EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD331/2013
CLAIM OF:
Philip Byrne
-Claimant
against
Kieron Byrnes T/A Consolidated Merchandisers Limited
Kieron Byrnes T/A Consolidated Merchandisers Limited
-Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. Mc Govern B.L.
Members: Mr. R. Murphy
Mr. M. O'Reilly
heard this claim at Dublin on 3rd April 2014 and 14th April 2015
Representation:
Claimant: In person
Respondent: Mr. John Barry, Management Support Services, The Courtyard, Hill Street, Dublin 1
Respondent case:
The Tribunal heard evidence from KB who is a director of the respondent. The respondent is a haulage contractor that employs seventeen staff most of whom are drivers. They are contracted to one main customer (known as BHC) who imports and delivers health care products around the country. The deliveries vary in size and are made daily. Furthermore, some of the deliveries are urgent as they relate to specific illnesses that require daily deliveries of healthcare product. Ten of the respondent’s vehicles are based in Dublin and three in Belfast. The claimant commenced employment in 2004 at which stage he was issued with a contract of employment. In June 2011 the company attempted to update all of the employee’s contracts of employment.
In or about mid 2010 the claimant told the witness that he had some issues in work. The witness asked the claimant to revert with details but he never did. The claimant was a very good employee and they never had any problems until late 2010 when the claimant started questioning the overtime rota and the routes the drivers were required to complete.
The witness explained that overtime was a large feature of the work and the claimant never had difficulties in this regard in the past. The claimant made a complaint about the routes not being evenly distributed. He felt that he was charged with the longer more onerous routes more regularly than other employees. He felt that he was required to work outside his contractual hours and that it was contrary to the provisions of the Health and Safety legislation. He wanted to work core hours and not have to engage with excessive overtime.
In response the respondent examined the routes and the number of times each driver was asked to do longer and/or shorter ones. The respondent felt that they had been fair in allocating the work. In this regard the witness issued a note to the drivers before Christmas 2010 to say that all routes were planned for fairness and to equally allot/share overtime.
The claimant raised a further issue about having to carry heavy boxes upstairs to various customers. The said boxes were a regular feature of the work in that they were related to specific health care products that were imported and packed in this manner. In response the respondent only sent the claimant on deliveries where he did not need to access stairs with the deliveries i.e. ground floor deliveries only.
On Tuesday 15th November 2011 the claimant was given what the respondent considered a standard delivery to Sligo. However the claimant refused to deliver two products to patients as he believed the journey would take him outside his core contractual hours. The deliveries were medical products for delivery to renal patients. In the absence of the claimant delivering these essential medical products the respondent had to engage a courier to do the delivery. The claimant told the witness that it was forced overtime and that the deliveries were being forced on him.
Following this incident the respondent issued the claimant with a written warning dated 17th November 2011. The witness considered it very serious that the claimant refused to deliver essential medical products to renal patients, which is a fundamental part of the respondent’s contract with BHC. The letter further reiterated that the respondent believed that overtime is a necessary part of the role and that routes are evenly distributed between employees to ensure that everyone shares the more difficult routes. The letter noted that this written warning was issued in accordance with the second stage of the disciplinary procedure and demonstrates the seriousness of the incident. The letter further stated that the claimant could appeal the sanction within five days. No appeal was received from the claimant.
On 16th June 2012 the claimant wrote to the respondent concerning his work hours. It was the claimant’s position that he felt he was forced to work overtime and was not getting all the breaks he was entitled to. He felt that he was being taken advantage of by being asked to work certain routes which were changed without negotiation with the employees. He sought a reply to the letter within two weeks.
The respondent replied on 20th June 2012 stating, inter alia, that all employees are required to work overtime as it is the nature of the job. Employees are required to be flexible and the respondent attempts to be fair to all employees when allocating routes taking into consideration mileage and driver preference. The routes had not been changed in recent times and the claimant had not been given additional routes to compensate for other drivers. The respondent in the letter stated that it had facilitated that claimant by reducing his hours and giving him less routes.
On 24th July 2012 the claimant had, what the respondent terms, a near miss incident. Following the incident the claimant requested a meeting with the EHS department to discuss the causative factors he believes contributed to this incident including extended work hours and excessive pressure. The matter was investigated and it was determined that ‘near miss’ incidents are an inherent risk when driving for work. The claimant was not under any undue pressure and there was no reason to believe that tiredness etc was a causative factor. No further action was recommended from the EHS department.
This near miss incident also formed the basis for a grievance by the claimant against the respondent. The grievance was investigated in conjunction with the main client (BHC) but no further action was recommended. Following this grievance the witness stated that further reduced routes were offered to the claimant as a goodwill gesture. This was communicated to the claimant by correspondence dated 29th August 2012.
It was the witness’ evidence that the claimant continued to refuse to do certain routes and continued to insist that he set his own work hours. The claimant was consistently confrontational with the witness and other employees and was not performing his duties. Following a disciplinary meeting on 3rd October 2012 a final written warning was issued to the claimant. This warning was not appealed.
On 13th November 2012 the claimant attended for work as normal. However, having viewed his vehicle for the day he refused to complete the route allocated to him. When he was asked to return the keys of the vehicle so that another employee could complete the route he refused to hand them over stating that the vehicle was unsafe to drive. The claimant stated that he had taken the vehicle to garage to have it checked himself and felt that it was not safe to drive for more than 7/8 hours. He wanted the vehicle investigated by an independent third party and until the witness and another employee agreed to this he was not handing over the keys. The Gardai were subsequently called as the route had to be completed that day given patients were waiting for deliveries. On arrival of the Gardai the claimant handed the keys over.
On 15th November 2012 a disciplinary meeting was held to discuss the incident and the claimant’s behaviour. By letter dated 19th November 2012 the respondent dismissed the claimant effective that date. All outstanding pay and holiday pay would issue in due course. The claimant was offered the opportunity to appeal but did not do so.
The Tribunal heard evidence from NM who is the route planner for the respondent. He explained that all drivers did overtime as it was a feature of the job. He alternated drivers and routes regularly in order to be fair to the employees in terms of the work available as some wanted more overtime than others. He stated that all routes were basically the same with some small differences. As far as NM was concerned the claimant was a good employee and at one time had no difficulty with the routes or overtime. At the start of 2011 there was a change in the claimant’s attitude. He didn’t want to do certain things and was inclined not to complete tasks. Furthermore, the claimant had become more confrontational than before particularly in relation to the issue of overtime. It was the claimant’s opinion that he was being asked to do more overtime but the reality was that overtime was reduced due to increased efficiency within the company across the board.
The witness attended the various disciplinary meetings as note taker. He stated that the claimant’s demeanour throughout all of them was confrontational. It seemed to him that the claimant just wanted to do what he wanted when he wanted and would not engage otherwise. He consistently stated that he did not recognise the 2011 contract and only wanted to work core hours. The witness was present on the 13th November 2012 when the claimant refused to hand over the keys. NM stated that it was inappropriate for the claimant to take the truck to a third party garage when the respondent had a contract to have all the trucks serviced. Following the incident he had the truck serviced and there was no problem with it.
Claimant’s case:
The Tribunal heard evidence from the claimant. He explained that he had arrived into work on 13th November 2012 and thought that there may be a problem with his vehicle. . The vehicle had been driven the previous evening by a mechanic who made some passing comment about the claimant’s leg. This led the claimant to believe that there may be something wrong with the truck in particular the clutch (given the mechanic had mentioned the claimants leg). In the circumstances he decided to ask to have the vehicle independently assessed and went to the office to get the key. He saw E checking deliveries in the office with NM. He told NM that he did not want to drive the vehicle because he believed that there was a problem with it. He was repeatedly told to put the goods on the vehicle and to drive the vehicle and he refused. His employer than told him that he wanted the key to the vehicle. The claimant refused and told NM that he wanted the vehicle checked before driving it. It was the claimant’s opinion that it was not safe to drive for more than 7/8 hours as the clutch was probably stiff which would affect any driver. NM told him that the Gardaí had been called. The claimant then drove his own car to the local Gardaí station but they stated that they had not received any call from his employer. The claimant returned to work and saw that the Gardaí had arrived. The Gardaí advised him to give the employer the keys and that it was a complete waste of Gardaí time. He told the Gardaí that it was the employer who had called them. He went back to work and told the people in the work area that he was there to work but KB told him to go home. He did go home and the next thing was that he was called to a disciplinary meeting.
The claimant gave evidence that over time the respondent constantly increased his workload. He gave evidence as to what he believed his hours of work to be as set out in his original contract. He did not sign the 2011 contract and did not consider himself bound by it. He communicated this to the respondent on a number of occasions but does not believe that KB addressed what he believed to be a grievance in any meaningful way.
The claimant told the Tribunal that he felt that KB was abusing his good nature by asking him to do so much overtime and feels his pleas in this regard were ignored. When queried by the Tribunal about his failure to deliver certain items and not doing certain routes the claimant did not answer. Furthermore, the claimant did not acknowledge any concessions the respondent made in reducing his hours and routes.
The claimant acknowledged that he was afforded the opportunity to appeal the written warnings and the dismissal but he did not do this. He felt that there was no point appealing as it would not be an impartial independent appeal.
Determination:
The Tribunal considered the evidence of both parties carefully and believes the respondent acted fairly and reasonably when dealing with the claimant. The respondent engaged the disciplinary process in response to the claimant’s consistent failure to complete his duties. . The claimant did not avail of any of the appeals offered to him in relation the written warnings and ultimately the dismissal. When a grievance was raised by the claimant regarding his working hours/ conditions and the employer dealt with it appropriately. Furthermore, the respondent offered the claimant alternative working hours/ conditions which the claimant refused. In the circumstances the Tribunal determines that the claim under the Unfair Dismissals Acts, 1977 to 2007, fails
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)