ADJUDICATION OFFICER DECISION      

 Adjudication Reference: ADJ-00006040

Parties:

 ComplainantRespondentAnonymised PartiesA Lorry Driver A Logistics Company}   Representatives Solicitors  IBEC ,20 June 2017

Complaints:

ActComplaint Reference No.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00008359-001 Date of Receipt. 24/11/2016 Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 CA-00008359-002 Date Of Receipt. 24/11/2016 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00008359-003 Date Of Receipt. 24/11/2016

Date of Adjudication Hearing: 20 June, 14 August and 27 September, 2017

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, Section 11 of the Minimum Notice a Terms of Employment Act, 1973 and Section 7 of The Terms of Employment (Information) Act ,1994, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.  

Background:

The Complainant worked a Lorry Driver for the Respondent Logistics company from 10 July, 2013 until he alleged that he was dismissed without notice on 23 September 2016. The Respondent has disputed the Dismissal. Additional claims were also lodged on terms of employment and minimum notice. The parties attended a Hearing in the case on 20 June. The Hearing was part heard and rescheduled for 14 August ,2017 where the Complainant and his witnesses presented but there was no appearance by the Respondent. I wrote to the Respondent in that regard and resumed the hearing date for 27 September. It transpired that the Respondent representative had gone off notice on 3 August, 2017 and this information was not brought to the attention of the PRU (Post Registration Unit) until August 15,2017. The Respondent was represented by Mr MD on the final day of hearing.

Summary of Complainant’s Case:

The Complainant worked as a driver for the Respondent. He had been rehired post a Redundancy situation in July 2013 and had been working a 39 hr week. The Complainant had agreed revised terms of work on 19 September ,2016. He commenced these hours on 20 September and completed two days before having a difficulty with a requested extended run on 22 September, which led to him being dismissed on 23 September. The Complainant had not resigned, nor was he claiming Constructive Dismissal. He submitted that he had been in correspondence with the Respondents Solicitors until they went off record on the day before the first day of hearing. CA -00008359-001 Complainants Evidence: The Complainant worked as a Lorry Driver on a part time basis, but worked mostly full hours. He submitted a written statement for the record. On 19 September, 2016, the Transport Manager, Mr TM, offered him full shifts of 7.8 hours over 6 days and 5 nights   over the span of a fortnight. He recalled that he had worked evenings on 20 and 21 September. He was usually notified of work, either the day before or on the day of the runs, but he wasn’t phoned for these shifts, he just came in. He submitted that he had told Mr TM that he wouldn’t be able to do 12 hour shifts. He had done them previously but could no longer manager them. On the Thursday, September 22, he received a phone call from his Supervisor, Mr S informing him that he had two runs to complete that evening. Shortly afterwards, he received an automated text confirming this plan. The Complainant raise an objection with his Dublin based supervisor on the anticipated duration of the run, which he estimated to be more than the 7.8 hr time span that he had agreed with Mr TM. He told him that he would do one long run and a shorter city drop and left him to organise. He received a further call from MR TM asking him to complete the two runs and he would sort it out the next day. The Complainant stated that he then commenced work at 1pm. he waited to receive a defined route plan. He then rang Dublin at 14.49 hrs. Supervisors had changed over and he did not receive an update. He then approached Mr S again, who informed him that the Managing Director had rang and left a message for the complainant but was requested to speak to the complainant directly himself. The Complainant sought to contact Mr MD, without success. Mr S then informed him that the instruction was “tell him to xxxx off home if he is not doing the two runs “The Complainant withdrew his tachograph and went home. The Complainant reported for work the next day and discovered that no routing paperwork had been prepared for his shift. This was normally on the desk in the kitchen area He sought an explanation in the company of a fellow river Mr D 2 and Mr TM confirmed that he had been instructed by Mr MD “not to use you anymore “He went home and forwarded an email to the Human Resource Department at 17.30 hrs seeking details on what had happened “So, I would like to know is his intention to sack me or make me redundant on what grounds”. He did not get a response and resent the email on September 27 at 10.46 hrs. He then decided that he needed a Solicitor. He had difficulty in obtaining his P45 for the purposes of Job Seekers Benefit. During cross examination, the complainant confirmed that he understood that he had been offered a minimum of 7.8 hr shifts. The first two nights had run over this time. He confirmed that he had made an agreement with Mr TM on a reasonable number of hours per shift. . People who do 12 hrs, normally do 3 or 4 days. He had asked for the Monday off for his Birthday. He confirmed that he had called Dublin on 22nd September from his land line. He had emailed Human resources and the email did not bounce back. He stated that he had not received a phone call from Mr MD. In response to questions on the event of September 23, He was uncertain who told him to go home. When asked why he didn’t contact others at the company? , the Complainant responded saying that he thought it unusual that he did not get a response and thought he was being ignored .He was upset and he contacted his Solicitor instead .He contended that there was no traceability in phone calls and that was the reason why he sent the emails .He had not used the Grievance procedure in 17 years of employment and he was not aware of the procedure .He did not think to contact anyone else . Evidence of Mr D 2 Mr D2 had been a driver with the Respondent. He gave evidence that he understood that the complainant had been given a full-time position on the opposite shift to another driver. He was in the workplace on September 23 when the complainant had presented seeking his routing documents but there were none. The Complainant asked him to come with him to see Mr TM. He recalled that the Complainant stated that “I’m here to report “and Mr TM stated that he wasn’t to be routed anymore. He added that he had got into trouble for giving the complainant the full-time position. In cross examination, Mr D2 denied that the full-time position was to start the following week. The Complainants Representative outlined that the Complainant had been promised full time work until February 2017. This had been interrupted by the events of September 22 a 23 and had not been remedied by the submission of the letter of September 29. The Complainant submitted evidence of Loss and Mitigation. In considering the copies of the roster submitted by the Respondent, the complainant remarked that these records were produced a week after the work for salary purposes. CA -00008359-002 Minimum Notice The Complainant submitted that he was dismissed without notice and did not receive pay in lieu of notice. CA-00008359-003 Terms of Employment The Complainant submitted that no written statement setting out Terms and Conditions of employment were ever provided to him.  

