Complainant

Respondent

Anonymised Parties

A Lorry Driver

A Limited 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-00030213-001

13/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00030213-002

13/08/2019

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-00030213-003

13/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00030213-004

13/08/2019

The complainant was employed with the Respondent for approximately four years between 2005-2009 but I he let go as a result of the Economic downturn. He took up employment again with the Company in or around June, 2017. He was employed as a Lorry Driver. His hours of work varied from 39 - 46 per week.

On Thursday the 18th day of April,2019 the owner asked him if he would go an collect an 18 tonne load the following morning. The complainant knew that the lorry he was asked to drive was 15.5 tonne. The maximum weight permit is 32 tonne (including the weight of the lorry). The complainant queried the weight of the load and when he did he was told “being back 18 tonne or go and get a new job”

The complainant was unhappy about it but reluctantly agreed. The following morning, he collected the load and dropped it off as requested. He then called Mr. EG to ask what he should do next. He was given a number of tasks to do. He did them and when he was finished he returned to the yard. Mr EG was waiting there for him when he pulled up. He told him that he had to let me go as he couldn't have anyone telling him what they were going or not going to carry. He told him not to come in the following week and that he would make sure he got his weeks wages.

The following week, 22nd April, the complaint contacted the respondent to see if he should come into work. He was told not to.

The Complainant first commenced employment with the Respondent on the 27th of June, 2005. He   worked with Respondent, for almost four years. Unfortunately, due to the economic down turn the Respondent had to make the Complainant redundant. That was in May of 2009.   The Respondent has had to take on and let go several employees over the years. When he was making the complainant redundant in 2005 he simply had an informal conversation with him to explain the situation. The Respondent is a family run business which has been in operation for nearly 40 years.   The employees and suppliers are all friends and neighbours.

The Respondent continued to trade through the recession, but it was extremely difficult. The complainant’s solicitors can confirm this. They have acted for the Respondent on a few occasions when the company was in difficulty. Despite the very difficult financial situation the respondent did survive. They have a policy of never walking away from my responsibilities and commitments.

In early 2017, the Complainant rang to seeking employment. The owner/manager told him that there was nothing available for him but that he would certainly keep him in mind if anything came up. He contacted the Respondent a couple of times early that year to see was there anything available and to check to see how things were going.

In late July, the Complainant rang one evening to see was there anything happening. It happened that he rang at a busy time, so he was asked to call into the office to have a talk about it. He called into the office shortly afterward and a conversation about what was happening in the Respondent. It was explained to the complainant that things were not secure, business was very up and down, and that a guarantee of permanent employment could not be given. He said he wanted the job and he started the following week. The Complainant told the owner that he did not like the job that he was in at the time and was glad to leave. He was not given his Terms and Conditions of Employment when he commenced his role.  

The Respondent runs artic trucks, concrete trucks and tipper trucks drawing stone and tarmac. The Respondent told the complainant, that he would start him on a tipper truck as he did not have an articulated licence. The Complainant had no experience with concrete and he said himself, “it is dirty work” and that he did not want to do.

He started work on July 31st, 2017. He was driving a tipper truck. All went well. The Complainant worked well, he got on well with management and staff. There were no issues. He had a good working relationship with everyone.

The business has always been unstable, with good times and bad times. At the start of this year, the Respondent took a hit with a very significant bad debt. There was a rapid decline in work. The Respondent put it down to brexit looming. There was not enough work for all the employees.  

Mr. EG is very hands on in the business. He is on the yard every morning for 7am before the first person arrives and he doesn’t leave most evenings before 8pm, long after the last person has left. He had numerous conversations with the Complainant, along with all the other drivers, regarding the state of play with the business. They were always well informed.

On the evening of April 18th, Mr. EG told the Complainant that he was to go for 18 tonnes of tar the following morning. The complainant said that truck only carries 17 tonnes. Mr. EG was distracted on the evening due to the difficulties of the company was going through. He did not reply. It was left at that. Usually an eight wheel truck has a carrying capacity of 18 tonnes but that particular truck can only carry 17 tonnes due to the weight of the body. Unfortunately, at the time the weight restrictions were furthest from his mind.

