UD1015/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                 CASE NO.

Marius Serenas                                                                                   UD1015/2013

against

Lucey Transport Limited

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms. M. Levey BL

Members:     Ms. A. Gaule

                    Mr P. Trehy

heard this claim in Dublin on 25 September 2014 and 16 January 2015

Representation:

Claimant(s):       No legal or trade union representation

Respondent(s):   Mr. Alistair Purdy and Ms. Siobhán McGowan, Purdy Fitzgerald, Solicitors,

                          Kiltartan House, Forster Street, Galway

Respondent’s Case

The respondent is a large transport company and the claimant was employed as a driver commencing employment on 6 September 2007. He was provided with a contract of employment, a copy of which was opened to the Tribunal. Clause 5 of the said contract provides that “you are required to work 39 hours per week. Due to the nature of the business from time to time you may be required to work additional hours and you will not be entitled to any additional salary in respect of any such additional hours of work….”

The Tribunal heard evidence from the respondent’s operation manager that there were no issues with the claimant’s work performance until late 2011. He gave evidence that a number of customers made complaints in relation to the claimant’s aggressive behaviour towards them. The company initially handled the complaints on an informal basis with the claimant but by 2012 the issues escalated whereby two large customers complained about his aggressive behaviour and his refusal to co-operate with the customer’s security policy when delivering goods. The claimant also failed to follow the correct company procedures in picking up a trailer on 24 July 2012 which resulted in the trailer being delivered to a wrong address. The company commenced a formal investigation process into these matters resulting in the claimant being issued with a first written warning on 19 September 2012.

There continued to be a number of on-going issues with no improvement in the claimant’s performance. The claimant was then issued with a final written warning on 4 January 2013 following incidents which occurred on 18 September 2012, 28 September 2012 and 30 November 2012. This final written warning was issued following the conclusion of an investigation and disciplinary process.

The Tribunal heard further evidence that the claimant subsequently refused to work beyond 39 hours per week which the company alleged was in breach of his contract of employment. On 23 February 2013 he was requested to attend a disciplinary hearing to discuss his withdrawal of labour on 15 and 22 February 2013. He did not provide any appropriate explanations for his withdrawal of labour and he was dismissed from his employment by way of letter dated 9 April 2013. He was given the opportunity to appeal this decision and he exercised his right of appeal.

Claimant’s Case

The claimant gave direct evidence that he worked as a driver for the respondent company from 6 September 2007. He was very happy in his workplace and worked an average of 42/43 hours per week. He generally commenced working at 5am finishing in the afternoons. He gave evidence that from January 2012 his working hours changed and he was required to work extra hours per week. He was also placed on different routes and was required to work night shifts. On one occasion he was told not to report for work for two days and received no payment for these days.

He told the Tribunal that he was working far in excess of 39 hours per week and when he raised this grievance with his manager, known as (B) he was told he could f… off if he did not like it. He then raised his grievance concerning his long working hours with the Labour Relations Commission and the Labour Court and from then onwards his working relationship with the company deteriorated. He gave evidence that in essence his refusal to work beyond 39 hours per week caused his difficulties with the company and he became a villain once he raised these issues.

He accepted that some customers made a number of complaints against him but denied that he acted aggressively towards these customers. He told the Tribunal that he was put under a huge microscope by the company and believed that the evidence given against him was fabricated. He accepted that he had breached company procedures in making a goods delivery but believed that the company had exaggerated the matter. He agreed that the company followed procedures in relation to the investigation/disciplinary process undertaken and he was afforded a right of appeal.

At a resumption on 16 January 2015 the respondent told the Tribunal that PM (who had dealt with the claimant’s appeal) was unavailable, that nothing new arose from the appeal, that evidence had been heard from both sides and that closing statements could now be heard.

The claimant said to the Tribunal that he had questions for PM and had not anticipated PM’s unavailability on the day of resumption of the hearing but that he could not afford the expense of subpoenaing PM himself. The claimant said that he had flown back to Ireland from Lithuania for the hearing. The Tribunal allowed the claimant to call a witness to give evidence.

Giving sworn testimony, JD said that he had accompanied the claimant as a moral support for meeting the respondent and that the claimant had understood that meeting minutes written up for the respondent would be provided to him but that this had not been done.

The respondent’s representative objected that this had not been put to the respondent.

JD said that he could not recall if the claimant had asked for the minutes and added that he (JD) had considered the respondent’s procedures unfair in that, for example, the people who had complained against the claimant were never produced. They were people external to the respondent. The respondent based its case on e-mail.

