Complainant

Respondent

Anonymised Parties

A truck driver

A waste management company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00010581-001

01/04/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00010581-002

01/04/2017

In September 2016, the complainant transferred to the respondent company in accordance with the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003. He had been employed since 2010 with the transferor and a predecessor of the transferor. The complainant is a truck driver and evidence was presented at the hearing which showed that he has a class A, B, C, D, E+C and E+D driver’s licence.

Before the respondent took over the transferor’s business, the complainant was driving a truck that was leased by the company. His job was a one-man operation and involved the delivery and collection of bins and cardboard recycling products. The complainant continued to do this job after the transfer. In February 2017, the Commercial Manager informed him that the truck he was driving would be returned to the leasing company. The complainant was offered three other trucks to drive and he was also offered a job as a helper on a two-person truck. He rejected the offers of alternative work and claimed that his job was redundant. This was rejected by the respondent.

In the end, the complainant decided to resign and he confirmed this in writing on March 10th 2017. In what was referred to as a “gesture of goodwill,” the respondent paid the complainant €1,500 and two weeks’ pay in lieu of notice, in addition to outstanding holiday pay.

As he left his employment after just over seven years of service, the complainant claims that he is entitled to four weeks’ notice. He left on March 10th 2017, having signed a letter of resignation.  

The respondent’s position is that the complainant resigned on March 10th 2017 and that he was not given notice of termination as the respondent did not terminate his employment. As part of a settlement agreement, the complainant was paid in lieu of two weeks’ notice; however, the respondent’s position is that no notice was due.

From the evidence presented by both parties at the hearing, it is clear that the complainant wanted to leave the company and did in fact resign on March 10th 2017.   He did not give notice to his employer of his intention to resign, but this was not at issue. He received two weeks’ pay in lieu of notice and it appears that this led to him believe that he should have received four weeks’ pay.   However, he was not entitled to notice, as his employment was not terminated by his employer.

In evidence, the complainant agreed that in February 2017, he was informed that the company intended to give up the leased vehicle he was driving. He was offered other trucks to drive but he didn’t accept any of the proposals because he said he wasn’t able to drive the big trucks.   He said that in 2012, he was diagnosed with a heart problem and that he informed a manager in the previous company about this. In 2013, he said that another manager referred him to the company doctor who, he said, advised that he couldn’t do any physical work.  

One of the jobs offered as an alternative to driving was that of a driver’s helper. The complainant agreed that he had worked as a helper with the predecessor of the transferor in 2010. However, he said that due to his medical condition, he was unable to do the job of driver’s helper anymore.

At the hearing, the complainant said that because of his health and the fact that he is aged 63, he was unable to take on any of the alternative jobs offered by the respondent and that he should have been made redundant. In his complaint form, he said that he was “pressurised” to leave his job voluntarily.

At the hearing, I asked the respondent if, at the moment, they had a suitable job to offer the complainant. A manager for the company said that there was a job available now. I asked the complainant if he would accept an offer of a suitable job and his response was “no.”

For the respondent, the commercial manager outlined the sequence of events in the run-up to the day that the complainant resigned on March 10th 2017. To eliminate the cost of leasing and to make the route more efficient, a decision was made to use a bigger truck on the route driven by the complainant. This was to be a two-man operation and the complainant was informed of the plan in February 2017. Initially, he had no issues with the change. Just before the larger truck was put into operation however, the complainant asked for a meeting with the commercial manager. A meeting took place on March 7th and the complainant was joined by a member of the dispatch team who like him, could speak Russian and who could translate for him. The complainant said that he was not happy with the prospect of driving the larger vehicle. The manager said that he told the complainant that he was licensed, qualified and capable of driving the big truck, but that he would see what other vehicles were available.

The following day, the manager said that he met the complainant again, accompanied by the dispatch colleague and he offered him a number of alternatives:

1. Driving a skip truck;

2. Driving a “roll-on” truck;

3. Driving a bin truck;

4. Driving a “curtain-sider” truck;

5. Helper on a bin truck.

At the hearing, the commercial manager said that each of these roles were jobs that the complainant was qualified to carry out and in his view, there was no impediment to him doing any one of these jobs competently. The complainant refused each of the options. He said that he couldn’t do the helper job because of his medical condition. The manager said that this was the first indication that the company had that the complainant had a health problem. In any event, the complainant asked if his position could be made redundant. This was rejected due to the fact that the complainant’s job had to be filled, in addition to a number of other driver and helper vacancies.

