EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Corrib Oil Company Limited
- appellant (employer) UD1025/2013
against the recommendation of the Rights Commissioner in the case of:
James Cooney
– respondent (employee)
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B.L.
Members: Mr T. Gill
Ms H. Murphy
heard this appeal at Galway on 2nd December 2014
Representation:
Appellant(s) : Mr. Bob McArdle, Patrick J Durcan & Co, Solicitors,
James Street, Westport, Co Mayo
Respondent(s) : Mr David Higgins, Berwick, Solicitors,
4 St Brendan's Road, Woodquay, Galway
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of the employer appealing the recommendation of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 (Reference: R-130166-UD-13.
Preliminary Issue
Dismissal was in dispute in this case with the employer submitting that the employee had sought to retire. The employee submitted that he was dismissed by letter dated 12 July 2012 however the employer told the Tribunal that the letter which the employee relies upon was furnished to him in order to facilitate him claim social welfare payments. At the commencement of the hearing the employer also offered the employee the option of returning to work. This offer was not considered an option by the employee as three years had now passed since the employment ended.
Summary of Evidence
The Tribunal heard evidence from an independent contractor who provided ADR training on behalf of the employer to all staff with responsibility for the carriage of dangerous goods in Europe. All drivers were required to hold a Hazchem licence, it being an offence to drive without certification. The employee took the Hazchem test in September 2011 and failed. The witness provided a refresher training course in and around May 2012, which was funded by the company. He stated that the employee attended the course but that he “wasn’t too bothered”. The witness was aware that the employee took the test on the 28 June 2012 but heard that he had failed. He subsequently telephoned the employee and offered him a full five day course of training without charge, as he was aware that he depended on the licence for his job. The employee told the witness that he was not going to repeat the test.
The sales and operating manager (GM) was the direct line manager of the employee (JC). He had responsibility for ensuring that all employees held valid licences and was aware the licence of JC was due to expire in July 2012. As a result, he arranged for the employee to take the test in September 2011 in order to allow the employee time to pass the test. He was aware that JC had failed the test in June 2012 and offered him further training which he declined. In July 2012 JC took holidays and on the week before he was due back to work, he telephoned the witness and inquired as to whether there was a job for him on his return. He said he had failed the ADR test and that now he would have to attend a full five day course but that “he wasn’t interested”. The witness went on to state that JC said he was anxious “to play golf and to enjoy life more” and asked him to arrange “the paper work for Social Welfare”. The witness asserted that JC made it clear to him that he “wanted out” and that he (GM) never told him that his job was gone. Following on from that conversation, the witness GM and JC met at the Tuam Road depot. GM stated that JC was in good form and was “looking forward to retirement” and was to call to head office to finalise the paper work. An alternative position was never discussed as JC indicated his intention to resign at an early stage.
Company director TC was based at the Tuam Road depot and regularly met with JC. He was aware of the training courses offered to JC and of the test results. JC indicated to him that he was in his sixties and had spoken of taking early retirement. JC never sought an alternative role in the company. GM informed the witness of the conversation he had with JC and instructed HR to provide a letter for Social Welfare. JC called to the depot on the 12 July and was instructed to call to head office for the paperwork. The witness met with him and wished him well offering to take him out for dinner. TC stated that he was surprised to receive a letter from JC’s solicitor three days later.
A witness from the HR department gave evidence of drafting the letter dated the 12 July on behalf of TC. He submitted that the letter was provided in order to assist JC. In hindsight the witness stated that things should have been done differently and a letter of resignation should have been sought from JC, an oversight by HR, but they all genuinely believed that JC wanted to retire.
A witness LM, a pay roll administrator at the head office, gave evidence that she received an email from HR and during the course of printing off a letter for JC in his presence, she stated that he was in good form and was “looking forward to playing more golf” and that he didn’t want to spend the “last quarter of his life on a lorry”. The witness gave him his paperwork and shook hands
JC gave evidence of working in the area of oil distribution for over forty years. Over the course of his employment a number of transfers of ownership took place. He accepted that the Hazchem licence was a requirement for the role. When he failed the test in September 2011 he said that he “took it badly” but wanted to keep trying. A family bereavement added to his distress in and around the period that he took the test. He recalled additional training being offered to him. He received the results of failing the test while on annual leave and contacted GM asking if he had a job. He felt his job was gone and that there was no suitable alternative job for him in the office or at the depot. JC stated that the job had got very tough and was a job for a young man. He admitted that on one occasion he had spoken to TC about getting out. He recalled asking GM for a letter for Social Welfare. He had not sought any work since.
Determination
In considering dismissal, the Tribunal must be satisfied that an employee has been dismissed pursuant to Section 1 of the Unfair Dismissals Act, 1977. On the evidence presented to it in this case, there was no evidence that the employer explicitly terminated the employee’s contract of employment. It was the employee, who being in his 60’s expressed on a number of occasions the wish to “retire and enjoy life”, and who requested the “paperwork for Social Welfare” to that end. Furthermore, he did not explore the possibility of an alternative role within the company. The employer facilitated the employee’s request and accepted his resignation. To accept a resignation does not constitute a dismissal. It was the employee in this case who terminated his contract of employment.
The Tribunal having considered the evidence submitted by both parties, find that it was reasonable for the employer to believe and accept that the employee wished to retire, having regard to all the circumstances, and finds that the employee was not unfairly dismissed from his employment. The Tribunal, therefore, overturns the recommendation of the Rights Commissioner and the appeal under the Unfair Dismissals Acts, 1977 to 2007 succeeds.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)