The respondent’s representative declined to cross-examine JD.

Closing his case, the claimant submitted that the respondent used documentation to produce just a few sentences on a document after a meeting lasting about half an hour and this was done just to make the claimant look bad. The claimant maintained that the disciplinary process against him followed his labour law complaint against the respondent regarding overtime pay whereupon he felt that he had become the respondent’s enemy number one. It was not unusual for a lorry’s load to move but “all of a sudden” he was brought up for a disciplinary hearing and never got evidence of the complaints. He was questioned on each point at two or three disciplinary meetings. In respect of one allegation he said that he had not been on the relevant client site at the time in question. He felt that he had been picked on after the respondent had refused to pay him extra money for extra hours and he felt wronged in that the respondent had expected him to work as much as twelve hours in a day for free. He was not refusing work but he needed pay for overtime. He believed that he had been doing a good job but that the respondent had been going through procedures in a partial way to build a case against him. He was the only one questioned when someone complained. He had wanted PM to look at his appeal with fresh eyes. It could not have been more clear but there was no response.

The claimant was now living in Lithuania but not working. He had been on medication. He had sent CVs but it was awkward that they drove on the other side of the road in Lithuania. He was trying to re-qualify with new qualifications but had not had interview success yet. He was living with his grandparents and looking after them.

Cross-examined about his loss, the claimant said that he had been sick for about three months and had gone back to study for about six months. He had been constantly looking for work. He had done a two-week course which had required attendance every day of those two weeks. He conceded that a lorry driver would only earn about the equivalent of four hundred euro a week in Lithuania where there was a substantial black economy. He was maintaining his grandparents’ home in return for free accommodation. He also had a little money saved.

In a closing statement, the respondent’s representative said that the claimant had been dismissed after particular incidents. Dates were given. The claimant had had an incorrect load. There had been customer complaint of a threat. The claimant had breached health-and-safety. He was guilty of more than one count of gross misconduct. This was put to him. The respondent was not obliged to bring a customer to a disciplinary hearing. The claimant had withdrawn his labour a number of times. He had received written warning and final written warning before being dismissed. Nothing new had arisen at the appeal. The claimant had admitted two of the three charges against him and had been dismissed for his conduct. He had alleged that his dismissal had resulted from his complaining to a labour forum but the matters that caused his dismissal had originated before that. Even if the claimant was found to have been unfairly dismissed he had contributed greatly. Also, he had been unavailable for work during three months of illness and any subsequent compensation had to be reduced to take account of the lower pay rates in Lithuania whither the claimant had relocated rather than striving to mitigate his loss without leaving Ireland.

Determination:

After carefully considering the evidence adduced and submissions made, the Tribunal noted the claimant’s length of service and felt that the respondent had not sufficiently justified its conduct. It was also noted that the claimant had not been able to mitigate his loss any more than he had done. The claimant did try to raise his grievances internally. The Tribunal could not avoid the conclusion that the respondent wanted him out once he chose to assert himself and was prepared to have an issue examined externally if not internally.

It appeared that the claimant had an unblemished record for years. When he got tired of longer hours the respondent found reasons to dismiss him. The Tribunal did not hear enough   reasons from appropriate witnesses to support the claimant’s dismissal. The claimant’s contract said that he was to work thirty-nine hours and that he might be required to do more. The Tribunal took cognisance of the claimant’s point that he could end up working a fifth day for nothing.

The Tribunal acknowledges that it can be awkward to get a customer to give evidence but the claimant denied racist behaviour towards a black man and even denied having been on site at the time of an alleged incident. There was not enough to support the respondent’s allegations against the claimant. The claimant and the claimant’s witness came across as being straightforward and not aggressive. It was felt that once the claimant complained the respondent wanted him out. The claimant was not permitted to cross-examine complainants against him. Witnesses have to be cross-examined.

Regarding post-termination financial loss incurred, the Tribunal is conscious of the points skilfully made on behalf of the respondent at the close of the Tribunal hearing. The claimant did not show that he was available for work for the entirety of the time since his termination. Also, it was contended that average wages would be lower in Lithuania (whither the claimant chose to return) rather than in Ireland. However, in all the circumstances of the case, the Tribunal considers compensation to be the most appropriate redress to award in allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, and deems it just and equitable to order that the respondent pay to the claimant, under the said legislation, the sum of €11,000.00 (eleven thousand euro).

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)