UDD1626

FULL RECOMMENDATION

UD/16/32

DETERMINATIONNO.UDD1626

r-159828-ud-15/EH

SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

ERMA FOODSERVICE LTD
(REPRESENTED BY B.J. BEIRNE & CO)

- AND -

PJ FLUSKEY
(REPRESENTED BY TARRANT & TARRANT)

DIVISION :

Chairman: Mr Haugh
Employer Member: Mr Marie
Worker Member: Ms O'Donnell

SUBJECT:
1. Appeal Of Adjudication Officer Recommendation No r-159828-ud-15/EH.

BACKGROUND:

2. The Employer appealed the decision of the Adjudication Officer to the Labour Court on the 28th April 2016 in accordance with Section 9 (1) of the Unfair Dismissals Acts, 1977 to 2015. A Labour Court hearing took place on the 29th September 2016. The following is the determination of the Court:

DETERMINATION:

Background to Appeal

This is an appeal by Erma Foodservice Limited T/A Trade Winds (“the Respondent”) against an Adjudication Officer’s decision, dated 23 March 2016, that upheld Mr PJ Fluskey’s (“the Complainant”) claim of constructive unfair dismissal. The Adjudication Officer awarded the Complainant compensation of €6,500.00. The Respondent’s Notice of Appeal was received by the Court on 28 April 2016. A hearing, at which both parties were represented by solicitors and counsel, took place on 29 September 2016.

Complainant’s Employment History

The Complainant was employed as a driver delivering fast food to the Respondent’s customers between 22 November 2010 and in or around 15 April 2015. He was paid €10.00 per hour plus 0.50c per delivery plus overtime. He was contracted to work 35 hours per week. He worked between 5.00 p.m. and midnight, Wednesday to Sunday inclusive. At the material time, the Respondent also employed a second delivery driver on a part-time basis.

The Respondent provided the Complainant with a company van to carry out the deliveries for the duration of his period of employment save for a 12 or 13-week period in early 2012 when the Complainant voluntarily undertook to use his own personal vehicle to make the deliveries as his part-time colleague was without the use of a vehicle. During that period, the part-time driver availed himself of the company’s van when working and making deliveries and the van was returned to the Complainant when his colleague had completed his hours. The Complainant was paid a daily fuel allowance in return for using his personal vehicle.

The iteration of the Complainant’s written contract of employment submitted to the Court is dated 3 January 2014. That written contract contains the following provision which, in large part, forms the basis for the Respondent’s appeal to this Court:

“In the event of a delivery vehicle being out of use and you are requested to use your personal vehicle, the management will provide you with a fuel allowance to the value of seven euro (€7) per day.”

Mr Ermanno Di Murro, a director of the Respondent company, was the sole witness for the Respondent. He gave evidence of having personally drafted the Complainant’s employment contract. The witness informed the Court that it was his understanding that the contractual clause recited above was to be interpreted as meaning that the Respondent was not obliged to provide the Complainant with a company vehicle to make deliveries and that if asked to do so by the Respondent the Complainant was obliged to make his own vehicle available in return for the stated fuel allowance. The Complainant disputes this interpretation.

The Respondent placed the delivery vehicle habitually used by the Complainant for sale in or around February 2015 without prior notification to the Complainant and advised him that he would have to use his own vehicle from 13 April 2015 forward. The Court heard evidence from both the Complainant and from his step-daughter that she first noticed an advertisement offering the company van for sale on the Done Deal website and then brought this to the Complainant’s attention. The Complainant told the Court that when he asked Mr Di Murro what his intentions were in relation to the replacing the company vehicle, Mr Di Murro told him that he was not in a position to do so at the time and would think about acquiring a replacement vehicle toward the latter end of the year; in the meantime the Complainant would have to use his own vehicle to make the deliveries which (according to Mr Di Murro) he was contractually obliged to do. It is common case that the sale of the van was agreed on 6 April 2015 and was last used by the Complainant on Sunday 12 April 2015. The Complainant was not due to return to work then until the following Wednesday. He told the Court that between the 12^thand 15^thhe called to the office of his insurance brokers (his motor insurance policy was due for renewal in or about that time) to enquire if it would be possible to obtain commercial insurance on his personal vehicle so that he could legitimately use it in the course of his employment. His evidence is that the broker informed him it would not be possible to obtain commercial insurance on his own vehicle. (The Court was informed that the Complainant’s personal vehicle is a 1997 model Toyota). Mr Di Murro, in his evidence, sought to dispute that it was not possible to obtain commercial insurance and submitted that this would have been readily available to the Complainant (for example through Mr Di Murro’s own broker) for a modest extra sum on the Complainant’s annual premium. When pressed by the Court as to whether he had any actual knowledge of whether a person in the Complainant’s circumstances could have taken out commercial insurance on the specific personal vehicle he had at the time and what the premium would in fact be, Mr Di Murro accepted that his submission in this regard was based on nothing but speculation on his part; he had not made any specific enquiry to his broker or to anyone else on the Complainant’s behalf.

