EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD324/2015
MN160/2015
CLAIM(S) OF:
Denis Boyle
- Claimant
against
Dom O Donnell T/A A2B Couriers
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. E. Daly B.L.
Members: Mr. D. Morrison
Ms. A. Moore
heard this claim at Letterkenny on 31st August 2016 and 23rd November 2016
Representation:
Claimant: Ms. Patricia McCallum BL instructed by: Mr Cormac Hartnett, Cormac Hartnett, Solicitors, Gweedore Road, Dungloe, Co Donegal
Respondent: Mr Michael Gillespie, Solicitor, Main Street, Dungloe, Co. Donegal
Background:
The claimant was employed from the 14th of June 2014 until his employment terminated on the 5th of February 2015 as a van / truck driver for the respondent’s courier company.
Dismissal is in dispute.
The claimant claims he was dismissed because of his membership of a trade union and therefore the tribunal has jurisdiction to hear his claim under the Unfair Dismissals Acts, 1977 to 2007 as set out in Section 6 (2) (a) and Section 14 of the Act.
Claimant’s Case:
A former colleague of the claimant (SS) gave evidence. On the 5th of February 2015 he met the respondent in the company office. The respondent asked SS was the claimant pulling his weight, he asked SS was he a member of this trade union and “what was the craic with it?” SS replied he was a not a member of the union. SS told the Tribunal that the respondent seemed displeased with the trade union.
SS left the office and went downstairs where he met the claimant. The claimant had a parcel to deliver and asked SS for directions. SS replied he would go along with him rather than try to give him directions. On route SS told the claimant what the respondent had been saying about him in the office earlier that evening. The claimant’s mobile phone rang, he answered it and it was on loudspeaker. The claimant asked the respondent had he a problem with him. The respondent replied he had “a f*****g problem with him and the union”. He also told the claimant to “pack up your f*****g van and go home”. The claimant drove the van back to the yard where the Office Administrator (FD) was waiting for them. SS said he observed the claimant handing the keys of the van to FD but he could not hear their conversation. SS told the tribunal that this was quite late in the evening, after 8p.m. FD would have had to return to the yard to collect the keys as she finished work at 6p.m. They left the yard.
The following day, the 6th of February 2015, the claimant met SS and gave him €370 saying the respondent had told him to give him the money as he, SS, was owed it for mobile phone bills. SS explained to the Tribunal that he had given this €370 to the claimant the previous day to bring back to the office for him as the claimant would have been back there before him. The money was owed to a customer of the respondent. The claimant had explained to SS when he had handed him back the money that he had forgotten he had the money on him and had gone home with it in his pocket by mistake. The claimant said he had told the respondent who told him to give it to SS.
On cross-examination SS explained, when asked, that he had left the respondent’s employment the day after the claimant but it had been for a very different reason to that of the claimant. He refuted he had left to setup his own business with the claimant.
When asked, SS explained the €370 that the claimant gave him was in part payment for mobile phone fees he had incurred on behalf of the respondent over a period of six months. He further explained that he used his personal mobile phone more often than the company phone provided as there were problems with coverage when on deliveries within Northern Ireland.
The claimant gave evidence. He commenced employment initially as a van driver for the respondent on the 14th of June 2014. He had no contract of employment. The respondent informed him his hours of work would be nine to six daily but he often worked longer hours. By September/October he was working twelve hours per day.
The business expanded, trucks were purchased and the claimant began driving one as he had a valid licence. Taco-graphs were in use but the claimant told the tribunal that the respondent would destroy them even though the claimant told him they had to be kept for at least 21 days. The claimant began keeping his own records.
In October/November 2014 the claimant attended CPC course for drivers. While there he spoke to one of the instructors about his job with the respondent. The instructor advised him he ran the risk of being caught by the RSA, advised him to keep his own records and join a trade union. By Christmas the claimant had joined SIPTU and paid his union dues himself. He did not inform the respondent as he felt he did not need to.
In January 2015 a new Transport Manager was hired. The claimant met her on one occasion when she and the respondent handed him a contract of employment. (This contract was opened to the Tribunal). On looking at its contents the claimant was not happy. It appeared drivers would be liable for things that should be covered by the company’s insurance. The respondent wanted him to sign it but the claimant told him that he wanted his union to look over it. The respondent became very angry saying no one was in a union and if there was to be a union involved he would decide which one it would be. The respondent told him to think about it. The claimant did not sign the contract. The claimant continued to work long hours.
On the 4th of February 2015 the respondent asked the claimant had he signed the contract of employment. The claimant advised him that his union had advised there should be some changes made to it. The respondent replied “the contract is the contract” and told him that he, the claimant, would have to sign the contract or go. The claimant said he would speak to his union. The respondent again said “the contract is the contract” and “there is no point talking to the union.”
On the 5th of February 2015 the claimant was training a new driver (P). The claimant told the tribunal that when he asked the respondent what vehicle P would be driving the respondent replied he would have to think about it. During the day P transferred to work on SS’s van but they all met later in a tile retailer’s premises to pick up their orders. While there the respondent rang SS to ask if they had left the premises yet. SS replied no. The respondent contacted the claimant and reprimanded him for not leaving yet. The claimant told him that it was too much work and he needed help. Another colleague SOD was sent to assist him.
By 8p.m. the claimant still had one delivery to make but was unsure of the exact location. While at the yard he asked SS who said he would go with him rather than explain how to get there. SOD did not go with them. SS told the claimant about a conversation the respondent had had with him earlier about the claimant and the union and that he was not happy. At this point the claimant’s mobile phone rang and he answered it, it was on loudspeaker. It was the respondent. The claimant, knowing the respondent had been talking about him, asked had he something to say to him and if he had to say it to his face. The respondent replied “I do have a f*****g problem with you and the union, pack up that f*****g van and go home.” The claimant and SS returned to the yard where FD was waiting. The claimant handed over the keys of the van and went home. It was around 9p.m.
Around a half hour later the claimant texted the respondent as he thought the respondent would have calmed down by then. The respondent said he didn’t want the union to ruin his business and if he, the claimant, did not leave it he, the respondent, would have to let him go. The respondent said the other employees would not sign their contracts because of the claimant. The claimant replied that if that was what he wanted he wanted his P45.
The claimant told the Tribunal that at this stage he realised he still had a sum of €370 his colleague SS had given him earlier to bring back to the office as the claimant would be back there before him. He rang the respondent to tell him about the money he had forgotten to give to FD in the office. The respondent told him to give it to SS as he owed him money for mobile phone bills SS had incurred on behalf of the company. The claimant gave the €370 to SS the following day and told him the respondent had asked him to do so.
On the 6th of February 2015 the claimant drove to the yard. The respondent rang him saying could he meet him as he had his P45 and payslip. They met and the respondent handed over the documents. He then asked for the €370 but the claimant reminded him that he, the respondent, had told him to give it to SS for bills incurred. The respondent then left. The claimant had no further contact with him.
The claimant explained that he had failed part of his CPC course while working for the respondent. It we rescheduled for March 2015. When he went to sit the exam he was informed the respondent had cancelled it. The claimant re-paid and re-sat the exam in June 2015.
The claimant gave detailed evidence of his efforts to mitigate his loss of earnings.
On cross-examination he refuted he had left his job of his own accord, he had no job to go to and bills to pay. He stated that the reason the respondent had sacked him was because he was a member of a trade union.
He did agree that he had been annoyed when the respondent had hired a new Transport Manager as the respondent had told him the position was to be his when he passed his exams. However, it was up to the respondent who he hired and by law he was required to have a Transport Manager. He told the Tribunal that he had had no issues with the Transport Manager, he had only met her on one occasion as they worked different hours.
The claimant’s wife gave evidence to the Tribunal in respect of being present and hearing the second phone conversation between the claimant and the respondent and told the Tribunal that she was left with the impression that the respondent would not have dismissed the claimant had he decided to quit the union.
Both the claimant and his wife told the Tribunal that the claimant’s wages and any holiday pay due to him was paid into his account by 22:30 on 5th February 2015 (the same evening as his employment terminated at about 20:30). However the respondent disputed this saying that the money was not paid in until 6th February 2015. This prompted the Tribunal to seek confirmation of the time and date of the transaction from both the claimant and the respondent and the Tribunal allowed the parties time to supply this information. Both parties subsequently provided information to the Tribunal. A statement and printout from the respondent’s bank showed that there was a cash transfer to the claimant’s account at 22:09 on 5th February 2015. It was common case that this payment represented wages and holiday pay but did not include payment for minimum notice.
Respondent’s case:
It was the respondent’s position that the claimant left of his own accord. There were two conversations on the phone between the respondent and the claimant after 20:30 on 5th February 2015 but the respondent told the Tribunal that he never mentioned anything about the claimant being a member of a trade union and did not dismiss the claimant. The claimant was unhappy about not being appointed transport manager and was making it difficult for the person who had been appointed to that position. The claimant had sat exams to become certified for the job of Transport Manager but the respondent was aware that he had failed those exams and although he had promised the job to the claimant he needed to fill the post with an appropriately certified person before the claimant could re-sit the exams.
There had been a delay in deliveries being made by the claimant on 5th February 2015 which prompted the respondent to phone the claimant. The respondent asked the claimant was he going to complete the deliveries and the claimant said no because the respondent had been bad mouthing him. The respondent took this to be in relation to a conversation he had with SS earlier in the day whereby the respondent spoke to SS, as SS was a supervisor, in relation to whether things could be done better but he denied that the subject of trade union membership arose.
The claimant did in fact finish the deliveries that evening but when the respondent received a text from him requesting his P45 he took this to mean the claimant had resigned.
The respondent told the Tribunal that another employee was a member of a trade union and that he had had meeting with the union in relation to that employee, however this was long after the claimant’s employment had terminated.
Determination:
The Tribunal carefully considered the evidence both oral and documentary adduced at the hearing.
There was a clear conflict of evidence between the parties. On the one hand the claimant stated that he was dismissed solely because he was a member of a Trade Union. On the other hand the respondent stated that he never dismissed the claimant but that the claimant resigned of his own volition.
On the balance of probabilities and given all the circumstances of this case, in particular the fact that the bank statement supports the claimants version of events, namely that the respondent lodged the claimant’s wages plus holiday pay due to him at 22:09 on the same evening and not the following day, as the respondent said in evidence, the Tribunal prefers the evidence of the claimant.
The Tribunal is satisfied that the claimant was dismissed because he was a member of a trade union and finds that compensation is the appropriate remedy. Accordingly the Tribunal awards the claimant €12,805.00 under the Unfair Dismissals Acts, 1977 to 2007.
In regard to the claim for Minimum Notice it was common case that the claimant was dismissed without notice or payment in lieu thereof. Therefore the Tribunal also awards the claimant €492.50 under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)