Complainant

Respondent

Anonymised Parties

A driver

An Employer

Representatives

David Fagan Business Legal

Kevin Langford Arthur Cox

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030613-001

31/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00030613-002

31/08/2019

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

CA-00030613-003

31/08/2019

At the outset the complainant withdrew complaint CA-00030613-002.

The respondent is a limited company incorporated since 1981 employing over 60 people and is involved in the manufacture of self-adhesive labels. The complainant worked for the respondent as a driver (providing his own van) involved in the delivery of supplies to various clients in the Eastern region.

It is common case that there was a meeting to discuss reorganisation of the company’s daily operations on 20 November 2018, which dealt specifically dealt with the daily delivery operations.

The complainant submitted that he was called to the 20 November meeting and told that his role was redundant and that a number of alternatives were suggested to him – the first a self-employed provider of delivery services was not acceptable to the complainant.

The second option of or working on the packing and slitting machine as well as performing general packing duties in the warehouse was not acceptable to him as he suggested that he was not physically able for such duties due to a recent operation on his back and his neck.

The third option open to him was driving a large truck for the respondent. The complainant submitted that this was not acceptable to him in that he although he had a licence for large trucks, he had driven only vans since he got his licence and that once again this was too physical a job for him to do.

The complainant sought a redundancy package from the respondent, but this was refused.

The complainant submitted that as the alternative positions offered to him involved entailed a substantial loss of earnings, he felt he was left with no choice but to look for an alternative position with another company and to resign his employment because of the unreasonable actions of the respondent.

The complainant found an alternative position entirely due to his own effort and handed in his notice in or around 14 March 2019.

The complainant submitted that the respondents offers of alternative employment were unsuitable

The respondent submitted that as early as 2017, it became apparent that the complainant was being significantly under-utilised. This situation arose as the number of small deliveries to clients has started to dwindle. The respondent began to look at other ways of occupying the complainant’s time. The respondent submitted that this situation as was could not be allowed to continue.

At the meeting on 20 November, a number of options were raised with the complainant: the option of becoming self-employed and tendering his business was raised but the complainant indicated that he didn’t wish to become self-employed. The option of working on the processing machines on the operations side was proposed but was not acceptable to the complainant. The option of continuing deliveries but including larger clients was raised.   It was indicated to the complainant that the respondent was prepared to invest in a flat bed truck to make these deliveries. The respondent submitted that this suggestion was made as the complainant has the necessary licence to drive such a truck.

The complainant raised the option of becoming redundant but was informed that this was not a redundancy situation as the complainant also had vacancies on its operations side.   A further meeting was held where the complainant indicated that he was uninterested in becoming self-employed or operating a machine. Thereafter the respondent re-visited the option of purchasing a truck and the terms and conditions of this option were explored further. No salary was set but the respondent indicated that it would pay the going rate. The complainant once again indicated that he was not interested but raised the option of redundancy. It was indicated to the complainant that this was not a redundancy situation as the respondent would be required to hire another driver to do the deliveries.

There were ongoing discussions between the respondent and the complainant’s union over the following period. The complainant indicated that he was happy to continue assisting in the stores when he was not delivering. The respondent actively investigated the possibility of purchasing a new truck, checking with its main customers as to what would be acceptable.

The respondent submitted that a truck had been selected and that they were considering the financial implications of such a purchase. The complainant tendered his resignation orally on 13 March giving one week’s notice.

The respondent submitted that the complainant tendered his resignation before all options had been sufficiently explored.

CA-00030613-001

The complainant resigned his employment on or around 13/14 March 2019. This fact is not in dispute; accordingly, the purported dismissal element falls into the Section 1(b) of the Unfair Dismissals Act 1977 states, inter alia, that

“dismissal”, in relation to an employee, means—

( 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 are two operative elements in this definition of particular relevance in the instant case. The conduct of the employer and whether it was reasonable of the employee to tender his resignation. It is common case that the respondent indicated to the complainant that the current structure of his employment had to change.   It was also accepted by both parties that the complainant was under-utilised in his role and that three options were offered to the complainant (including two sub-options for operating machinery). The complainant submitted that these options were not reasonable options for the complainant.

It is accepted that the first option of self-employment was dismissed out of hand by the complainant. I am satisfied that it in all the circumstances of the case, it was not reasonable to expect the complainant to accept this option.

