Complainant

Respondent

Anonymised Parties

A driver

A logistics company

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-00023798-001

05/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023798-002

05/12/2018

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

CA-00023798-003

05/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023798-004

05/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023798-005

05/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023798-006

05/12/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00023798-007

05/12/2018

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

CA-00023798-008

05/12/2018

The Complainant was employed as a driver with the Respondent from 21/11/2016 until 08/10/2018.

The Complainant’s gross weekly wage was €500.

This complaint was received by the Workplace Relations Commission on 5th December 2018.

The Complainant commenced employment as a driver with the Respondent company on 21st November 2016 and was dismissed from his employment without notice on 8th October 2018.

The Complainant’s claim is as follows:

·         Seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act 1977 (the 1977 Act) for his unfair dismissal from his employment on 8th October 2018.

·         Seeking adjudication by the WRC under Section 11 of the Minimum Notice & Terms of Employment Act 1973 (the 1973 Act) where he was dismissed without any notice, or payment in lieu

·         Seeking adjudication by the WRC under Section 27 of the Organisation of Working Time Act 1977 (the 1977 Act) for (i) a failure on the part of the Respondent to provide him with the necessary daily or weekly rest periods (not receiving 11 consecutive hours daily rest per 24 hour period and/or not receiving one period of 24 hours rest per week preceded by a daily rest period of 11 consecutive hours) (ii) a failure on the part of the Respondent to provide him with the required break periods (failing to give the Complainant 15 minutes where more than 4.5 hours were worked and failing to give the Complainant 30 minutes where more than 6 hours were worked) (iii) a failure to on the part of the Respondent to provide him with paid holiday / annual leave entitlement due and owing; and (iv) where the Complainant believes he was regularly forced to work more than the maximum permitted hours of work (exceeding the maximum average working week of 48 hours).

Included in the Complainant’s claim pursuant to the 1997 act, he also contends that the Respondent operated in contravention of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 [S.I. No 36/2012] and seeks adjudication under s.18 in light of the following contraventions:

a) the Respondent breached Regulation 5 in exceeded the working time limit

b) the Respondent breached Regulation 12 in failing to keep statutory employment records of the Complainant’s working patterns and breaks

c) the Respondent breached Regulation 11 in failing to tell the Complainant about working the regulations applicable to his sector.

Additional Claim (if there’s agreement that same is dealt with for the purposes of today’s hearing)

The Complainant claims in addition that the Respondent operated in contravention of S.3 of the Terms of Employment (Information Act) 1004 as amended (the 1994 Act) where he wasn’t provided with a contract of employment, or any written statement of his terms of employment.

The Respondent’s Preliminary Application

The Respondent contends that the Complainant’s claim under the 1977 Act must fail where they allege that the Complainant was not dismissed, but that he resigned.

The evidence of the Respondent is that after the Complainant attempted to change the dates for his holiday leave and same was refused, that he approached the Transport Manager of the Respondent Company on 27th September 2018 and said, “I will resign then” or “Okay I will resign”. The evidence adduced by the Transport Manager on 15th February last, was that he believed the Complainant had resigned and went about arranging a new driver. The Transport Manager said that he didn’t notify anyone on either the Thursday 27th September, Friday 28th September or Monday 1st October that he believed the Complainant had resigned. He stated that he believes he told someone in the Respondent company the following week but that he couldn’t recall exactly when.

The Transport Manager stated that he received text messages from the Complainant on Sunday 7th October 2018 about his work with the Respondent company for the following week and he acknowledged that he failed to reply. Then on 8th October 2018 when the Complainant turned up for work (as was his next working day after his week’s leave) he was told by a manager there that he no longer had a job with the Respondent company as he’d caused too much trouble for them, and that she’d been told by the Transport Manager that he’d resigned.

Dispute as to the fact of the alleged resignation

In the first instance, the Complainant entirely refutes the Respondent’s claim that he resigned on 27th September 2018.

