ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00006787

Complaints:

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00009177-001 19/01/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00009177-002 19/01/2017 Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 CA-00009177-003 19/01/2017 Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012 CA-00009177-004 19/01/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00009177-005 19/01/2017   Date of Adjudication Hearing: 13/4/2017 and 19/05/2017 Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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 commenced employment on 8th of November 1999 and his employment ceased on 8th of October 2016. He was employed as a Van Sales person with a basic wage of €650 gross which with commission was on average €830.5 weekly and was engaged mainly on Route X delivering the respondent’s products.

Summary of Complainant’s Case - CA-00009177-001:

The complainant worked for 17 years with the respondent working mostly on Route X, a route of 250km which he developed to become a very successful route. On 7th June 2016 while finishing work he was requested by Mr A, the Depot Sales Manager to attend a meeting in a local hotel on 9th June 2016. He asked in advance what the purpose of the meeting was but was told they could not say. In attendance at the meeting was Mr A, Mr B Head of HR and Mr C another manager but they told him they were not ready for him and to come back. He returned a short time later and Mr A left to take a call. At the meeting Mr B told the complainant that the company were restructuring and that Route X, his route, would be leased out to an agent and therefore, he would be placed on a different route.   The complainant was shocked by this and expressed how upset he was. He was told at the meeting that he did not own the run but was assured that any change in his working conditions would not happen for a number of weeks after consultation with him over which route he would move to.   He advised that he left the meeting very angry. The next day 10th June he was horrified to find that when he presented himself for work, his route had been changed and he was allocated Route Y which is a distance of 60km versus 250km, therefore, significantly reducing his earning potential. He contacted his doctor for an appointment as he felt unwell and secured an appointment for Monday 13th June and his doctor certified him sick. He never returned to work. On 28th June while out sick, he wrote to the respondent through his solicitor advising that he wanted to return to work and was available for work and that the issues needed to be resolved.   It took some time before a meeting could be arranged but a meeting was eventually arranged on 6th September 2017 and it was confirmed to the complainant that Route X was gone and he would be allocated another route. He was advised that he would be ring-fenced for a period of six months, which would result in no loss of income to him for this specific period. When the complainant raised his concerns about the manner in which the decision had been made, there was no answer forthcoming. The complainant also asked why he was not given the opportunity to take over the route and become the ‘agent’ but the respondent advised the decision was made.   A letter was sent to the respondent on 22nd September 2016 detailing the complainant’s grievances including the loss of opportunity for future earnings due to the decision to lease the route to a third party and the conduct of the respondent in how his terms and conditions were changed and the unwillingness of the respondent to engage with him meant that their treatment of him amounted to unfair dismissal. The respondent replied on 29th September refuting this and thus due to the unreasonableness of the respondent the complainant felt he was left with no alternative but to commence employment with a competitor on 10th October 2016. On 14th November 2016 the complainant wrote to the respondent seeking compensation for his losses arising out of his dismissal but no compensation was forthcoming.   Evidence given by a colleague Mr D, confirmed that agents had been engaged by the respondent but that it was unusual to engage an agent for a route as good as Route X .   The complainant’s representative detailed that the complainant had raised the issue through detailed correspondence so many times such that it was a grievance but that regardless, in line with Stobart (Ireland) Driver Services Limited and Keith Carroll [2013] IHC581 the company cannot hide behind a failure by the complainant to invoke the grievance procedure if the respondent knew of the grievance which they did.  

Summary of Respondent’s Case - CA-00009177-001:

The respondent outlined that the complainant worked mainly on Route X and that the respondent is continually striving to deliver its services in line with changing customer demands. The expectation is that staff must be flexible to take on additional duties or perform them in a different way to meet these demands. The complainant was invited to attend a meeting on 7th June 2015 with the Mr A, Mr B and another manager Mr C. The complainant was advised that they were restructuring and that Route X was being leased by the company to an agent.   He was advised that he would be allocated a similar type of route and that his salary and commission would be ring fenced for six months. To their surprise the complainant did not engage in any meaningful discussions and used offensive language and made insulting remarks and said he would not attend work from Monday onwards. The following day Friday the changes that the complainant had been advised of were implemented and the complainant went out on medically certified sick leave for work-related stress from 13th June and never returned to work.   On 28th June the complainant contacted the company to say that he was available for work and he was advised by Mr B that they wished to meet him again and discuss an alternative route. This meeting took place on 6th September 2016 and it was explained to the complainant the reason they leased out Route X and it was further reiterated that the respondent would ring-fence him for a period to ensure there was no loss of income. They were surprised at the manner in which the complainant rejected all their suggestions and the manner in which he questioned the decision making of the company. At the meeting of 6th September the complainant requested a redundancy package even though there was no redundancy situation and even if there had been, the company operate a LIFO policy such that the complainant would not have been impacted owing to his length of service.   On 22nd September the complainant looked for compensation for what he claimed was the respondent’s refusal to reinstate him onto Route X.   However, the respondent had never dismissed the complainant therefore, they were not in a position to pay him compensation. The respondent had made every efforts to engage in discussions around an alternative route but the complainant refused to do so and replied to this letter on 29th September 2016. On 14th November 2016 the complainant contacted the company advising that he had taken up alternative employment and detailed out his estimated losses. The company reiterated their position on 16th November and issued a P45 to the complainant as he had taken up alternative employment.   Evidence from Mr B was that they did not get a chance to exhaust the process as it was clear that the complainant was not going to engage. He also outlined that it was because of performance issues that the decision was taken to outsource the route to an agent. It was confirmed that the complainant had not been disciplined in relation to such poor performance.   Evidence from Mr A was that every effort was made to resolve the issue but that an agent is hungrier than an employee for sales and that this business decision was taken 2-4 weeks before the conversation with the complainant. It was outlined that issues had been raised in the past with the complainant regarding the need to add on additional calls on his route but that he would not engage with this request.   The respondent detailed that they at all times acted within the contractual terms of the employment relationship. The complainant’s terms and conditions did not change and his role and responsibilities stayed the same. In support of this submission the respondent quoted Conway v Ulster Bank UD 474/1982 such that the complainant’s contract was not varied and McCormack v Dunnes Stores UD 1421/2008 such that there was a requirement of the complainant to utilise established procedures to engage in meaningful discussion over the changes which he did not.   The respondent looked to ring-fence the complainant for a six-month period in an effort to reassure him but he refused to engage with the process. There was still a job available for him but he resigned of his own volition. They did not offer him the role of agent as it had been offered to him before and he did not avail of it, thus it was reasonable to expect that he would not be interested in it.   It was set out that complainant is required to be open and flexible to changes and that instead of engaging with them, he commenced work for a competitor and did not let them know until a month later.    

Findings and Conclusions - CA-00009177-001:

The claim is one of constructive dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. Section 1 of the Unfair Dismissal Act defines constructive dismissal as: “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 the 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” In reaching my conclusion I have carefully evaluated the evidence adduced in the course of the hearing and taken full account of the written submission made by the parties.   The burden of proof, which is a very high one, lies on the complainant and it is necessary that he show that his resignation was not voluntary. As is set out in Western Excavating ECC Limited –v- Sharp 1978 ICR221, the legal test to be applied is “an and / or test”. Firstly, I am required to look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract. “if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance” If I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test. This is such that : “the employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving” However, in the first instance I will look at whether the behaviour of the respondent was such that it went to the root of the contract of employment.   While many of the complaints related to how the respondent handled the changing of the complainant’s route – Route X; it was detailed by the complainant this was a fundamental change in his terms and conditions of employment. In effects, he outlines that he had worked on that route and it was unacceptable for the respondent to remove this from him as it was in effect ‘his route’.   The respondent has set out that it is ‘their route’ and that they reserve the right to allocate the route to whoever they wish. I note that it was accepted by the complainant in direct evidence that he does not have the right to decide what shops he delivers to or what products are delivered to the shops, therefore, when I consider the evidence in its entirely, I must accept the respondent’s position that changes in terms and conditions such as was implemented are of necessity in carrying out their business.   Furthermore, I note that the complainant signed a contract, albeit he was unsure whether it was his signature (but there is no reason to suggest it is anything but his signature), which details that he would be expected “to implement any new procedures or system that the Company may implement from time to time”.On that basis, therefore, having given consideration to all the evidence it is my view that the “contract test” which indicate a significant breach going to the root of the contract have not been proven. I therefore, move to the reasonableness test.   When assessing the reasonableness test, all of the circumstances of the case must be considered to establish whether or not it was reasonable for the claimant to terminate his contract of employment, in other words it . “… must be satisfied that the employee is either entitled or is acting reasonably in terminating the contract. In order for an employee to meet either of these criteria the conduct referred to in the act cannot be petty or minor but must be something serious or significant which goes to the root of the relationship between the employer and the employee. Consequently, the Tribunal must look at the conduct of the employer and the reasonableness of the recognition by the employee.” (Joyce v Brothers of Charity Services [2009] E.L.R. 328 at 332.) The complainant was not given prior notice of the purpose of the meeting on 9th June 2016 and when he asked what was its purpose, he was told that he could not be told. He was advised when he arrived at the meeting that the respondent was not ready for him, and when they were ready for him, one of the attendees Mr A, left to take a call. While I am sure some of this was unavoidable, I am surprised at what appears to be disregard and what could also be regarded as disrespect shown to an employee of 17-years service up to this point.   The complainant was then advised of the change in the route and the respondent moved quickly to the proposed route which it was expected that the complainant would be work on instead While there was a conflict of evidence around whether the complainant was advised at that meeting that he would be given a few weeks before the change would happen (which was the complainant’s version) or that the change would be implemented immediately; I prefer the complainant’s evidence as it would explain the complainant’s reaction the following day when he attended work and found out the route was changed. He felt understandably upset and attended his doctor on Monday 13th June who certified him as medically unfit for work.   He requested his contract of employment which was forwarded to him by Mr A. However, considering how the previous meeting had gone and that the complainant was now out sick, I am surprised that the respondent details in the opening sentence of their letter of 14th June, “I trust you are keeping well” when they clearly knew that he was out sick and therefore was not “keeping well”.   On 28th June 2016 the complainant’s solicitor became involved and sent a letter detailing their client’s dissatisfaction with the situation which the respondent replied to on 7th June 2016. He had to request also a copy of the grievance procedure and there is nothing to suggest that the complainant had received a copy of the company’s grievance procedure up to this point. There is a significant passing of time before a meeting is scheduled. While I can appreciate that it can be difficult, particularly during summer months, to arrange for relevant people to attend meetings and I note that the complainant’s representative was also unavailable at times; I would, however, have expected that the respondent would have shown more urgency to meet with their employee of 17 years who was out sick with “work related stress”. I do not get a sufficient sense of urgency in their efforts to meet with their employee. The earliest that the meeting eventually took place was 6th September, almost 3 months after the incident, which the complainant attended without his representative in attendance but accompanied by his brother-in-law.   The minutes of the meeting which the complainant accepted was an accurate reflection of the meeting, clearly outline that the complainant was unwilling to engage in discussions regarding a new route. However, I am perplexed to understand why the respondent repeatedly refused to engage in any discussions around why the change in route was occurring which was clearly a source of the complainant’s considerable distress and which I am satisfied that the respondent was more than aware of. Furthermore, I do not believe there was sufficient engagement with the complainant around his legitimate concerns around how the new route might impact negatively on his pay. While he was advised that he would red-circled for six months this did not deal sufficiently with the issue and the complainant was repeatedly told at that meeting that he needed to “move forward” and pick whatever route he was going to move to. Further correspondence was exchanged with no resolution and on 14th November 2016, the complainant through a different solicitor advised of his resignation as he had taken up employment elsewhere the previous month. From the evidence of the Mr A and Mr B I am left with the conclusion that the decision was taken because of alleged performance issues with the complainant which they choose not to address directly   While the respondent has the right to manage his organisation and deliver its services in line with their ever-changing customer demands, as detailed in their submission, this does not excuse their obligations to ensure reasonable engagement and consultation with the staff member in question.   While the respondent cites the case of Conway v Ulster Bank, I am satisfied that this case differs in that the respondent in the instant case was clearly aware of the complainant’s grievance from the copious correspondence which was exchanged. Thus, as was detailed in the case of Brady v Newman UD330/1979,   “… an employer is entitled to expect his employee to behave in a manner which would preserve his employer’s reasonable trust and confidence in him   so also must the employer behave.”   The respondent in this instant case failed to do that and although I note that the complainant showed absolute no willingness to discuss the new route, I must form a conclusion based on the entirely of the evidence, that it was reasonable for the claimant to terminate his contract of employment. In assessing the most appropriate form of redress, while I note that the respondent details that they have a role available for the complainant, I believe compensation to be the most appropriate form of redress. Section 7 of the Unfair Dismissals Act, as amended, provides: 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17of this Act) as is just and equitable having regard to all the circumstances, or(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— ( a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, ( b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, ( c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. (2A) In calculating financial loss for the purposes of subsection (1), payments to the employee —(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or (b) under the Income Tax Acts arising by reason of the dismissal,shall be disregarded.(3) In this section— “ financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “ remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.   I note that the complainant has looked for loss of earnings to be considered from 10th June 2016 when he went out sick owing to the conduct of the respondent and requested that future loss of earnings be taken into consideration as the complainant is at a loss of €90.97 per week since he secured new employment. While the respondent had a duty to ensure that a timely meeting took place with the complainant as quickly as possible after the incident in June, I believe the complainant also played a contributing role of 40% in the dismissal including inter alia delays in the meetings taking place, his failure to engage in any discussions regarding the new route leading as well as this knock-on effect on his future loss of earnings. Based on all of the above, in accordance with s.7 of the Act, I order the Respondent to pay the Complainant the sum of €7,208 gross for the unfair dismissal.  