The option of operating machinery was also dismissed as the complainant suggested that it had been too long since he had occupied a similar type role and that the advent of computerisation in the intervening period rendered this too difficult for the complainant. There was also a suggestion that the salary level for this role would have entailed a reduction in salary for the complainant. Evidence was given by both parties as to the level of salary enjoyed by the respondent option and there as some dispute as to the complainant’s current salary. Having considered the evidence from both parties, I am satisfied that the salary of the machine operator option was the same as the salary for the complainant’s current role and although the complainant would not receive mileage for his daily journeys the remuneration was the same. As to the role itself, the complainant submitted that the duties would be too onerous to take on given that he had previously had an operation on his neck and back. However, evidence was provided as the current duties performed by the complainant which included loading and unloading a van manually both at the warehouse and at client premises. In the circumstances, and in the absence of a detailed comparison of the roles, on the face of it I am satisfied that it was reasonable to offer this position as an alternative option for the complainant.

The third option, that of driving a larger truck which would be loaded and unloaded with the aid of a forklift truck, was dismissed by the complainant as being too onerous but it was suggested by the respondent that this was less onerous than the complainant’s current role. This was not refuted by the complainant. It was suggested by the complainant that this role would entail a reduction in salary but the evidence given at the hearing was that the salary for this role had yet to be established but that assurances were given to the complainant that it would be at the industry rate.

It was also suggested by the complainant that he did not possess the requisite skills for the third option in that he had not driven a larger truck since undertaking his driving test (although it was acknowledged that he possessed a licence to do so) and submitted the case of a Cleaner v Food Distributor (ADJ-00019728) in support of this contention. In that case I note that the Adjudication Officer found that the complainant did not possess the skills to undertake the alternative provided and therefore it was not suitable. In the instant case, the complainant does possess the skills, (a driving licence) even if his practical experience with such vehicles was not particularly recent, he still holds the licence and has not relinquished same. I am not persuaded by the complainants account that this option was unreasonable.

It was suggested by the respondent that the complainant had pre-empted its considerations in regard to the third option and had tendered his resignation before the elements of this option had been adequately fleshed out. The complainant refuted this. However, on balance I prefer the respondents contentions and I find that the complainant did not explore his options fully with the respondent before tendering his resignation

At the hearing, the complainant submitted two medical certs relating to his neck and back operations. It was accepted that these had not been provided to the respondent previously.   However, I note that the medical certificate states that the Doctor was ‘happy for him to return to work as a van driver, however he has been advised against heavy lifting as part of his job’. Accordingly, I find that this has no bearing on him working as a driver.

Having regard to all the evidence and to the foregoing, I am satisfied that the respondent offered a number of suitable alternative roles to the complainant. In particular I note that he was employed as a driver and one of the alternatives was to work as a driver. I do not find that it was reasonable for the complainant to refuse the alternative offers of employment. I therefore find that no dismissal can be inferred, and the complainant is not entitled to succeed in this element of the complaint.

CA-00030613-003

Section 7(2) of the Redundancy Payments Acts 1967 states, interalia, that

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 concerned the 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,

The complainant submitted that a dismissal took place and that he was dismissed by reason of redundancy in that his dismissal was attributable mainly to the fact that the respondent employer had ceased, or given the expectation that it wold cease, to require the complainant to carry out work of a particular kind, namely van driving, in the place where the complainant was employed, or that such a requirement to carry out work of that particular kind had diminished, or was expected to diminish.

I note that both parties submitted the contract of employment dated in 2016 and signed by the complainant. This contract states that the complainant’s current position is “driver”.

The respondent submitted that following consideration of its business practices regarding the under-utilisation of the complainant it looked at restructuring the business and offered the complainant a choice of roles, one of which was a role as a driver of trucks. The respondent also submitted that there was no redundancy situation in that the complainant was employed as a driver and the respondent had an ongoing need for a driver.

I am satisfied that at least one of the offers of alternative employment was suitable, namely that of driver wherein the complainant would drive a flat-bed truck. I note that this alternative does not refer to articulated trucks but rather to a 7.5 tonne truck and that the complainant was aware of this alternative.  

Following consideration of all the evidence and of the foregoing, I find that no redundancy situation existed.

CA-00030613-001

Having considered this matter and all the evidence presented to me, I do not find that a dismissal situation existed nor that a constructive dismissal situation existed. Accordingly, my decision is that the complainant has not established facts from which dismissal can be inferred and this element of the complaint fails.

CA-00030613-003

Having regard to the evidence presented to me, I am satisfied that although the need for a small van driver was diminishing, the need for a driver was not.   Accordingly, my decision is that a redundancy situation did not exist and that the complainant is not entitled to succeed.

Unfair dismissal, redundancy, prima facie case.