The Complainant’s evidence as adduced on the last occasion was that he’d been trying to change his requested leave days to allow him the day off (on Friday 28th September) since the beginning of September. In or about the 5th September, the Complainant spoke to the Transport Manager, JD, and asked for the 28th September off work.   He was told that he couldn’t have it off because he was already off on 29th September and the following week for holiday leave. The Complainant told him he had flights booked and he told him to change his flight.   The Complainant tried to change his flights, but it was too expensive.

He spoke to the Transport Manager again approx a week later and was told that he’d try to do something about it. On 26th September he texted the Transport Manager to ask whether anything had been arranged and he was told no, that nothing could be done to facilitate him. Again, the Complainant pleaded with the Transport Manager as he had flights booked but was told no, and further that he’d already been told no by C, a manager at the Respondent Company.

On Thursday 27th September he went to the Transport Manager’s office to ask if anything had been done for him to allow him to take the following day off and he was told no, that it wasn’t possible. In frustration he exclaimed, “do I have to resign for one day off”. The Transport Manager said nothing in response but merely shrugged at the Complainant and he acknowledged this in his own evidence. The Complainant then said to the Transport Manager that he “could not work tomorrow” and went back to finish his work that day.

The Complainant didn’t show for work on Friday 28th September and he accepts that his decision was unauthorised and that he didn’t have this day booked off. He then took his holiday leave which was already booked from Monday 1st October to Friday 5th October.   On his return from his holiday he texted the Transport Manager on Sunday 7th October before he was due to start work again on the Monday. He asked the Transport Manager about whether he could continue with the Respondent company, knowing that he had taken a day off without leave and that the company wouldn’t be happy with him. His evidence under cross examination was that he thought that he might be “sacked” not that he resigned.

The Transport Manager simply ignored his text messages and when the Complainant arrived for work the following morning his name simply wasn’t on the list and he was told that he’d been replaced. He was told by the Transport Manager to go to speak to L (a manager at the Respondent company) at lunchtime. The Complainant went to speak to her at 1 o’clock and was told that he no longer had a job at the company because he caused too much trouble and that she had been told by the Transport Manager that he’d resigned from his job. The Complainant denied to L that he had resigned and continues to dispute this. The Complainant’s claim is that he was unfairly dismissed by the Respondent on 8th October 2018 and he believes that his dismissal was for taking an unauthorised day off on the previous Friday.

The invalidity of the alleged resignation

However, even if this tribunal accepts the evidence of the Respondent, that the Complainant had resigned from his position, on 27th September 2018 which is denied. It’s clear that the circumstances of this resignation were ambiguous that it did not represent his true intention and that any words spoken were spoken in the “heat of the moment”. Therefore, any alleged resignation, if accepted by this Tribunal as a resignation of fact, is in any event invalid as a resignation in law.

The applicable test in assessing the validity of a resignation is whether the words of resignation used by the employee taken in the context in which they are used, represented his or her true and considered intention, or whether they were a “heat of the moment” response to some occurrence.

The general rule is that where unambiguous words of resignation are used by an employee and are so understood by the employer, the employee thereby brings his or her employment to an end. Where a resignation is tendered “in the heat of the moment” especially when tendered orally and perhaps in the context of an argument or other interpersonal clash, an employer ought to allow the worker to rescind it.

These principles were developed by the Employment Appeals Tribunal for England and Wales in the case of Kwik-Fit (GB) Ltd –v- LIneham (“Lineham”)

“If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure … and indeed the intellectual make up of an employee may be relevant: see Barclay v City of Glasgow District Council [1983] I.R.L.R. 313. These we refer to as “special circumstances”. Where “special circumstances” arise it may be unreasonable for an employer to assume a resignation and to accept it forthwith.   A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer’s risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the “special circumstances” the intention to resign was not the correct interpretation when the facts are judged objectively”.

The above passage has been cited with approval in numerous cases in this jurisdiction. In the Employment Appeals Tribunal’s decision in Martin v Yeoman Aggregates Ltd (“Martin”) the Tribunal stated:

“It is a matter of plain common sense, vital to industrial relations, that either an employer or an employee, should be given an opportunity of recanting from words spoken in the heat of the moment. It could not be accepted as argued by the appellant, that once clear and unambiguous words are used the contract irreversibly comes to an end so that second thoughts can make no difference”.

