EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD503/2013
APPEAL(S) OF:
K. Connolly Transport Limited -appellant
against the recommendation of the Rights Commissioner in the case of:
Morgan Prendergast -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Browne
Ms S. Kelly
heard this appeal at Carlow on 28th September 2016 and 12th January 2017
and 13th January 2017 and 23rd February 2017
Representation:
Appellant: Peninsula Business Services (Ireland) Limited, Unit 3
Ground Floor, Block S, East Point Business Park, Dublin 3
Respondent: Ms Andrea Cleere, SIPTU, Liberty Hall, Dublin 1
Background:
This appeal came before the Tribunal by way of an employer (the appellant) appealing against a Rights Commissioner Decision under the Unfair Dismissal Acts, 1977 to 2007 (reference: r-129254-ud-12/JT).
The appellant company consented to an amendment of the name from that stated on the Rights Commissioner Decision.
The employee was claiming constructive dismissal. Accordingly, it fell to the employee to make his case.
Summary of employee’s case:
The employee tendered his resignation on the 19th December 2012. He gave evidence of a number of issues during his employment.
From February 2009 he was subjected to a 10% pay cut but he was not consulted in relation to the pay cut; he simply received a note stating that the pay cut would take effect the following week.
The employee stated that the safety boots were required for a client site. He requested a pair of these boots from the Transport Manager who in turn referred him to the Managing Director. The Managing Director told the employee that if he wanted boots he could go to a job that supplied them. He was also told to purchase his own safety boots or clean out his truck. The Managing Director was aggressive towards him and the employee felt he had no choice but to buy his own safety boots or leave the employment. However, subsequently the Managing Director contacted him and said the company would provide him with the safety boots. Following this issue the employee was “left at home” for a number of days and he felt that he was being punished. He was also informed by the Managing Director that because of this request the employees would be forced to wear a uniform which they would have to pay for themselves.
In April 2012 the employee became ill. He was working in the midlands when he was forced to contact the Managing Director and inform him that he was unwell. He was told by the Managing Director to leave the lorry where it was and make his own way home. The employee subsequently attended a physician in the midlands. Later a company van was driven to his location. The employee drove himself home, arriving home at 10pm that night.
The employee drove the same vehicle until there was an issue with the taxation of the vehicle in June 2012. The lorry was taken off the road having been stopped by the authorities for out of date tax. As a result the employee had to change vehicle. When he attended for work one day he noticed that there was a missing light cable for connecting the lights to the trailer. He contacted the Managing Director about this issue enquiring if the matter could be rectified for the following day but this work was not carried out. The employee was asked to move between vehicles around this time and he felt this was to make his working life more difficult. He raised this matter with the Managing Director on one occasion in the office. The Managing Director told him “things are going to get a lot worse”.
The employee attended for work on 9th July 2012. The trailer was not connected to the lorry that he was to drive. In addition the cab area was filthy from the previous driver. The employee cleaned the lorry as he would need to sleep in it. When he was finished he left the bag of rubbish beside the lorry and forgot to place it in the bin as he was trying to resolve the issue with the lights on the trailer. He later concluded that it was the lorry cab rather than the trailer that had caused the issue. This took some time and the employee attempted to contact the Managing Director to inform him that he did not think he would make the ferry in time. However, he was unable to contact the Managing Director. The employee went home and heard nothing further from the company that day nor did he receive work from the company the following day.
On Tuesday, the employee attended at the office and asked to speak with the Managing Director who ignored him and walked past him. He then turned and spoke to the employee and accused him of leaving rubbish in the company’s yard. He also raised the issue with the employee that he had not travelled to the UK nor made contact in relation to this issue.
On Wednesday, the employee again did not receive work from the company. He attended for work after 8am but neither the Managing Director nor the Transport Manager were present. He contacted them to let them know he was available for work.
The employee was provided with work on Friday of that week. He was forced to put in for annual leave for the other days as his wages had been so significantly impacted. During cross-examination the employee refuted that he had been left at work due to a lack of work. He stated that the company was very busy.
The employee outlined another issue on the 27th July when he queried his holiday pay by email. He had noticed that he had not been paid for three days holidays. Within 30 minutes of that email his work was changed from Irish work to UK work. The employee was unable to fulfil this instruction due to a pre-arranged appointment. He asked for work within Ireland instead but did not receive a response.
On the 31st July 2012 two registered letters arrived to the employee’s home. The employee had been issued with two written warnings from the company. One was in relation to dumping rubbish and the other was for leaving the workplace and absenteeism on the 9th July 2012. The employee did not have any advance warning of these letters or the sanction being applied to him. He was not provided with a right of appeal. The employee was shocked. He had a clean disciplinary record up until that time.