Summary of Respondent’s Case:

CA -00008359-001 The Respondent outlined that the Complainant had not been dismissed from his employment and had instead abandoned his former employment and had no claim under the Unfair Dismissals Acts. The Respondent operates a privately-owned company delivering hazardous goods. The Cork site has 40 Drivers, four of whom are part time. the Complainant was one of the part time drivers. Work is rostered via schedules based in Dublin and is demand based. Typically, Drivers cover a “cycling shift” between morning and evening, varying in lengths from 8 hrs to 13 hrs. The Respondent outlined that the Complainant had been employed as a part time driver on July 10, 2013. He had previously been made redundant by the company. He worked approximately 39 hrs a week, comprising of 6 days a 5 night a week on alternate weeks. The Complainant was off on Monday 19 September. The Respondent submitted that the Complainant refused to carry out “two long runs” on 22 September, 2016.This constituted a refusal to carry out a reasonable management request without a valid reason. The Respondent stated that the complainant was contacted by phone several times to discuss his refusal to carry out the task but he never answered or returned the calls. The day was treated as an unauthorised absence and he was not paid. The next day, the complainant returned to the workplace without contacting any of the company representatives. This was not normal practice, as the complainant would normally call to make himself available on a given day. His Supervisor re-iterated that he must contact management regarding the incident as it was a breach of workplace practice and potentially a Disciplinary issue. the Complainant left the site. There was no further contact between the parties until the Complainants Solicitors letter was received belatedly seeking to withdraw his resignation and be deemed an employee. The Complainant had not activated the Grievance procedure and requested his P45 on December 1, 2016. The Respondent submitted that the email referred to by the Complainant was not received as in restructuring the Company had revised their email addresses. The Respondent contended that by requesting his P45, the Complainant voluntarily resigned and the WRC complaint form was a misrepresentation of facts. The Respondent disputed any claim for Constructive Dismissal. At no point did the Complainants terms and conditions change. The Complainant was working the same hours, with the same job title at the same rate of pay. While the specific route on the day may have altered, or rotated, his responsibility was not diminished or increased. The Complainant had not activated the Grievance Procedure. All Employees were issued with the staff handbook. The Respondent submitted that the Respondent had made every effort to engage with the Complainant on 22 and 23 September and he chose not to engage. The Respondent attempted to contact the Complainant to utilise the grievance procedure and to discuss his unauthorised absence. This was a reasonable approach and not reciprocated by the complainant. The sole contact from the complainant was via his Solicitor. The Complainant was not dismissed. Evidence of Mr S (Supervisor) Mr S outlined that the Complainant had reported to him over the course of six months. The Office closed in Cork and rosters were sent to Dublin. The Complainant worked a variety of shifts of 7.8/9/and 9.75 hrs. Drivers hours are fluid ranging from 7.8 to a maximum of 14 hrs. He confirmed that on Sept 22, he gave the complainant the message from Mr D to go home but disputed that he had said xxxx. He had no further contact with the Complainant until a month before the first day of hearing. Mr S confirmed that the complainant was not on the roster for the following day and he had been told not to roster him until the investigation was over   Evidence of Mr TM (Transport Manager) He recalled being out of the office on 22 September when the Complainant called him about workload. he told him he would be in by 12noon. He asked the complainant to do the two runs. he confirmed that the complainant was not rostered for September 23. He added that he could not recall that day. During cross examination, Mr TM confirmed that he wasn’t routing on 22nd. He did decide not to re-route the complainant. He confirmed that he was not involved in any investigation surrounding the complainant. He responded by saying “not for that particular one”. Mr TM was questioned on the hours of work on offer to the complainant. He confirmed that two more drivers were to be hired and it would have to be advertised. He confirmed that he had a conversation surrounding an expression of interest in the position with the complainant but this had not concluded in an agreement. He recalled describing the hours as a minimum of 7.8 hrs He denied that he had issued a similar contract with another driver, Mr D 2. Evidence of Mr MD (Managing Director) Mr MD outlined that the Company was going through a difficult period during the circumstances pertaining to this case and he wanted the correct context and background to be considered. the Company was involved in a TUPE (Transfer of Undertaking process) and the protection of the employment of 20 drivers was being considered. He confirmed that he had received a call from Mr S at 2.30 pm on September 22 where he learned that the complainant was not prepared to do certain work. He told Mr S to “tell him to go home” and confirmed that he would ring him himself. He left a message for the complainant at 2,45 pm, which was not offensive. The role of Human Resources had been restructured at that point. He confirmed that he had received the complainants Solicitors letter subsequently, but there were higher priorities for the company. He received the request for the P45 on December 2. He confirmed that the complainants part time status had not altered at the time of the issues referred to in the case. The company had plans to fill the position but this had not happened, During cross examination, Mr MD confirmed that the Company had lost a contract on July 1. He confirmed that his message left on Sept 22 at 14.47 hrs consisted of: Can you please give me a call I want to discuss the issue. He left his mobile number. Mr MD stated that he had nothing to do with the formulation of rosters and did not recall why a driver would be removed from a roster. Mr MD believed that it was possible that he gave the instruction to remove the complainant from the roster, but if this happened it would have been contingent on receiving a call back. He was always waiting for a call back and that was why he did not act on the Solicitors letter of September 29. Business exigencies took over but he believed that he had been reasonable in awaiting a call back. He believed that the complainant could have contacted the Human Resources Dept. Mr MD wasn’t aware that the Complainant hadn’t turn in after September 23, 2016.He was maintained on the books and received the Christmas Ham. He confirmed that the Complainant wasn’t offered a copy of the Grievance procedure nor had an Investigation followed. Mr MD confirmed that the company email addresses had changed in 2015 and this had been notified to all staff. The Company Offices had also changed. CA-00008359-002 Minimum Notice The Respondent submitted that the complainant had voluntarily resigned his employment and nonotice was due. CA-00008359-003 Terms of Employment The Respondent confirmed that the Complainant has not received a statement of written terms, neither had he requested it. Following a period of restructuring, all new hires now receive a generic contract which incorporates the requirements under legislation. The Respondent contended that the Complainant was motivated by compensation arising out of an oversight by the Respondent and he had not suffered loss or less favourable treatment. the Respondent disputed that compensation was a veritable redress.  