The decision in Martin goes one step further stating that even if unambiguous words were used, which is certainly not the case in the instant matter, that second thoughts must be considered.

Lineham was applied again by the Equality Officer in Polonski v Cityjet Ltd

“Both are unambiguous that were a resignation is tendered “in the heat of the moment” especially when tendered orally and perhaps in the context of an argument or other interpersonal clash, an employer ought to allow the worker to rescind it”.

The Adjudication Decision Reference ADJ-00002049, the Adjudication Officer outlined that the onus is on employers in such circumstances to allow time for “heat of the moment” disputes to be resolved:

“it has been established that the onus is on the employer in those cases where the employee resigns “in the heat of the moment” to allow time for the situation to cool and to try and resolve issues, even if this means invoking disciplinary procedures if the employer deems the employee to have behaved in an unacceptable manner. In this case, I note the respondent made no effort to get the complainant to return and did not seek any resignation in writing.   In the circumstances, I find that the respondent did not behave reasonably, and I uphold the complainant’s claim”.

In Adjudication Reference ADJ-00007085 the Adjudication Officer cited the decision in Martin and considered that a reasonable employer would have afforded the Complainant an opportunity to recant her resignation in circumstances where it was offered “in the heat of the moment”:

“I find that the Complainant as acknowledged by her did quit but that the context was a heat of the moment dispute. In these circumstances, I consider a reasonable employer would have afforded an employee an opportunity through a formal meeting with representation to set out her version of events and potentially recant the resignation. I believe these principles are consistent with the provisions of [2004] E.L.R. 319 and Martin v Yeoman Aggregates Ltd. Accordingly, I have concluded that the Complainant was denied fair procedures and was unfairly dismissed”.

In the instant case, the Transport Manager’s evidence is that during a heated encounter with the Complainant, following an argument about whether he could take an unscheduled day off, he believed that the Complainant resigned, and following this he (i) failed to reply verbally in any way to him on 27th September 2018 (ii) told no one else at the Respondent company about the alleged resignation until the following week (iii) never attempted to contact the Complainant after their heated encounter on 27th September 2018 (iv) even failed to reply to the Complainant when the Complainant contacted him by text message a week later in anticipation of working the following Monday.

Therefore, even if the employer’s evidence as to the words spoken by the Complainant allegedly indicating his resignation are accepted, its abundantly clear the employer (or the employer’s servant or agent) was on notice that further inquiry was desirable to see whether the resignation was really intended, and could properly be assumed: either at the time of his alleged resignation on the 27th September, at the time of the subsequent text messages on 7th October or when he showed up for his next working day on 8th October. The employer (or the employer’s servant or agent) ignored the ambiguous nature of the alleged resignation and also ignored the Complainant from the 27th September onwards at its own risk, where it was clearly unreasonable to do so.

The case law quite clearly states that the onus is on the employer to have allowed time for the situation to cool and to try and resolve issues, even if this meant invoking disciplinary procedures if the employer deemed that the employee behaved in an unacceptable manner by taking the unauthorised day off. In the instant case, the Respondent made absolutely no effort to get the Complainant to return, or even contact the Complainant, and did not seek any resignation in writing.

Therefore, in these circumstances, even if the Tribunal accepts the Respondent’s evidence that the Complainant resigned (which is not accepted by the Complainant) this Tribunal must find that the Respondent did not behave reasonable and unfairly dismissed the Complainant on 8th October 2018.

The Minimum Notice and Terms of Employment Act 1973

The Complainant is seeking adjudication by the WRC under Section 11 of the 1973 Act where he was dismissed without any notice or payment in lieu.

