EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD613/2015
CLAIM OF:
Gerry O'Connell
-claimant
Against
Sher Chan Limited T/A Brennan International Transport
-respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr P. Hurley
Members: Mr D. Hegarty
Ms H. Henry
heard this claim at Limerick on 27th June 2016
Representation:
_______________
Claimant: Mr Jack Nicolas B.L. instructed by, Mr. Michael Glynn, Michael Glynn & Co., Solicitors, 98 O'Connell Street, Limerick
Respondent: Mr. David Sheehan, David Sheehan & Co, Solicitors, 5 Upper Hartstonge Street, Limerick
Background
Dismissal is in dispute in this case. The respondent is a haulage company, the claimant worked as a driver from April 2012.
Claimant’s Case
The claimant worked as a truck driver for the respondent. The respondent has 15 trucks; 10 curtain sided trucks and 5 fridge trucks. The claimant has arthritis in his shoulder and had a shoulder operation, so from the start of his employment he was only able to drive the fridge truck. Due to his condition he can only load and unload fridge trucks. The respondent was always aware of his condition; he had one of his shoulder operations during his employment.
The claimant had no difficulty in his employment until December 2014. The claimant had made a complaint to NERA in October 2014 and as a result the respondent had to pay bank holidays and issue payslips. Following the complaint “we were constantly bickering at each other.” The respondent constantly threatened the staff if they questioned their employment entitlements saying he could get non- national workers for €60.00 a day.
On the 16th of December the claimant arrived for work to find two trucks being loaded, a fridge and a curtain sided. He was informed by the respondent that he would be driving the curtain sided truck. The claimant refused as he is unable to unload the curtain sided truck and the respondent was aware of this.
The following Friday night, the 19th of December, the respondent texted the claimant to ask him to go to Germany the next morning. Earlier in the week the claimant had been informed that there was no load for him that weekend so he had organised to look after his granddaughter. The claimant had to refuse the trip.
On the 3rd of January 2015 which is the normal time to return to work after Christmas the claimant contacted the respondent asking when his next trip was. The respondent said sorry there is no load for him this weekend. At this stage the claimant was feeling very down and badly treated so he went to his GP. The claimant provided the respondent with a medical certificate from the 9th of January 2015 stating stress as the reason for his absence.
The claimant was aware that the respondent lost a contract but it was for only 3 loads a month and it was because the respondent would not comply with a customer request.
The claimant met with the respondent in March 2015. He asked for his ‘trip sheets’ and payslips so he could reconcile the trips he had yet to be paid for. The respondent refused, saying the trip sheets contained sensitive information. The claimant told the respondent that he only wanted to see what days he had worked. The respondent said he would prefer if the claimant no longer worked for him; the claimant took this as his dismissal. The claimant asked if he would be getting a redundancy payment and the respondent said he would look into it. The claimant disputes being in any way abusive during this meeting.
The respondent reverted with 3 solutions;
not a redundancy payment but a severance payment of €3,500 under a separate agreement
return to work when cleared by the company doctor
resign
The claimant asked for these options in writing but never heard from the respondent again. Approximately one month later on the 1st of April 2015 the claimant requested his P45 as he needed it to find alternative employment.
Respondent’s Case
A witness (CS) for the respondent gave evidence that the March meeting was very heated and that the claimant became abusive. The claimant had no intention of working for the respondent anymore and said “he could not work for someone petty minded”. The respondent said “fine”. According to the witness the claimant and respondent came to some agreement as they could no longer work together and did not want to work together.
The respondent’s accountant (DM) gave evidence of the claimant’s pay rates.
Determination
It is the view of the Tribunal that the respondent did not employ fair procedures in effecting the dismissal of the claimant. In essence the claimant was summarily dismissed. The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the Tribunal find that an award of €3,500 is fair in all the circumstances.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)