Findings and Conclusions:

CA -00008359-001 Claim for Unfair Dismissal. I have considered both submissions raised in this case. I have also reviewed the documentation requested by me on rosters and re-routing. I note that Dismissal has been disputed. To guide my decision making I have referred to the definition of a dismissal contained in Section 1 of the Act: “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (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, or ( c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose; “employee” means an individual who has entered or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative; Both parties in the case accept that the complainant worked for the respondent from July 2013 on a red-circled hourly rate of €17.50. There also was some overtime recorded. There is very little other agreement between the parties on the course of events during the week commencing 19 September, 2016. I accept that the Company was a busy place and the exigencies of business were clearly uppermost in the mind of the Managing Director. However, there are several inconsistencies that need to be set out in the first instance. 1. There was a clear dispute on the agreement on full time hours referred to in the complainant’s evidence. The Respondent outlined that they planned to advertise two positions and that the complainant was pre-mature in his understanding that he was on “full hours”. The Complainant was very clear on the evolution of the offer which he said he had accepted. The Respondent on the other hand was vague and   inconsistent and did not submit any records on this topic. However, Mr TMs reported conversation on the range of hours discussed points to a mutual discussion on the job at some point. I note from the Rosters that Mr D3 who was expected to be paired with the complainant in his revised role did populate the driving roster during the week commencing September 19. prior to this he seems to have been mainly Office based. This goes some way to defining that roster changes had occurred. I did not hear from Mr D3 in this case. I was also struck by the evidence of Mr D2 in this regard and his reference that the Respondent expressed a difficulty in hearing that the position was offered to the complainant. I must accept that the complainant did have an understanding that his role as a part time driver, albeit doing a larger number of hours was due to change during the week of September 19. It is regrettable that no records sprung into being to capture this change. 2 The Respondent referred on several occasions that the complainant had been a difficult employee, yet no evidence was adduced on this topic and the fact of his re-hire post redundancy was accepted by both parties. 3 I have considered the disparity in the email addresses as between one ending in .com by the complainant on 23 September ,2016and that clarified as ending in .i.e. by the Respondent. I accept that this change occurred. However, I would also note that the complainants email where he sought clarification was overtaken by his Solicitors letter of September 29, 2016. This is a claim for Unfair Dismissal and not of Constructive Dismissal. The burden of proof if a dismissal is found to have occurred lies with the Respondent. I have considered the facts and evidence adduced surrounding the alleged Dismissal. The Complainant had worked without a break in service from July 2013.I note that the respondent had not recorded the run of September 22 on the roster, and stated that the complainant was not paid for the day. However, both sides accept that the Complainant was asked to do an extended run on that day. This ought to have been rostered and recorded. I have considered both disputed accounts of what happened on September 22. I accept the Respondent evidence that the complainant was sent home. I appreciate that the pressures of business may have been uppermost in the mind of the Managing Director and the raised objection to the extended run served as an unwelcome irritant, however, it is the events which occurred after the instruction to go home which are of most pertinence in the case. I accept that Mr TM prevailed on the complainant to carry out the “unsatisfactory” delegation. I note that Mr S hesitated before giving the instructive message from Mr M. I have found a large communication gulf between the company premises in Cork and Dublin. I note that Mr S was of the view that the complainant was to be de-rostered pending an investigation. I found the vacuum in informing him of this to be wholly inconsistent with the way he was informed to leave on September 23. Again, I could not establish any records of an intended investigation. I note that the complainant stated that he requested clarification of his employment status on September 23. I was at a loss to understand the Respondent position on this day. Mr MD had no recollection of the day and Mr TM conveyed a message that the complainant was not to be used. The Complainant was not informed that he was not rostered on that day. I was not given the routing records which I had requested from