The Organisation of Working Time Act 1997 and the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 [S.I. No 36/2012]

The Complainant is seeking adjudication by the WRC under Section 27 of the 1997 Act for (i) a failure on the part of the Respondent to provide him with the necessary daily or weekly rest periods (no receiving 11 consecutive hours daily rest per 24 hr period and/or not receiving one period of 24 hours rest per week preceded by a daily rest period of 11 consecutive hours) (ii) a failure on the part of the Respondent to provide him with the required break periods (failing to give the Complainant 15 minutes where more than 4.5 hours were worked and failing to give the Complainant 30 minutes where more than 6 hours were worked) (iii) a failure to on the part of the Respondent to provide him with paid holiday / annual leave entitlement due and owing; and (iv) where the Complainant believes he was regularly forced to work more than the maximum permitted hours of work (exceeding the maximum average working week of 48 hours).

The Complainant’s case will be that at times he worked 10 to 12 hours per day and sometimes up to even 13 to 14 hours, without any overtime pay. His breaks were different every day and lasted from 30 to 60 minutes up to 3 to 4 hours depending on waiting times for the next delivery. However often during those breaks the Complainant would have to use his break to drive back to the warehouse to be in time for his next collection or would have to remain on call for further instructions and felt that he could not always rest during his break period. The Complainant believes that his morning route could often be busier than other drivers and that his van could be overloaded.   The Complainant asked for his delivery loads to be decreased but was told by the Transport Manager that he was “a strong Romanian guy and that he was capable to do more”. The Plaintiff believes that the extent of his working obligations to include the early starts, late finishes and long shifts impacted upon his health.

In or about January 2017, the Complainant had an appointment with his doctor as he was feeling unwell and after the consultation his doctor made arrangements for him to attend for blood tests. The Complainant asked for a day off work to allow him to attend for the scheduled blood tests and same was refused. He was afforded the morning off but was told that he had to be in work by mid-day that day. His appointment was at 10 am but he was waiting until approx 1pm to be seen. The Complainant received text messages from the Transport Manager while at his appointment telling him he had to come into work. The Complainant was told to go home and rest after his blood tests, but he duly arrived into work at approximately 2.15 pm that day despite feeling unwell.

The Complainant was not provided with a record of his working pattern or breaks and was not told about the applicable EU regulations.

The Complainant therefore contends that the Respondent operated in contravention of the European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 [S.I. No. 36/2012] and seeks adjudication under S.18 in light of the following contraventions:

The Respondent breached Regulation 5 in exceeded the working time limit

The Respondent breached Regulation 12 in failing to keep statutory employment records of the Complainant’s working patterns and breaks

The Respondent breached Regulation 11 in failing to tell the Complainant about working the regulations applicable to his sector

SI No 36/2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 (“the 2012 Regulations”) transposed Directive 2002/15/EC of the European Parliament and of the Council of 11th March 2002 into Irish Law. Regulation 3 sets out their scope as follows:

“These Regulations apply to –

a) mobile workers who are employed by or who do work for one or more undertakings established in a Member State, and

b) self-employed drivers

participating in road transport activities to which either the Council Regulation or the AETR applies”.

The Respondent in (i) exceeding the working time limit (ii) failing to keep statutory employment records and (iii) in failing to inform the Complainant of the applicable Regulations, breached the 2012 Regulations as well as the terms of the 1997 act. Claims under the 2012 Regulations were allowed in similar type cases, namely Adjudication Reference ADJ-00012702 and Adjudication Reference ADJ-00011220 both of which concerned delivery vans.

The proper recording of working hours is also an important requirement under health and safety obligations, particularly for those involved in driving duties in accordance with S. 27(3) (c ) of the 1997 act.

Conclusion

The Respondent company breached the provisions of the 1977 Act in dismissing the Complainant without any fair or proper procedures on 8th October 2018. The Respondent’s preliminary objection must fail in the circumstances as set out above. It follows that the Complainant’s claim pursuant to the 1973 Act is therefore well founded.

The Complainant’s claim pursuant to the 1997 Act and the associated 2012 EU Regulations are also well founded, as is his additional claim pursuant to the 1994 Act, if same is dealt with for the purposes of today’s hearing.

Relevant matters regarding the Complainant’s claim for compensation under 1977 act.

The Complainant was paid a gross wage of €500 (€433.45 net pay) for the weeks he worked Monday to Friday (approx 44-45 hours) and was paid a gross wage of €570 (€483.31 net pay) for the weeks when he worked Monday to Sunday (approx 52-53 hours).

However, regarding the Complainant’s claim for compensation under the 1977 act, the Complainant was proactive in securing alternative employment and started working again on 18th October 2018 in a similar type job as a delivery driver. He currently earns a weekly wage in excess of his previous salary and in those circumstances the Complainant’s claim for compensation under the 1977 Act is limited to 4 weeks’ pay.

The Complainant also claims compensation under the 1973 Act, the 1997 Act and the 2012 Regulations.

Introduction

This submission, on behalf of the Respondent, relates to complaints made to the Workplace Relations Commission, by the Complainant on December 5th, 2018.

The principal complaint was lodged under the Unfair Dismissal Act, 1977, with further complaints lodged under the Minimum Notice and Terms of Employment Act, 1973, and the Organisation of Working Time Act, 1997.

The Complainant was employed by the Respondent from November 21st, 2016, until the termination of his employment with effect on October 5th, 2018.

He was employed as one of 100 Delivery and Collection Drivers based at the Respondent’s Dublin Depot.

The Respondent operates a specialised service to (type of business redacted) businesses and organisations; Monday to Saturday, each week.

The service is operated over approximately 90 defined routes; Monday to Friday, and circa 50 routes on Saturday.

Drivers’ training includes specialised training in Goods Distribution Practice (GDP), and Cold Chain delivery. In addition, each driver is trained on specific routes, as each route is designed to meet the particular needs of the customers allocated. These needs include ‘out of hours’ delivery and collection i.e. to premises where customers are not present, consequently drivers are entrusted as keyholders/code holders. Because of the nature of the products/goods handled, and in the context of the businesses to which service is provided deliveries are time critical. Indeed, this aspect of service; time criticality. is explicitly included in contracts for service.

Complaint under the Unfair Dismissals Act 1977

The Complainant’s claim under the Unfair Dismissals Act cannot be sustained as there was no dismissal.

The Complainant resigned, and on this basis, and this basis alone, his employment with the Respondent terminated with effect on Friday, October 5th, 2018.

Circumstances of the Complainant’s Resignation

(i)                  Application for Annual Leave

The circumstances in which the Complainant verbally communicated his resignation to the Respondent’s Transport Manager were as follows;

On July 27th, 2018, the Complainant applied for one week’s annual leave; commencing Monday October 1st, to Friday October 5th, 2018.

His application was made in line with Company policy, and in the prescribed manner i.e. in writing on the mandatory Leave Application Form. This form is completed in a printed duplicate book with an individual serial number allocated to each application, for ease of reference.

(ii)                Week Leading to Leave

On Tuesday, September 25th, 2018, the Complainant went to the administration office in the Dublin Depot and approached the Administrator who had approved his leave application. He stated that he now had to change his leave. He needed to begin his leave that coming Friday, September 28th, as he had booked cheaper flights to his holiday destination and was scheduled to fly out with his family.

He was advised that this change would not be possible as others were due leave on that day, and that there had been bereavements and illness which necessitated further absence.

On Wednesday September 26th, 2018 the Complainant contacted the Respondent’s Transport Manager by text message (Appendix 2);

At 11.27 am he wrote:

Hello J!! Can you fix day off Friday 28 Sept?

The Transport Manager replied at 11.32 am:

Hi C. We said that there are too many drivers on holiday already. Sorry.

The Complainant responded at 11.38 am: Please! I have plane tickets on Friday morning 6.00am The Transport Manager replied at 11.40 am:

C. C already told you that there were already other drivers on their holidays that day

On the afternoon of Thursday September 27th, 2018, the Complainant approached the Transport Manager, asking; What have you done about Friday?

The Transport Manager replied that he had already been told that it would not be possible to give him leave.

The Complainant replied; I will resign then. This statement to the Transport Manager was also heard by a colleague. He noted this in his diary.

