EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD521/2014
MN225/2014
WT80/2014
CLAIM(S) OF:
Derek Dunne (claimant)
Against
Noel Malone International Haulage Limited (respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms J. McGovern B.L.
Members: Mr R. Murphy
Mr C. Ryan
heard this claim at Dublin on 16th June 2015
Representation:
Claimant(s) : In person
Respondent(s) : Mr. John Kelleher, John F Kelleher, Solicitor, 4/5 St Mary's Terrace, Dunboyne, Co Meath
The determination of the Tribunal was as follows:
Summary of evidence
The respondent operates a haulage company. The claimant commenced employment with the respondent in August 2005 and worked as a driver on international routes. The claimant told the Tribunal that in or about 27 September 2013 the respondent spoke with him in person and stated that the respondent would only be doing domestic routes in the future and this would be the only work available for the claimant should he want it. The claimant refused the domestic work as he preferred, and was contracted for, international routes. He therefore ceased working with the respondent as of the 27 September 2013 and commenced new employment in a different company one week later. Within two weeks of commencing his new employment, the claimant observed one of the respondent’s trucks on an international route and he was quite dissatisfied with this. The claimant believes that the director of the respondent company was not truthful in relation to the existence of international routes in the future and feels he was unfairly dismissed. According to the claimant, he did not receive his public holiday entitlement during course of his employment with the respondent nor did he receive his minimum notice.
Under cross-examination, the claimant denied that he had received a day in lieu of each public holiday. In reply to the Tribunal the claimant stated the respondent had between two to four trucks on the international route and he was the longest serving driver. The claimant denied he had handed in his resignation, he assumed he was let go, and also denied that he had approached the respondent to say he had a job elsewhere.
The respondent told the Tribunal that he believed the claimant resigned his position, albeit on friendly terms between them. According to Mr. M, the claimant no longer wished to work for his company and wanted to work with company D, which had newer trucks on the road. It was a ‘gentleman’s agreement’ and they shook hands on it. He did not state to the claimant that there would be no international routes in the future but rather there would be reduced routes. He confirmed that he retained drivers for the international routes. Mr. M stated that the claimant was given a day in lieu for his public holiday entitlements plus the claimant was paid enough wages to cover public holiday entitlements. The claimant’s representative submitted that the claimant was not entitled to minimum notice as he left of his own accord.
Determination
The Tribunal carefully considered the evidence given by both parties and having heard same we believe this to be a claim for constructive dismissal. The claimant’s evidence was that he had to leave his job as there would be no more international routes available to him. This is disputed by the respondent who states that the claimant resigned his position. In a claim for constructive dismissal the burden of proof rests on the claimant to show that he had no choice but to leave his position with the respondent. He must show the Tribunal that his resignation was not voluntary and that the conduct of his employer was so unreasonable that he had no choice but to resign. Furthermore, it is incumbent on any employee to utilise and exhaust all internal remedies made available to him unless he can show that the said remedies are unfair. Unfortunately, the Tribunal feels that the claimant did not discharge the burden of proof in this case. It is clear from the evidence that the claimant voluntarily resigned his position and took up alternative paid employment within a week.
In the circumstances the Tribunal is unanimous in finding that the claimant did not discharge the onus of proof placed upon him to establish a case for constructive dismissal. The claim under the Unfair Dismissals Acts, 1977 to 2007, fails. Accordingly, the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, must fail. Finally, no satisfactory evidence was proffered by the claimant in relation to his claim pursuant to the Organisation of Working Time Act, 1997 therefore this claim fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN