.EMPLOYMENT APPEALS TRIBUNAL
CASE NO
UD562/2015
CLAIM OF:
Kevin Neenan
against
John McCarthy Landscaping Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. K. T. O'Mahony B.L.
Members: Mr J. Hennessy
Ms H. Murphy
heard this claim at Ennis on 29th April and 4th July 2016
Representation:
Claimant : Mr. Niall McDonagh, Niall McDonagh & Co. Solicitors, 22 Rosanore, Gort Road, Ennis, Co. Clare
Respondent : No representation listed
The determination of the Tribunal was as follows:
Dismissal was in dispute in this case.
Summary of Evidence
The claimant commenced employment as landscape maintenance foreman in February 1998 with the respondent, a landscape and grounds contractor. MD and his wife owned the business. The claimant lived around thirty miles away from the base and at his interview he confirmed with MD, that as per the advertisement, he would have a van with the job. He understood that having the van to travel to and from work and in the evenings and weekends was a perk that formed part of his remuneration. He did not receive a written contract of employment at the time. The claimant worked all over Co. Clare, got on well with his employer and enjoyed his work. Due to the recession, he was put on lay-off from November 2011 to February/March 2012.
In early 2012 MD mooted a 10% reduction in the claimant’s pay and a 7% reduction was agreed between them. In March 2012 the claimant received his first written contract of employment from the respondent. This contract changed some of his terms of employment: his use of the company van was confined to travelling to and from work unless otherwise authorised; his use of the mobile phone was confined to company business and he was to be contactable at all times; and, MD reserved the right to put the claimant on lay-off or short time. The claimant went along with the changes.
In late 2012 the respondent was subjected to an inspection by NERA (National Employment Rights Association). As he was the only employee there at the time the owners believed he was responsible for that inspection. The claimant felt that his relationship with his employers changed after this. It was later confirmed that the inspection had been a matter of routine.
Prior to the resumption of work in spring 2015, MD issued a proposed revised contract to the claimant to cover his employment from February 2015 onwards. The proposed changes were unpalatable to the claimant and included inter alia a requirement that his annual leave be taken during the lay-off period (November to February) which the claimant felt was not practical as he has three young children and significantly, he was asked to leave the van at the work premises which meant he could no longer use it to travel to and from work. MD had already asked the claimant in December 2014 about foregoing using the van to travel to and from work and he had indicated that he was not willing to do so. MD complained that in late January and February the claimant would not answer his mobile calls and he could not talk to him.
The parties entered on a protracted course of correspondence between early February 2015 and late April 2015, each party steadfastly holding to his original position, the claimant stating that he “was ready and available to return to work as per original (2012) terms and conditions of work” and that the respondent’s failure to employ him on those terms was a dismissal. On the other hand, MD maintained that due to the difficult economic climate and the lack of funds the business could no longer sustain the cost of supplying him with a van to travel to and from work and that costs had to be cut for the survival of both the business and the claimant’s job security. MD vehemently denied dismissing the claimant. MD indicated to the claimant that he was treating his refusal to work as a resignation. MD also accused the claimant of spending excessive time on the mobile phone during working hours but this was denied by the claimant who had never been issued with any warnings on his mobile phone usage and maintained that there was no reality to the complaint. The claimant’s evidence was that he could not afford a second car to travel to work and it would not be worth it for him to use the family car to drive to work. The claimant felt he was being pushed out. MD’s evidence was that he had lost a government contract to the value of around €7,000 and it was costing him over €3,000 per annum to allow the claimant to use the van to travel to and from work.
In his letter of 29 March 2015, MD informed the claimant that his job was still available and offered to contribute to his travel costs to and from work. In his letter of 13 April 2015, the claimant’s solicitor sought the claimant’s P45 and did not comment on the respondent’s offer to contribute to the claimant’s travel costs. MD informed the claimant’s solicitor that he had registered the claimant’s P45 with ROS on 16 April 2015. MD’s evidence was that he did not want to lose his “most valued and experienced employee” as it would be difficult to replace someone who had been a major part of the business for so long but the claimant would not talk to him and negotiate on the new terms, as he had done in 2012.
In his evidence the claimant told the Tribunal that he was sceptical about the MD’s offer to contribute to his travel costs as he had not topped up his mobile phone as promised and he had also asked him to pay for repairs to the van stating that the damage to it was his fault. In the summer of 2015 the claimant started his own landscaping business.
Determination
Dismissal was in dispute in this case. Having considered the evidence the Tribunal finds that the ending of the employment relationship comes within the definition of dismissal in section 1(b) of the Unfair Dismissal Act, 1977. In that subsection constructive dismissal is defined as:
“(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.
The real issue between the parties was the removal of the company van by the respondent from the claimant as a means of travelling to and from work each day. The respondent maintained this was costing him around €3,000 per year. Yet, he expected the claimant to absorb this cost. The claimant had enjoyed this facility over the sixteen years of his employment with the respondent. At his interview in 1998 the claimant had confirmed that a van went with the job. The Tribunal is satisfied that this was a term of the claimant’s contract of employment, even if it was not contained in the first written contract provided by MD to the claimant in 2012, some fourteen years after the commencement of the employment.
The Tribunal finds that in failing to show for work there was a de facto resignation by the claimant from his employment. The Tribunal finds that in seeking to unilaterally change the terms of the claimant’s contract of employment and in failing to allow him the opportunity to return to work in early 2015 on the terms as enjoyed by him from 2012, and crucially the term as to the particular usage of the van as enjoyed by him since 1998, MD breached the claimant’s contract of employment and the claimant was entitled to resign. However, the Tribunal feels that the termination of the employment relationship might have been avoided had the claimant replied to MD’s efforts to contact him in particular had he replied to MD’s letter of 29 March 2015, although coming late in the stand-off between them, wherein MD offered to make a contribution to his travel costs. For this reason the Tribunal finds that the claimant made some contribution to his dismissal.
In allowing the claim under the Unfair Dismissals Acts, 1977 to 2007 and taking the claimant’s contribution into account, the Tribunal awards the claimant €12,000.00 as compensation under the Acts.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)