(iii)              Failure to Report for Work

The complainant was scheduled to start work at the Citywest Depot at 05.00 am on Friday September 28th, 2018. He did not report for work.

(iv)              Further contact

On Sunday, October 7th, 2018 the Complainant contacted the Transport Manager by text message, as follows;

1.47 pm   Hello J! I can continue with the company?

And again;

5.09 pm   Hello J! Excuse me I disturb you. Can you tell me if I can continue with the company? Thank you!

The Transport Manager did not reply.

On Monday, October 8th, 2018 the Complainant approached the Transport Manager, in the Dublin Depot at approximately, 07.15 am.

He said that he wished to come back to work. He asked if he could.

The Transport Manager responded by saying that he (the Complainant) had resigned, to which the Complainant replied; I know, and again asked to have his job back.

Having been told that this was not possible, the Complainant waited to speak with the General Manager. He spoke to her, and again asked for his job back. He said he liked his work and wanted to come back.

He was again told that he had resigned, and he acknowledged this, to her.

(v)                Additional Context.

The Complainant previously failed to comply with attendance for duty on return from authorised annual leave.

On that occasion, he returned from leave on the afternoon of Monday, November 13th, 2017, even though his application to extend his leave to include the morning of November 13th had been declined.

He defied direction from his manager and failed to report for his morning run.

He was spoken to about this, at the time, and was not paid for non-attendance.

It must be emphasised that the management of leave, moreover the management of attendance, sufficient to run the Respondent’s business model, is a critical business component.

As explained earlier the Drivers that are deployed on the Respondent’s services must be specially trained due to the particular nature of the products and goods transported. In addition, the nature of these products and goods is such that there is a particular time criticality involved. This is added to the fact that service is routinely provided ‘out of hours’ when Drivers access customers’ premises as key/code holders. As well as these features, route knowledge and customer familiarity are particularly important.

Accordingly, it is simply not possible to draft in replacement drivers to cover short term or short notice contingencies. The Respondent must rely on a finite inhouse trained cohort of Drivers to cover all services.

As a result of this essential imperative scheduled leave is managed in a structured manner, through formal written application in a period appropriately in advance of leave, and in a situation where there are well established, and well communicated norms.

For example;

Drivers leave entailing at least one full week cannot be extended consecutively by days, or part weeks;

At the start of each year Drivers are reminded by written notice, to book their leave as early as possible, with ‘blocked’ leave requiring at least one month’s advance notice and application.

A maximum of 4 Drivers absent on authorised leave on any day is the established

threshold

The 2018 ‘Holiday Notice’ issued to staff explains and advises what is necessary to avoid negative impact on services, and to enable staff to plan holiday time off (Appendix 4)

It is particularly important to note, in the instant case, that the staff were advised ;

**Please do not book any holidays prior to dates being approved to avoid disappointment**

This important point reflects the detailed conditions applying to annual leave arrangements contained in the Respondent’s Employee Handbook.

IN SUMMARY

The Complainant was not dismissed.

He resigned.

He was very well informed about the requirements in respect of leave approval, and the process of leave approval.

His decision to absent himself without authorisation was very clearly premeditated.

He contemplated his options well in advance, and very clearly chose to resign as an alternative to complying with his duty to attend for work.

His resignation was unambiguous in terms of; his statement to the Transport Manager on Thursday September 27th, 2018; his non-attendance on Friday September 28th, 2018, and his subsequent pleadings to be taken back, having acknowledged more than a week later that he had resigned rather than attend for work.

For the reasons stated, and the facts outlined, the Complainant must fail in his claim under the Unfair Dismissals Act.

Complaint under the Minimum Notice & Terms of Employment Act, 1973

There is no basis for this claim, as the Complainant did not have his employment terminated by the Respondent.

Complaints under the Organisation of Working Time Act 1997

(i)                  Annual Leave Entitlement

The Complainant received his full annual leave entitlement up to the date of leaving his employment.