Summary of Complainant’s Case - CA-00009177-002:

The complainant detailed that during his employment he presented for work at 05:00 a.m. and worked without a break until 12:30/01:00 pm. At no stage was it communicated with him the necessity to take a break in line with the legislation. Due to the pressures on him, to complete the run in a timely fashion, it was not possible to take his break. The complainant disputed that he had ever seen the handbook in the depot which detailed that he was required to advise management if he failed to get an opportunity to take his break.    

Summary of Respondent’s Case - CA-00009177-002:

The respondent disputed that the complainant did not take his breaks.   While they accepted that they had no records of same, there was a company handbook available to the complainant in the depot detailing that “if at any stage you are unable to take your allocated break, please inform your Line/Depot Manager immediately and s/he will address the situation”.    

Findings and Conclusions: Case - CA-00009177-002:

  Section 25 of the Act requires an employer to maintain records of employees’ rest breaks. Where it fails to keep such records the burden of proving compliance with the provisions of the Act lies with the employer. In this case the Respondent advised that it did not keep such records and albeit they strongly disputed that the complainant did not get his breaks, and that it was detailed in the company handbook available in the depot, that if an employee did not get their break they should inform their manager; there is no record that the complainant received a copy of this handbook. The burden of proving compliance with the provisions of Section 12 of the Act lies with the employer.   Having considered all the evidence accordingly I find that the Respondent has failed to discharge the burden of proving compliance with the provision of Sections 12(1) of the Act during the relevant period. I determine that the complaint made by the Complainant alleging breaches of Section 12(1) of the Act is well founded and award the complainant compensation in the sum of €250 for breaches of Section 12 of the Organisation of Working Time Act, 1997. s

Summary of Complainant’s Case - CA-00009177-003:

The complainant withdrew this claim  

Summary of Complainant’s Case - CA-00009177-004:

The complainant withdrew this claim.  

Summary of Complainant’s Case - CA-00009177-005:

The complainant outlined that as the route he had worked on for 17 years had been sold to an agent, it was in effect a redundancy situation and that the offer of an alternative route constituted a drastic change in his terms of employment such that it was reasonable for him to refuse to accept this change.   It was outlined also that this was without prejudice to his claim for unfair dismissal   It was detailed that there was nothing to prevent a successful claim under the unfair dismissal complaint (CA-000009177-001) and the redundancy claim (CA-000009177-002).    

Summary of Respondent’s Case - CA-00009177-005:

The respondent outlined that the complainant needed to choose whether they were pursuing a claim for unfair dismissal or redundancy and that it was not possible to persue both.   It was also detailed that the decision to outsource the Route X to an agency was taken after much consideration and that it was the company’s decision to make. No driver ‘owns’ a route and the respondent were willing to facilitate the complainant on another route such that redundancy situation did not arise. Furthermore, it was not the case that this change in route was a fundamental change in the complainant’s terms and conditions as the route was not in a different city and there was no material change such that it would not be enough for an inference of redundancy.    

Findings and Conclusions: Case - CA-00009177-005:

  As a preliminary issue, the respondent disputed that the complainant could seek compensation under both unfair dismissal and redundancy legislation. This was addressed in Cusack v Dejay Alarms Ltd (UD1159/2004whereby compensation may not be awarded twice on the grounds that an employee was dismissed by reason for redundancy and for unfair dismissal. This was also reinforced by Ní Dhomhnaill v Jambo Sana Ltd (UD 1114/2012) which found the dismissal to be unfair such that the employee was awarded loss of earnings for the six months but also the equivalent sum for statutory redundancy. The redundancy sum was awarded as part of the employee’s compensation for unfair dismissal.   However, firstly it is necessary to look at the claim for redundancy on its own merit, based on all the oral and written evidence.   Section 7(1) provides that: An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—(a) he has been employed for the requisite period, and(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of two years ending on that date.  Furthermore, Section 7 (2) goes on to state: (2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concernedthe dismissal is attributable wholly or mainly to—(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or [(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained   Based on all the evidence presented to me, I do not find that a redundancy situation existed on the basis that the claim does not satisfy any of the provisions for “dismissal by reason of redundancy”. I must find, declare and decide that the complaint is not well founded; it is rejected and is not upheld.    

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act. Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.   CA-00009177-001 I find that the complaint made  pursuant to the Unfair Dismissals Act is well-founded and the respondent shall  pay to the complainant redress of €7,209 gross. CA-00009177-002 I determine that the complaint made by the Complainant alleging breaches of Section 12(1) of the Act is well founded and award the complainant compensation in the sum of €250 for breaches of Section 12 of the Organisation of Working Time Act, 1997. CA-00009177-003 I must find, declare and decide that the complaint under the 1967 Act is not well founded; it is rejected and is not upheld.    

Dated:   18/01/2018

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words: Unfair dismissal, redundancy, rest breaks, constructive dismissal