the Respondent. I note that both the complainant and Mr MD stated that they made calls to each other on 22 September. These did not end in a connection.I must draw some inference from the absence of the routing records . The Respondent submitted a contents page of the Company procedures. This provided details of Employment Policies on Golden rules, Grievance and Disciplinary Procedures. It is of note that nobody appears to have made recourse to the Policy and Procedure Booklet. I understand that the Complainant stated that he had not been provided with the booklet, however, he had extensive prior knowledge of the workings of the company sufficient to raise an issue as demonstrated by his email to HR. It is not unusual in times of unease regarding work instructions to invoke a “status quo” clause and to complete a task under protest pending an engagement with Supervisors. I can see that MR TM sought to affect this but it seems to have been overtaken by the message to “go home “. I must accept that nothing improved the next day. I found it unusual that given the prior contact by both the Complainant and MD that the attempts to connect in conversation were not attempted again on September 23. I note the complainant’s reservations that there was more traceability in an email than a call, but I did not find that plausible in the circumstances. I have found from my assessment of the facts, that this brings the circumstances of the case firmly within the parameters of Section 1 A of the Act and constitutes a Dismissal. The Complainant remained on an unpopulated roster until his P45 issued in December. While, I note that the Respondent submitted that he was maintained on the roster inclusive of receiving his Christmas gift, he was not in receipt of pay and a continuous employment relationship had unilaterally ceased. There is no evidence that the complainant voluntarily resigned. Section 6(1) of the Act sets out that a Dismissal is deemed to be unfair save substantial grounds are in existence. Section 6(7) outlines that the reasonableness of an Employer and compliance with Certain codes of practice may also be considered. I have given some consideration to the apparent lull in communication following the Complainants letter from his Solicitor .The Complainant clearly set out that he was seeking clarification of his work status and a continuum in payment .The Respondent passed the file to the Company Solicitor and submitted   that a return call from the complainant was anticipated throughout this period .This , for me at least , is not an adequate reason for a lack of response to the complainants letter of September 29 , some 7 days post the controversial incident at work . I note that the Respondent changed Representatives the day before the first hearing. This was followed by the Representative going off notice some 11 days before the second day of hearing. I found that the nonappearance of the Respondent during the second day of hearing to have added to the complainant’s distress. He complained a condition of Vertigo had worsened. In total, I saw the approach as avoidant on behalf of the Respondent. In Doyle V Pat the Baker UD862/15, The Eat determined that where an employee gives notice and the employer says leave now, this is technically a dismissal. The Tribunal found that the Employer brought the employment to an end instantly rather than at the end of the notice period. The Respondent acknowledged that the Complainant was sent home and not permitted to re-roster at the company. The stated intention to hold an investigation did not materialise. I have found that the Complainant was in fact locked out of employment. The Complainant was not furnished with a contract when he was re-hired. The Company went on to issue Generic Contracts which permitted a statutory notice period on termination of employment. The Respondent did not honour the notice period. While I appreciate that the Respondent business was experiencing major operational challenges ,the company had a duty of care to the Complainant that was not honoured in this case .I have found the Respondent acted far outside the parameters of what I would expect from a reasonable employer .I have found significant procedural deficits by both parties in the case .On the Respondents part , I found avoidance and a disregard for how the complainant was going to survive post-employment .I note that he came very close to losing his Job Seekers Benefit for want of an administrative engagement by the company .On the complainants part, I found that he did not maximise and exhaust the use of local procedures in a company where he was well known over 17.5 years . However, I must conclude that the Respondent had a higher responsibility in this case to follow their own procedures and adhere to Statutory Instrument 146/2000. I have found that the Respondent by passed fair procedures and natural justice and took a short cut to Dismissal, which was not linked to substantial grounds . I have found this Dismissal to be unfair. I have, however, also found that the Complainant contributed somewhat to his Dismissal.

