Complainant

Respondent

Anonymised Parties

A Truck Driver

A HGV Delivery Company

Representatives

Ray Ryan B.L. instructed by Anne Barrett, Hussey Fraser Solicitors

Richard Bennett Bennetts Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020104-001

29/06/2017

The complainant was employed by the respondent as an HGV driver from 10th March 2014 until the 5th January 2018. He was paid €504 per week net. He is claiming that he was dismissed contrary to the terms of the Unfair Dismissals Act. The respondent denies that the complainant was dismissed and submits that he left the employment of his own accord.

The complainant said that he was employed by the respondent for 4 years and there were no disciplinary issues during the course of his employment. He said that on the 4th of January 2018 he received a telephone call from the respondent inviting him to a meeting the following morning concerning a phone bill. It was a company mobile phone and the respondent paid the bill.

The complainant said that he met the respondent and the 5th of January 2019, and they discussed the phone bill. The respondent said to him that he had spoken to him previously about the phone usage and after showing him the bill he told him that his p45 would be sent to him the following Monday. 

The complainant said that the meeting took place in the cab of the respondent’s lorry where he showed him a copy of the telephone bill and then told him he was dismissed. He said that the respondent told him that his p 45 would be sent to him the following Monday. The complainant said there never had been any issue about the telephone bill up to this time. He understood he could use the mobile phone for private purposes and he said the level of the bill was never raised with him by the respondent. 

After he was dismissed he handed in the company property and got into his car and drove home.   He said that the respondent knew that he was not going to work that Friday. He got his P 45 in the post about 10 days later. The complainant denied that he left the job to take up a job with another company. He said that he got a job with this company 4 weeks later.

The respondent said that the complainant worked for him for 3 1/2 years as a heavy goods vehicle driver and they had a very good relationship. He supplied mobile phones to the drivers for work use only and he paid the bills. The respondent said that he spoke to the drivers, including the complainant, in October 2017 and again in November 2017 about mobile phone usage for private purposes and he asked them to keep an eye on the usage as the bills were very high. In early January 2018, he noticed that he received a bill for one phone which was over €900.

He contacted the phone company and he was told that the bill was not an error and that 32 hours was spent on the phone to one particular number in that month. The mobile phone was assigned to the complainant and he contacted him to arrange a meeting to discuss the bill. He spoke to him on the 5th of January 2018. He showed the complainant the phone bill and he told him it was a very serious matter as he had been on the phone to one particular number for 32 hours in that particular month. He asked the complainant to think about it and to let her know what was going to do about the phone bill. He understood that the complainant was going off to do his work and he said to him that he would talk to him later about the phone bill. About an hour and a half later, he got a telephone call from the base controller in the company for whom the respondent was contracted to deliver goods for, saying that the complainant had handed in his PDA machine and he told the staff there that he had quit, and he left the office. The respondent said that the complainant did not contact to let him know that he was not driving the truck that day and doing the delivery. He said he understood that the complainant left the employment as he went to work for another truck company that same day. The respondent said that all the company property including the mobile phone, the keys and the fuel card were left in the truck.

The respondent said that he telephoned the complainant, but he got no response. He didn't hear anything from the complainant, so he texted him to tell him that his P45 will be put in the post and as he had heard that he had left employment. He sent out the P45 the following week. The respondent denies that he dismissed the complainant. He said that he believes that the complainant wanted to leave the employment as he had handed in his notice in October 2017 saying that he was going to work for another company. This happened after he issued a warning to the drivers about the use of mobile phones in October. The respondent said that he allowed the complainant to withdraw his notice.

The respondent said that because of the complainant walking off the job he lost the delivery contract for that HGV delivery truck.

The dismissal of the complainant is in dispute. The complainant submits that he was dismissed on the 5th January and the respondent states that he left his company to take up another job after he raised the mobile telephone with him.

Section 1 of the Unfair Dismissals provides the following definition of “dismissal”:

“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”

There was a complete conflict of evidence in relation to what happened at the meeting on the 5th January 2018, so I have examined the evidence to see which version of events I found to be more credible. I note that the respondent runs a small haulage company with a small number of HGV trucks, one of which he drives himself.  He is contracted to another company (Company X) to deliver goods on behalf of that company. The trucks are loaded in the warehouse of that company. I note that as a result of the complainant leaving that morning without delivering the goods that the respondent lost the contract as a result. I am of the opinion, that if the respondent intended dismissing the complainant that day, he would not have allowed the truck to have been loaded with the goods, risking losing the contract.  Likewise, I note that it was Company X who informed the respondent that the complainant had left the employment. It is my view, that if the respondent intended dismissing the complainant that morning, he would not have left the warehouse to make his deliveries without first informing Company X of the dismissal and or making alternative arrangements to have they loaded truck delivered. Having weighed up the evidence, I am satisfied on the balance of probabilities, that the respondent’s evidence is more credible than the evidence tendered by the complainant. For these reasons I am satisfied the complainant was not dismissed, but that he left the employment for his own reasons.

I find that the complainant was not dismissed and his claim under the Unfair Dismissals Act fails.

Unfair Dismissals Act, Dismissal in dispute.