The Complainant then went on to recount a conversation he had with Mr Di Murro at the Respondent’s premises on 14 April 2015 during which he informed Mr Di Murro of the outcome of his meeting with his insurance broker. His evidence is that Mr Di Murro referred to the clause cited above in the Complainant’s contract of employment and reminded him that he had an obligation to use his personal vehicle to perform his work. The Complainant also told theCourt that Mr Di Murro proceeded to tell him that if he were stopped at a Garda checkpoint while using his own vehicle for making deliveries he should tell the Garda� that he was on his way home. The Complainant also said that Mr Di Murro instructed him not to wear the hi-viz vest with the Respondent’s company logo on it while using his personal vehicle for deliveries. Mr Di Murro, in evidence, denied giving either instruction to the Complainant.

The Complainant, in the normal course, was due to attend for work at 5.00 p.m. on Wednesday 15 April 2015. He told the Court that Mr Di Murro telephoned him earlier that day and asked him if he would be coming to work that afternoon. The Complainant says he enquired of Mr Di Murro if he would have a vehicle for him to drive, in reply to which he says Mr Di Murro told him that he (the Complainant) knew that he didn’t. The Complainant’s evidence is that he then said to Mr Di Murro that he couldn’t drive for him in the circumstances. He didn’t attend for work that evening or at all thereafter. He did call to the office on the following Friday and collected his outstanding wages. There does not appear to have been any further discussions between the parties in relation to the matter after 17 April 2015 although Mr Di Murro emphatically stated in his evidence that he had told the Complainant on that date that he did not want to lose him as he was a highly valued member of the team and was extremely popular with both colleagues and with customers. The Complainant was subsequently issued with a P45 which somewhat curiously states that the Complainant’s cessation date was 24 April 2015. When pressed by the Court in relation to why this date is given on the P45, Mr Di Murro was unable to offer an explanation.

Counsel for the Respondent submitted that the Complainant was well aware of the manner in which grievances were handled by the Respondent but chose not to avail himself of the opportunity to air his grievance and attempt to find a resolution to the issues that arisen but instead departed his employment with undue haste leaving the Respondent ‘in the lurch’. Mr Di Murro told the Court that he personally had to make the deliveries for a number of days until he was able to hire a replacement for the Complainant. Counsel also put it to the Complainant in cross-examination that he may have been motivated to do so by his personal circumstances and because he could avail himself of significant social welfare payments. The Court has examined the Complainant’s written contract in some detail. It provides as follows: “There is a grievance procedure for all employees. Employees are to address any issues they may have with the manager.” When asked by the Court, Mr Di Murro accepted that no formal grievance procedure had been put in place and that as he operated a small, family-run business he had an open-door policy and employees knew that they could approach him any time if they had an issue.

It is common case that Mr Di Murro prepared a written document sometime after the Complainant advised him that he could not obtain commercial insurance on his vehicle and before 17 April 2015. In that document, Mr Di Murro outlined two alternative proposals for the Complainant which included increases in the delivery commission payable to him by way of increased consideration should he be agreeable to using his own vehicle to make deliveries. It would appear that these were considered and rejected by the Complainant.

A further relevant issue came to light during Mr Di Murro’s cross-examination by counsel for the Complainant. Mr Di Murro confirmed that there was a second company vehicle – a commercial jeep – which had been used by another employee on a number of occasions for deliveries. This vehicle is covered by an open-driving insurance policy. Mr Di Murro told the Court that at no stage did he consider making this vehicle available to the Complainant.

The Court heard detailed evidence from the Complainant in relation to his efforts to mitigate his loss and to update his certification as a professional driver. The Court notes that he has been working on a casual basis since 26 May 2016 for P Boland Ltd in Arklow and is in receipt of €86.00 per day (gross).