Mr EG rang the complainant the following morning to give him his next job.   He said that Kilkenny Tarmac had loaded him with 18 tonnes and he was only supposed to be carrying 17 tonnes on that lorry. Mr. EG said “you’re the driver, it is your responsibility to make sure the lorry is not over weight.” He should have told the company how much tar he could or could not carry. He was given his next assignment and that was the end of the conversation.

During the course of that day, Mr. EG had a meeting with his accountant regarding the state of the company. It was discussed that the tipper trucks were very quiet, to the point where drivers were sitting around waiting for jobs. That was costing the company a great deal of money., money the respondent didn’t have. Mr. EG had a discussion with his daughter, who is in charge of the HR for the company. It was decided that the complainant would have to be let go due to the fact that he was the last tipper truck driver employed and he only drove tipper trucks. The Respondent has only one other driver who only drives a tipper truck. He has been with the Respondent for twenty years. All of the other drivers are concrete bottle drivers and articulated drivers.

Three drivers were taken on after the Complainant however these drivers were taken on for ready-mix concrete which is very specialised and requires the driver to have a lot of experience. Two of these drivers have articulated licences also and one of the drivers worked in concrete for 20 years and can also operate the batching plant.

On the evening of the 19th the Respondent explained the situation to the Complainant. He got visibly upset. Mr EG apologised profusely but under the circumstances there was nothing that could be done. Because he felt sorry for him he told him that he would pay him for two weeks even though legally he was only entitled to one. He asked should he come in the following week. He was told that there was no point as there was nothing to do. He went off that evening.

He rang numerous times the following day, but MR EG was not available to talk to him. He then called in. He pleaded to keep his job. He was visibly upset. That was very upsetting. Mr EG told him if things picked up in the future, that he would contact him .

The Respondent was shocked to receive a letter from the Complainant’s Solicitors stating that the Complainant intended to take the company up for unfair dismissal.

Mr EG knew he was not happy about losing his job, but he genuinely did not expect him to do this.

CA 30213 – 001 (Unfair Dismissal)

It is clear from the Respondent’s evidence that the Respondent company was struggling financially for a number of years. It would seem, from the evidence, that they managed their financial affairs on a week to week basis. However, despite that, it did survive through the recession and is still trading today. The Respondent stated that complainant was told from the outset that his job could not be guaranteed going forward. I find that evidence not credible in circumstances where the complainant left a full time, secure position, to join the Respondent company.

There was an issue the day before the Complainant’s employment ended. He was asked to drive a 15.5 tonne lorry. He said he could only take a 17 tonnes load on that lorry. The respondent said “no, take 18 tonnes or go and get a new job’ The 18 tonnes put the lorry over the legal weight limit. The complainant did collect the 18 tonnes load. He then called the respondent to get the work schedule for the rest of the day. There was no issue. The following day the complainant was approached by the Respondent and following a minor altercation his employment was terminated. There was some ambiguity about the dismissal, so the Complainant contacted the Respondent on the 22nd April (Monday) to see if he should come into work. He was told not to. There was no further communication until he sought a letter from the company, which said letter he received on the 26th. I note that the Complainant was not given a right of appeal.

I accept that the Respondent entity was in financial difficulty. Regardless of that, the Respondent has an obligation to either engage in a consultation process if it intends to make positions redundancy or a disciplinary process arising from alleged misconduct. It did neither. I am satisfied that the Respondent took advantage of the minor altercation on the 18th April, in order to dismiss the Complainant, without a right of appeal. No procedures whatsoever where followed.

On that basis I find that the complaint is well founded.

The complainant applied for another job the following week. He was successful. His salary is approximately €100 per week.

S7(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 rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

In all the circumstances, I find that compensation is the appropriate reward. I award the complainant € 3,500.00 compensation

CA 30213 -002 ( Terms)

The respondent conceded that the complainant has not been given a contract. On that basis, I find that the complaint is well founded.

I award the complainant € 1,950.00.

CA 30213 -003 and CA 30213-004

Both of above claims arise out of the same set of facts as CA 30213-002. On that basis I am not making any award in relation to them and find that both complaints fails.

CA 30213 -002 The complaint is well founded. I award the complainant €1,950.00

CA 30213 -003 The complaint fails

CA 30213-001 The complaint is well founded. I award the complainant € 3,500.00

CA 30213 -004 The complaint fails.