His last year’s leave was availed of as follows;

March 5th to March 9th, 2018                        : 5 days

July 2nd to July 6th, 2018                                               : 5 days

October 1st to October 5th, 2018                : 5 days

This totals 15 in respect of the three quarters of the year worked (3/4 X 20 days entitlement)

(ii)                Daily Breaks, Daily Rest, and Weekly Rest

The Complainant received his full entitlement to breaks and rest.

His role required two ‘runs’ on designated Routes each day, Monday through to Friday.

He covered an allocated morning run as an integral part of his work routine, and on the basis of being personally allocated Route No. 808.

His afternoon runs were allocated based on Route requirements which could vary day on day and week on week.

For the purpose of payment Route 808 is allocated 5.15 hours, including loading, delivery and collection i.e. 26.15 hours per week.

This allocation is built into the pricing model in the Respondent’s business and is set at a level to provide effective service, and to provide the driver with adequate opportunity for a minimum half hour break, to be taken at a time and place, at the driver’s discretion.

All Route times, including those undertaken in the afternoon, are similarly allocated i.e. considering the requirement for breaks, to be taken at a time and place, at the driver’s discretion.

Daily, the Complainant had a break of between 2 and 3 hours between morning and afternoon runs, and typically took this break at his home.

He routinely worked on Saturday mornings, for which he volunteered himself.

No work was required on Saturday afternoons.

On Saturday morning last delivery would be circa 11.00 am, and none on Sundays, affording a weekly rest period of circa of 37 consecutive hours.

His start time was 04.50 am on Monday mornings, resulting consecutive rest hours totalling circa 42 hours from Saturday finish, to Monday resumption.

In any appraisal or accounting for hours of work it should be understood that payment to the Complainant, as it was to all of his driver colleagues, was based on time allocated to prescribed Routes, and within the time allocated to Routes there was, and is, a built in capacity for break time, to be availed of predominantly as the individual driver might decide.

Consequently, time paid for did not, and does not necessarily align directly with time worked.

In addition, it should be understood that time recorded in respect of GPS data capture does not align directly with time worked, for example, and as in the case of the Complainant, the Respondent’s vehicle was made available for personal use, including travel to and from work.

In Summary

The Complainant was afforded his full entitlement to annual leave.

The Complainant was afforded his full entitlement to breaks and rest.

Breaks and rest are key factors taken into account in the construction of all Route time allocations.

Reliance on paid time for, as a definitive measure of working time in the context of how time is allocated (Route basis), is unsound.

Overall Summary

The Respondent is not in breach of the Unfair Dismissals Act 1977, as the Complainant resigned from his employment.

In this context no issue arises in respect of Minimum Notice; the Respondent did not terminate the Complainant’s employment.

The Complainant was afforded his full entitlement to annual leave related to his employment with the Respondent.

The Complainant was afforded his full entitlement to breaks, and rest during the full tenure of his employment.

CA – 00023798 – 001. Complaint referred under section 8 of the Unfair Dismissals Act, 1977.

The Complainant is relying on the case of Kwik – Fit (GB) and Lineham [1992] ICR183

This complaint was heard by the Industrial Tribunal who found in favour of the Complainant and this decision was then appealed by the Respondent to the Employment Appeals Tribunal of England and Wales.

The resignation had taken place in a heated moment, and it was not conclusive. An employer may not be able to rely upon a resignation made by an employee which had obviously been made in the heat of the moment.

Wood J stated ‘As we have said the industrial members take the view that the way in which this industrial tribunal have expressed themselves puts too high a burden upon employers. If words of resignation are unambiguous then prima facie an employer is entitled to treat them as such, but in the field of employment personalities constitute an important consideration. Words may be spoken or actions expressed in temper or in the heat of the moment or under extreme pressure (‘beingjostled into a decision’) and indeed the intellectual make-up of an employee may be relevant: (and he gives a citation). These we refer to as `special circumstances. Where `special circumstances’ arise, it may be unreasonable for an employer to assume a resignation and to accept it forthwith. A reasonable period of time should be allowed to lapse and if circumstances arise during that period which put the employer on notice that further inquiry is desirable to see whether the resignation was really intended and can properly be assumed, then such inquiry is ignored at the employer’s risk. He runs the risk that ultimately evidence may be forthcoming which indicates that in the `special circumstances’ the intention to resign was not the correct interpretation when the facts are judged objectively’.