The employee stated that his working relationship had deteriorated from the time that he had queried a tax certificate for a vehicle with KC. Any time thereafter that the employee queried anything or had a problem he would be left at home without work. The employee gave evidence of how this affected his physical well-being and the difficulty caused by not receiving a full week’s wages. Prior to these issues he had received full-time work. The employee stated that if he tried to telephone or the Transport Manager he would not receive an answer. He received his work instructions via text message.
The employee stated that he felt falsely accused by the warnings that he had received and he wished to contest them to show that he did not agree with them. He wrote to the company setting out his position in letters dated 19th August 2012. These were opened to the Tribunal. Following receipt of the warnings the employee became ill. He attended his doctor and was diagnosed with work-related stress. He felt that he was being put in a position with the company that whatever he did was wrong and that he was “being set up for a fall.” The employee submitted a medical certificate to the Transport Manager.
The employee received a letter of response from the company dated 3rd August 2012 the contents of which caused him stress and worry. He wrote two letters in response on the 19th August 2012, one to the Transport Manager and one to the Managing Director. He felt that the company were trying to “get rid” of him. By this time he was not being spoken to and he was receiving instructions via text message.
The employee received letter dated 22nd August 2012 from the company which informed him that the company felt the most appropriate way to address the issues raised in his letter of the 19th August 2012 was through the grievance procedure. An independent HR company was to conduct the process.
The employee gave evidence of a number of issues that arose in the latter part of August and September regarding his employment. In early September 2012 he received a text message to travel to the UK on Sunday, 9th September 2012. The employee never had to book a Sunday off as it was always one of his days off. He informed management of the company that he would be unable to carry out the work allocated as had tickets bought for a sporting event. The employee received correspondence dated 11th September 2012 from the company outlining that his absence from work on was an unauthorised absence. The employee was informed that he could face disciplinary action if the absence was not due to sick leave. The employee attended his doctor and was absent from work from the 14th September 2012.
Subsequently, the employee met with the independent HR company’s representatives on the 5th October 2012 as part of the grievance procedure. The employee was provided with a transcript of the meeting and understood the next step was that the HR representatives would meet with his employer. However, by December 2012 a transcript of any such meeting had not been received by the employee despite requests having been made by his union representative. During cross-examination it was put to the employee that Graphite had met with KC, LC and the Transport Manager. The employee stated he had no knowledge of that.
The employee subsequently resigned on the 19th December 2012. The employee gave evidence of his financial loss and efforts to mitigate that loss since his resignation. A few days after submitting his resignation the company wrote stating that they were awaiting the outcome of the findings of the independent HR company.
The employee in this case had issued a witness subpoena to the two representatives from the HR company. Ms. G of that company gave evidence that she was contacted by the company in September 2012 in relation to a grievance it had received from one of its employees.
Ms G gave evidence that she and her colleague understood that the pricess they were conducting was in relation to a grievance rather than an appeal by the employee to disciplinary sanctions.
Ms G and her colleague met with the employee in October 2012 and subsequently provided him with a transcript of his statement which he signed. A copy of the statement was provided to the Managing Director of the company. Ms. G and her colleague hoped to meet with the Managing Director, the Transport Manager and LC of the company at the end of October. The meetings were postponed to the 2nd November but did not go ahead on that date either. The company did not understand the meeting to have been confirmed. In any event the meeting was rescheduled for the 11th December. Ms. G and her colleague transcribed the minutes and sent them to the company on the 18th December. Despite requests for them to be signed and returned during December and January they were not returned. Their report into the matter could not be concluded as a result.
Summary of employer’s case:
The Transport Manager gave evidence that a pay cut of 10% was implemented across the board for all employees. Employees were required to work at weekends from time to time. As drivers worked in the UK they would often be required to “fairly consistently” travel on a Sunday.
It was his evidence that safety boots were provided to employees on request. He refuted that the employee would have been told to make his own way home when he was ill. The company would not just leave its vehicle in the midlands but would send a driver from the yard depot to the location.
The witness issued the employee with the written warning for dumping rubbish in the yard after the matter had been reported to him. He could not recall who had reported the matter to him nor did he query what they told him. He stated that he also issued the employee with the second warning. This incident had resulted in a loss of revenue to the company.
He could not recall specifically whether or not the employee had not received work on the 10th, 11th and 12th July but he did recall that the company had “quiet” days at that time.
The Transport Manager could not recall whether or not he had met with Ms. G regarding the grievance procedure.
