% reduction in pay instead of a 5% reduction was an oversight on the part of the company. KG indicated that he himself covered a number of shifts that the appellant would not do. As far as the respondent was concerned, the appellant acquiesced to the pay reduction by continuing his employment with the company. KG denied that the claimant requested redundancy.
In reply to the Tribunal, KG stated that the company employed between 6-8 drivers at the time the appellant’s employment ended.
Determination
On balance the Tribunal accepts that in all the circumstances, it was not unreasonable for the appellant to resign his position with the respondent company due to the ongoing working conditions.
The Tribunal agrees with the decision of the Rights Commissioner in that the appellant had no choice but to resign his position and varies the award to €3,700 under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)