EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1070/2014
TE85/2014
APPEAL(S) OF:
Zoltan Fuzesi -appellant
against the recommendation of the Rights Commissioner in the case of:
K Connolly Transport Limited -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACT 1994 TO 2014
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Horan
Ms. S. Kelly
heard this appeal at Carlow on 13th October 2016 and 6th January 2017
Representation:
Appellant: In person
Respondent: Mr. Brian Dolan, Peninsula Business Services (Ireland) Ltd.,
Unit 3, Block S, East Point Business Park, Dublin 3
Background:
This appeal came before the Tribunal by way of an employee (appellant) appealing against a Rights Commissioner Decision under the Unfair Dismissals Acts and under the Terms of Employment (Information) Acts (references: r-140897-ud-13 and r-133097-te-13).
Summary of evidence:
The correct name of the employer differed from that stated on the Rights Commissioner’s Decision. The respondent consented to an amendment being made to the correct entity.
The claim before the Tribunal was one of constructive dismissal. Accordingly it fell to the appellant to make his case.
Appellant’s Case:
A Hungarian translator was present for the hearing. It was the appellant’s evidence that he commenced his employment with the respondent company in 2008 and the employment was without issue until 2012.
During the latter part of 2012 a NERA inspection took place. The appellant noticed that his salary changed. The appellant made enquiries in the respondent’s office about the change to his salary but he was ignored for three weeks. A director of the company (LK) confronted the appellant and asked him why he had contacted NERA instead of raising his issues with the office. The appellant told LK that he had not contacted NERA nor did he know anything about the inspection.
From that time everything changed for him in the workplace. He believed the office staff told the Irish employees of the company that it was because of him that the wages had changed. The appellant stated that the company wanted him out of the company from that time as it believed he had brought the NERA inspection on the company. His employment had been uneventful prior to that inspection. From the time of the inspection the company was watching him for mistakes.
The appellant stated that he had two contracts of employment one from the date he commenced employment and the other from 6 July 2013. He did not sign and return the latter one as it stated that he was a national and international driver with a daily rate of €108. He stated that his daily rate was initially €120/€130 per day although he only got this for the first few weeks. Following the NERA inspection his rate of pay reduced. Prior to the NERA inspection the appellant was home every second day but after this inspection he would depart home on Monday and not return until Friday to his home.
The appellant spoke of a number of historical matters from 2010 relating to Road Safety Authority guidelines. The appellant stated that he had been sent to work in breach of those guidelines. The appellant stated that on two occasions in April 2010 he was asked to work a day shift immediately after working a night shift. The result being that he drove 1,000 kilometres in 24 hours. He raised the matter with the company but was told that he must carry out the work. It was the appellant’s evidence that on other occasions in May, July and November 2010 the same issue arose. He then began to keep driving records and rest times in a diary with the corresponding payslip.
The appellant was emailed by LK of the company on the 9th April 2013 and asked to attend a meeting in relation to his timesheets for the previous week. The appellant stated that he only had a paper tachograph and was instructed by the company to insert “rest” on the tachograph when he was not driving. He stated that when he was driving and working he entered this as working time; if he had entered it as a rest period he would not receive payment for it. This is where the issue of extra driving time arose. The appellant stated that the message received in the lorry told drivers to only use driving or rest time and that the company did not want to see work time showing.
The appellant gave evidence that he did not want to overload the trailer or work extra hours. He knew that some of the trailers were overloaded from the paperwork that accompanied the trailers. On one such occasion when going to pick up an overloaded trailer he raised the matter with the company. He raised the matter with the Transport Manager and also told him that he would not drive extra hours.
The appellant gave an example of an incident where the Transport Manager asked hint to help out another driver whose lorry had broken down. The appellant outlined to him that to undertake this work would mean that he would not have a 9 hour rest period before carrying out his work in the morning. The Transport Manager instructed him to carry out the work but that he would sign the tachograph about the reduced rest period. The appellant did not believe this could be done even in exceptional circumstances.