The Employment Appeals Tribunal (England & Wales) in a reserved decision given on 28th November 1991 dismissed the appeal made by the Respondent.

In this instant case I find that the Complaint as presented is well founded and that the Complainant was unfairly dismissed. The Respondent should have sought clarification from the Complainant on his return in relation to his ‘resignation’ instead they seized the opportunity of this resignation.

CA- 00023798 – 002 – Complaint referred under section 27 of the Organisation of Working Time Act, 1997. Daily Rest Period.

The Respondent emphatically states that the Complainant received his full entitlement to breaks and rest.

Section 27 (6) of the Organisation of Working Time Act,1997 states as follows:

(6) A complaint shall be presented by giving notice thereof in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

The complaint as presented does not contain any particulars and therefore I have no alternative but to find this complaint not to be well found – it therefore fails.

CA- 00023798 – 003 – complaint referred under section 11 of the Minimum Notice and Terms of Employment Act, 1973.

The Complainant if successful with his claim under section 8 of the Unfair Dismissals Act, 1977 would have an entitlement to two weeks’ notice (section 4 of the Act).

CA- 00023798 – 004 - Complaint referred under section 27 of the Organisation of Working Time Act, 1997. Breaks.

The Respondent emphatically states that the Complainant received his full entitlement to breaks and rest.

The complaint as presented does not contain any particulars and therefore I have no alternative but to find this complaint not to be well found – it therefore fails.

CA- 00023798 – 005 - Complaint referred under section 27 of the Organisation of Working Time Act, 1997. Weekly Rest Periods.

The Respondent emphatically states that the Complainant received his full entitlement to breaks and rest.

The complaint as presented does not contain any particulars and therefore I have no alternative but to find this complaint not to be well found – it therefore fails.

CA- 00023798 – 006 - Complaint referred under section 27 of the Organisation of Working Time Act, 1997. Required to work more than the permitted number of hours.

The Respondent provided the hearing with an extensive listing of weekly hours worked by the Complainant. These lists show averages of 42.77 and 45.39 hours per week for 2017 and 2018.

There has been no breach of legislation in relation to weekly working hours.

CA- 00023798 – 007 - - Complaint referred under section 27 of the Organisation of Working Time Act, 1997. I did not receive my paid holiday /annual leave entitlement.

The Respondent asserts that all annual eave entitlement was given to the Complainant.

The Complainant has provided no specific details on the Complaint form.

The Complaint is not well founded and fails.

CA- 00023798 – 008 – complaint referred under section 11 of the Minimum Notice and Terms of Employment Act, 1973. “I did not receive all my rights during the period of notice”.

No specific details were provided on the complaint form. I do not know what right may be referred to.

The subject of payment in lieu of notice is addressed as part of CA- 00023798 – 003

Complaint CA- 00023798 – 008 is not well founded and fails.

The Complainant’s submission also included a reference to another complaint under the Terms of Employment (Information Act) 1994 as amended (the 1994 Act). The Respondent was not on notice of this complaint therefore I have not included in with these complaints.

The complaints referenced CA – 00023798 – 001 and CA – 00023798 – 003 are well founded.

CA – 00023798 – 001 – I award the Complainant compensation of four weeks’ pay - €2,000 under the Unfair Dismissals Act, 1977.

CA – 00023798 – 003 – I award the Complainant compensation of one weeks pay - €500 under the Minimum Notice and Terms of Employment Act, 1973.

All other complaints i.e. CA – 00023798 – 002, CA – 00023798 – 004, CA – 00023798 – 005, CA – 00023798 – 006, CA – 00023798 – 007 and CA – 00023798 – 008 are not well founded and therefore fail.

Awards of compensation should be made within 42 days from the date of this decision.

Unfair Dismissal, Organisation of Working Time Act, Minimum Notice.