On March 10th, a third meeting was held with the same participants, the commercial manager, the dispatch person who could translate from Russian and the complainant.   The manager said that he had made enquiries with the HR Department and that redundancy was not an option and he asked the complainant to take up one of the five jobs that had been proposed at the previous meeting. The complainant again refused and said that he would resign. He asked for a letter for the Department of Social Protection so that he could claim some social welfare benefit and he asked if he could get a payment for leaving.

The commercial manager said that he went back to the HR Manager with the complainant’s request for a payment. It was agreed that, in recognition of the complainant’s service since 2010, a sum of €1,500 could be offered. The meeting resumed and the commercial manager told the complainant that if he wanted to resign, he would have to confirm this in writing and the company would pay him an “ex gratia” sum of €1,500.   The manager said that the complainant was “very happy” with the offer of €1,500 and he wrote a letter of resignation. He also signed a letter from the HR Manager, confirming acceptance of the payment of €1,500, two weeks’ pay in lieu of notice and 4.5 days’ pay for holidays not taken. The complainant finished up that day.

The respondent’s position is that the complainant was qualified and licensed to drive the trucks that he was being asked to drive. The commercial manager said that, in his view, the complainant didn’t want to move to a bigger truck as he was happy working alone on a smaller truck.

At the hearing, the commercial manager pointed out that, while options one, two and three above involved driving larger vehicles than the vehicle the complainant had been driving (the leased truck), the “curtain-sider” vehicle is the same size, but he had also rejected this as an option.

When asked about the complainant’s contention that he was unfit to take on any of the alternative jobs due to his health and age, the manager said that they had never been made aware of a health problem and that this was only raised as an objection to the helper job. The respondent’s position is that the jobs on offer would not have any more impact on the complainant’s health than the job he was doing up to the day he resigned.

In response to the contention that the complainant was pressurised to resign, the manager said that that the company was in fact putting pressure on the complainant to take up one of the jobs, as he was a competent driver and drivers with his experience and qualifications are constantly in demand.

The circumstances in which an employee may claim a redundancy lump sum are set out at section 7 of the Redundancy Payments Act 1967 (amended) and can be summarised as follows:

(a) The business has closed or the place where the business was carried out has changed;

(b) There is a requirement for fewer employees in the business or at the place where the business was carried out;

(c) The employer has decided that the work that that was done by the employee could be done by fewer or no employees;

(d) The job will be done in future by a person who is more qualified or trained than the employee;

(e) The job will be done by a person who is also capable of other work that the employee is not qualified or trained to do.

It is clear from the submissions presented at the hearing and the evidence of both parties, that the circumstances that prevailed at the respondent company in March 2017 do not fit into any one of the five categories set out above. It is evident that the prospect of leaving his job was initiated by the complainant himself. In this circumstance, I have to conclude that the complainant’s job was not redundant and the respondent did not intend to make him redundant.

As the truck he was driving was no longer going to be used by the company, it was reasonable for the respondent to assign the complainant to a different vehicle.   The employer could have decided that he was to drive a specific truck on a specific route, but he was given five options to choose from and he rejected each one. It is clear therefore, that the complainant’s job was not redundant. The fact that the company had vacancies for drivers is further evidence of the fact that a redundancy situation did not arise.

It is clear that the complainant asked to be “paid off.” He must have considered this option to some extent as he also asked for a letter from the Department of Social Protection so that he could claim a social welfare benefit. He said at the hearing that, for medical and age reasons, he was not fit to drive the large trucks. However, the fact that an employee considers that they are not able to do their job due to illness or age is not a ground for redundancy.

I have to conclude that the complainant’s job was not redundant and therefore, he is not entitled to statutory redundancy pay.

CA-00010581-001

Complaint under Section 11 of the Minimum Notice and Terms of Employment Act 1973

From the submissions and the evidence presented at the hearing on October 13th 2017, I have concluded that the complainant resigned from his job on March 10th 2017. As he resigned, he was not entitled to notice and his complaint under the Minimum Notice Act fails.

CA-00010581-002

Complaint under Section 39 of the Redundancy Payments Act 1967

I have found that the complainant resigned and that his job was not redundant. Therefore, his complaint under the Redundancy Payments Acts also fails.

Resignation and redundancy