The appellant also stated that he was provided with a magnet by the Transport Manager and told to use it. The purpose of the magnet was to slow down the speedometer so that it would not register whether the truck was moving or not. The appellant stated that he used the magnet on a number of occasions but only on site. The reason he only drove on the site was because he could not drive more that 10 miles per hours with the magnet on the particular lorry that he drove.
The appellant outlined a further issue that arose. He stated that drivers were usually asked whether they wished to drive in Europe or not. It was the appellant’s preference to drive within Ireland as he had a young family. The appellant was instructed by a message to work in the UK on the 30th June 2013. The appellant had not worked or travelled to this country before and he tried to contact the Transport Manager through telephone calls and emails but to no avail. He also attempted to make contact through the office and with KC of the company. Ultimately, he emailed the company saying he would not be attending for work in the UK. The appellant was subsequently asked to attend a meeting with the company regarding this refusal but was not sanctioned on that occasion.
A further issue arose in June 2013 when the appellant understood that the company was not in a position to provide him with work having received a message that there were 8/9 trucks parked up. As a result the appellant believed he was not being provided with work. He undertook some gardening and consumed two cans of alcohol while doing so. He later discovered that the Transport Manager had been attempting to contact him with an offer of work.
The appellant was invited to a disciplinary meeting on the 6th June 2013 in relation to the above issue. The meeting was attended by the Transport Manager. The appellant stated that he did not feel it was fair he was subjected to a disciplinary process when he had not been informed to be on standby for work. He understood from what had been said to him that there would be no work that day. The appellant received a warning which he appealed by letter dated 12th July 2013 to the Transport Manager but he did not receive a response to this request.
The appellant also had an issue in relation to a Family Income Supplement (FIS). The relevant section had been informed he did not work enough hours to qualify for this payment. They asked the appellant to prove that he worked 19 hours per week. He contacted the office of the company in relation to this. It was the appellant’s evidence that the office staff picked the only week that he had not worked 19 hours. He asked the company to provide a note showing a two week period where he worked more than 19 hours per week but he never received this. The appellant did not receive the FIS payment for a number of months as a result.
It was the appellant’s evidence that he played this “strange game” with the company for ten months and he became stressed and had difficulty sleeping. He attended his doctor who told him that he was in a stressful situation and that he would not get any better while he remained in it. The appellant resigned from his employment on the 23rd July 2013. The appellant gave evidence of his financial loss since resigning from the employment. He found it difficult to secure new employment without a reference. He decided to undertake a course of study from September 2014.
In relation to letters sent to him by the company after he had tendered his resignation he stated that he was on sick leave and had taken holidays to Hungary. He was certain that the company would have been aware that he was on holidays as he had applied for the time before his resignation. He did not try to contact the company on his return.
In reply to questions from the Tribunal, the appellant stated that he had raised his discontent with the Transport Manager during his employment but received a response to the effect that all employees were treated the same.
Respondent’s Case:
LK, who was a company director at the time, gave evidence that the NERA inspection in 2012 examined the working time and sample payslips of drivers. The inspection found that the drivers’ timesheets were “loose” and the sheets needed to identify break/rest and working time in order for the company to be fully complicit. The change to wages came about as a result of this inspection as it was discovered that there was an underpayment to Revenue due to the breakdown of basic pay and subsistence. LK refuted that she had confronted the appellant about causing the inspection.
In relation to the notes kept by the appellant LK noted that they did not contain times or tachographs. The company has a duty of care to employees and other road users. If there were breaches by the company in this regard they would come to light through an audit carried out on an annual basis by the Road Safety Authority. The company can also be subjected to spot checks in the intervening period. Up to 90% of the company’s work is in the UK and the rules and regulations in that jurisdiction are very strict.
The company had updated its fleet from analog to digital tachographs by April 2013. This change allowed information to be relayed immediately but it was a learning period for everyone in the company while the transition as made. An email from April 2013 was opened to the Tribunal from LK to the appellant. The change to the tachograph had previously been discussed with drivers. The appellant had only entered a 45 minute break on that occasion. LK addressed the matter with the appellant but did not feel that there was a need to sanction the appellant at the time as it was a new system.