CA-00008359-002 Minimum Notice I have found that the Complainant was not afforded his statutory notice period of two weeks. The Complaint is well founded.

CA-00008539-003 Terms of Employment The Respondent has accepted that the Complainant was not furnished with the terms of his employment in accordance with Section 3 of the Act. It would have been a helpful roadmap for both parties had this document been furnished. I find that this breach has been continuous and the complaint is well founded.   

Decision. 

CA -00008359-001 Unfair Dismissal Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found the Dismissal to be unfair with a part contribution by the complainant estimated at 20%. I have considered the extensive documentation on loss and mitigation and have found that both redress options of re-instatement and re-engagement not to be practical options open to me in this case. I have therefore, elected to award compensation in redress for the unfair Dismissal. I order the Respondent to pay the Complainant €20,000 in compensation for the Unfair Dismissal. I also recommend that the Respondent ensures that the correct usage of the Grievance procedure is promoted throughout the company via the Line Management structure.   Section 41 of the Workplace Relations Act 2015 requires that I decide in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA -00008359-002 Minimum Notice I have found the complaint to be well founded and I award the sum of € 1,522.00 in compensation for the breach of the Act.

CA -00008359-003 Terms of EmploymentI have found the complaint to be well founded and I award the sum of € 1,522.00   in compensation for the continuous breach of Section 3 the Act.

Dated:   31.01.2018

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words: Unfair Dismissal, Minimum Notice, Terms of Employment.