Discussion and Decision

In circumstances where a party to an appeal before this Court places considerable weight on its interpretation of an express contractual clause, which interpretation is disputed by the other party, it behoves the Court to consider the clause in question objectively and, if appropriate, where there is ambiguity in the wording of the clause, apply thecontra proferentumrule.

As stated previously, the Respondent herein said that the Complainant was contractually obliged to provide his own personal vehicle to fulfil his deliveries in circumstances where the company-supplied vehicle was not available. The Respondent contends this to be the import of the following clause in the Complainant’s employment contract:

“In the event of a delivery vehicle being out of use and you are requested to use your personal vehicle, the management will provide you with a fuel allowance to the value of seven euro (€7) per day.”

As previously stated, the entire contract, including the above-cited clause – according to Mr Di Murro’s own evidence – was drafted by him and he is seeking to rely on it in his defence of the Complainant’s claim of constructive dismissal, in the circumstances detailed earlier in this determination, against the Respondent. It follows that any ambiguity or imprecision arising from the ‘proferens’’drafting of the clause must be construed in favour of the Complainant. The Court is of the view that, objectively read, the aforementioned clause does not bear the meaning contended for by the Respondent. To refer to a delivery vehicle as being ‘out of use’, on any plain reading, suggest that such a vehicle is ordinarily available and functioning and that its being ‘out of use’ is an exception to that state of affairs. It is a trite observation that something which does not exist cannot be logically described as being ‘out of use’. Furthermore, the verb used in the clause is ‘requested’: there is no reference anywhere in the wording of the clause to the other party to the contract being obliged (to place his own personal vehicle at the service of his employer). For these reasons, and of course having regard to the Complainant’s status as an employee of the Respondent’s, on foot of a contract of service between the parties – a fact not disputed by the Respondent – the Court declines to accept the meaning contended for by the Respondent. It is quite clear to the Court that the only reasonable construction that can be place on the disputed contractual provision is that the parties envisaged that the Respondent would furnish the Complainant with a company vehicle to fulfil his deliveries and that in certain exceptional circumstances when that vehicle was out of commission the Complainant might be asked to voluntarily supply his personal vehicle in return for which he would be compensated by the payment of a fuel allowance in addition to his agreed remuneration. The clause does not apply – nor can it be reasonably construed as applying– to the circumstances that came about in this case.

Likewise, the Court does not accept the argument advanced by counsel for the Respondent to the effect that the Complainant’s resignation was tendered with insufficient notice and in breach of an express term of his employment contract such that the Respondent was left ‘in the lurch’ and suffered considerable financial loss as a result. The Respondent must bear full responsibility for its unilateral decision to sell the company’s delivery vehicle without first making alternative arrangements to ensure that the Complainant was in a position to fulfil the terms of his contract in a lawful and safe manner. In all the circumstances, the Court finds that the Complainant was frustrated in the performance of his contractual duties by the aforementioned unilateral decision of the Respondent. As was noted above, the Respondent does not operate a formal grievance process but grievance issues are dealt with informally via the open-door policy operated by the Director, Mr Di Murro. It is clear that Mr Di Murro was fully apprised of the difficulty the Complainant was placed in as a result of the sale of the company’s vehicle. The Court accepts the Complainant’s evidence in relation to his efforts to enquire about the possibility of obtaining commercial insurance on his personal vehicle. The Court is of the view that the Respondent made insufficient efforts to make alternative arrangements that could have resulted in the Complainant being able to continue in employment. For example, Mr Di Murro confirmed that he did not consider offering to pay the Complainant for the cost of obtaining such insurance cover had it been possible to obtain it. Neither did he consider making the commercial jeep, covered by an open-driving insurance policy, available to him.

In all the circumstances, the Court is of the view that the Complainant did not act unreasonably in terminating his employment in the circumstances in which he found himself through no fault of his own. The Respondent was fully aware of the situation in which it had placed the Complainant and made little or no effort to assist him. In all the circumstances, the Court therefore finds that the Complainant has made out his case of constructive unfair dismissal.

Having regard to the evidence tendered in relation to the Complainant’s losses arising from his constructive dismissal and his efforts to mitigate those losses, the Court determines that the appropriate redress is compensation of €10,000.00. The decision of the Adjudication Officer is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court

Alan Haugh
3rd October 2016______________________
JKDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.