LK was aware that one driver had used a magnet but had been dismissed by the company for this reason. Another driver was also found with a magnet and was prosecuted for using it. The company would never allow employees to use a magnet as it damages the vehicle. The advantage to a driver of using the magnet is that they would arrive home earlier.
All drivers in the company carried out national and international driving duties. However, the appellant did not usually drive in the UK. The company tries to accommodate drivers with families with national driving. However the summer months were a quiet time for the company’s business in Ireland and as a result the company would take on other work in the UK during those months. When the appellant refused to carry out the UK work he was provided with a letter of concern but he was not sanctioned in relation to it. LK was not in the company at that time but had she been she would have issued the appellant with a disciplinary sanction in relation to this issue. In reply to questions from the Tribunal LK stated that the appellant should have informed the company before he consumed alcohol. She confirmed he was not paid standby money for the day in question.
In relation to the form completed for the purposes of the FIS payment, LK stated that the form clearly states that 38 hours must be worked over a two-week period. When the appellant submitted the form to her he was on illness benefit.
Following the appellant’s resignation LK wrote to the appellant offering him the option of availing of the company’s grievance procedures but she did not receive a response. LK stated that she was unaware that the appellant was taking holidays in Hungary at that time. She subsequently calculated his holiday pay and forwarded it to him with his P45.
The Transport Manager gave evidence regarding the signing of the tachograph for the reduced rest period. He recalled that there was an emergency of some description on that day. It was permissible for the company to sign the tachograph to show it was aware of the driver’s infringement of the rest times.
On the day in June 2013 he told the appellant by text message that there were a number of lorries parked up in the yard but work levels can change quickly. He subsequently sent the appellant a text message with an offer of work. He believed the appellant had ignored this message and that it was unreasonable of him to do so.
The Transport Manager stated that it was of no benefit to him or the company if a driver users a magnet to drive around the yard and he refuted that he had provided the appellant with a magnet.
The company’s procedures state that if an employee is unhappy with the outcome of a disciplinary matter they can come to him as Transport Manager. He was present at the disciplinary meeting with the appellant and had considered the issues and believed that the process was fair to the appellant.
Determination:
This matter came on for hearing before the Tribunal by way of a claim for constructive dismissal. Accordingly, the onus was on the appellant to satisfy the Tribunal that he had been left with no reasonable option but to resign his employment.
During the course of a lengthy hearing the appellant sought to introduce certain historic matters (which were in dispute) in evidence however, his essential claim rested of what occurred following a NERA inspection which occurred in late 2012.
The Tribunal has considered the evidence at length and finds that the appellant has failed to meet the onus of satisfying the Tribunal that it was reasonable for him to resign his employment. The Tribunal from the evidence heard could not conclude that the appellant was selected for victimisation or treated any different than other employees within the respondent company. It seems to the Tribunal that the appellant was required to comply with the terms of his contract of Employment and to comply with all regulations relevant to his work.
The Tribunal does accept that the appellant appears to genuinely believe that he was been selected for mistreatment however, there are no objective grounds to support this view and, indeed, the respondent seems to have done no more that comply with its own legal obligations.
Indeed, it is the Tribunal’s view that the respondent sought on a number of occasions to engage constructively with the appellant around his employment and, indeed, showed some latitude in their dealings with the appellant.
It is not for the Tribunal to reinvestigate or to rerun a disciplinary procedures and, while the grounds for issuing of a written warning on the 3rd July 2013 were somewhat debatable, the issuing of such a warning was, nevertheless, one of the actions that a reasonable employer might have carried out.
There was no evidence before the Tribunal to support the position taken by the appellant when he ultimately resigned his employment. He had not exhausted the grievance procedure available to him nor had he entertained the respondent’s requests that he reconsider his position around resignation.
Accordingly, the Tribunal dismisses the appellant’s claim under the Unfair Dismissals Acts, 1977 to 2007. Thus the Tribunal upholds the Rights Commissioner Decision in this regard.
The Tribunal dismisses the appeal under the Terms of Employment (Information) Acts as insufficient evidence was adduced in relation to this claim. Thus the Tribunal upholds the Rights Commissioner Decision reference: r-133097-te-13.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)