During cross-examination the Transport Manager stated that he would not have been au fait with the company’s disciplinary policy despite it being his role at that time to discipline drivers. He accepted that he should have been more familiar with the disciplinary policy. He did not know why the letters written to the employee were from different entities.
It was put to the witness that the employee had sought to contest and appeal the warnings that he had been issued with. The Transport Manager stated that he was aware the employee did not agree with the warnings but he probably did not realise it was open to the employee to appeal them. He stated that he was not familiar with the company’s grievance procedure.
The Managing Director of the company gave evidence that he issued the second warning to the employee in relation to the incident on the 9th July 2012. Prior to this he had instructed the Transport Manager to issue the employee with the first written warning. He stated that he was very disgusted about rubbish being dumped in the company’s yard. He had viewed the CCTV and saw the bag of rubbish being thrown from the lorry. He asked the Transport Manager to issue a warning to the employee but there was a delay of three weeks in issuing the warning to the employee.
In relation to the incident on the 9th July 2012 he stated that the company required an empty trailer in the UK and the employee agreed to do this. The Managing Director prepared the vehicle himself on the Sunday night but when he arrived in to the yard the next day both the lorry and trailer were still in the yard. The company had to wait to the next ferry sailing to get the trailer to the UK with another driver. If the employee had no work that week it was because the work he was to carry out was associated with that vehicle. During cross-examination he confirmed that his telephone number appeared on the employee’s phone records for the 9th July 2012 but he noted that the call time was only a number of seconds and he queried this. He could not recollect whether or not he knew on that date that the employee was attempting to contact him.
In relation to the employee’s work being changed when he queried his holiday pay, the Managing Director stated that the company’s business is international in nature and that jobs can change. It was coincidental that the employee’s work was changed to the UK the same day he raised a query.
The company issues its employees with PPE clothing and footwear as needed and as part of that the employee would have received safety boots. He thought the request from the employee was in relation to a second pair, they had a discussion about the issue but ultimately the employee was provided with a pair of boots. The company’s issue is with the number of pairs of boots that employee’s request. During cross-examination the Managing Director refuted that he would have dismissed the employee over a request for a pair of boots. His issue with the employee’s request was that he believed the employee had been given a pair of boots previously. He could not recall the employee being left at home without work over this issue.
In June 2012 the company had more drivers than vehicles. A number of vehicles were “parked up” as older vehicles are heavier on fuel and emissions. The Managing Director described business as “extremely tight” and the company was having a bad year that year as had also been the case in 2011. Fuel prices were very high and it was a very difficult time for the company.
The Managing Director refuted as untrue the contention that the employee was told to make his own way home when he became unwell in April 2012.
The Managing Director confirmed that he was involved in the decision to engage the independent HR company to deal with the employee’s grievance. He could not recall when he met with this company but he recalled receiving a transcript of the meeting. The employee had resigned by that time.
Determination:
There were significant conflicts in evidence between the employee and witnesses for the company. The Tribunal preferred the evidence of the employee.
The employee was issued with two written warnings for littering of the company’s premises and for failing to undertake a scheduled journey to the U.K. The employee invoked the company’s grievance procedure primarily around the issuing of these written warnings but encompassing other matters. Before the conclusion of this process he tendered his registration.
The Tribunal is uncomfortable with the timing of the written warnings and the manner in which they were issued. It seems to the Tribunal that the company was trying to “put manners” on the employee but this is not a legitimate use of the disciplinary process.
Procedurally, the issuing of both warnings was flawed and, indeed, the Tribunal has grave reservations as to whether either was warranted. In the conflict of evidence between the employee and the Managing Director of the company, the Tribunal found the employee’s version of events to be more plausible particularly given the inconsistences in the Managing Director’s evidence.
The disciplinary process (such as it was) unfair from start to finish.
The employee was entitled, as he did, to raise a grievance around the issuing of the written warnings. It was for the company to ensure that matters were progressed expeditiously. There were unacceptable delays which must be attributed to the employer. When asked to account for an unexplained delay of some 4 weeks a witness for the external company retained to conduct the grievance process advised the Tribunal that this external HR company was not responsible for the delay at one point but, quite understandably, stopped short of attributing the delay to the company in this case. With the greatest of respect to the company, the Tribunal believes that it played “lip service” only to its own grievance process.
In all of the circumstances the Tribunal is of the opinion that it was reasonable of the employee to resign his employment. The bond of trust with his employer had irretrievably broken down and the company must accept the responsibility for this.
The Tribunal awards the employee the sum of €6,000 is respect of his unfair dismissal. Thus the Tribunal varies the Rights Commissioner Decision (reference: r-129254-ud-12/JT).
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)