Complainant

Respondent

Anonymised Parties

A Driver

A Haulage Company

Representatives

Rachel Hartery SIPTU

John Barry Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00033664-001

09/01/2020

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

CA-00033664-002

09/01/2020

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

CA-00033664-003

09/01/2020

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

CA-00034799-001

24/02/2020

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

CA-00034799-002

24/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00034799-003

24/02/2020

The Complainant was employed by the Respondent from 21/10/2015 until he resigned on 12/2/2020. The Complainant’s gross weekly pay was €780.00.  Two Complaint Forms were received by the WRC on the 9th January 2020 and the 24th February, 2020 respectively. Prior to the adjudication hearing on the 18th March 2021 the Complainant withdrew the following complaints:

-  CA 00034799-002 under the Redundancy Payments Act [1967-2021]

- CA 00033664-001 under the Payment of Wages Act [1991-2020]

The remainder of the complaints are as outlined above. 

CA-00034799-001    

The Complainant commenced employment with the Respondent on 21/10/2015 and resigned on 12/2/20.  He stated that prior to his resignation he worked as a shunter driver on the premises of the Respondent’s client. The Complainant maintained that he worked without incident up until the 29th  July 2019. Prior to the 29th July 2019 a difference of opinion had arisen between the Complainant and the Respondent’s client in relation to the matter of placing seals on trucks and recording that this had been done. The Complainant stated that he considered the seals procedure utilised by the Respondent’s client was seriously flawed, constituted an “enormous risk” and that for health and safety reasons and given the nature of the client’s product, he considered it was the responsibility of the client’s staff to place the final seals on the trucks. The Complainant requested clarification on this matter and a meeting with the client but stated that no meeting took place nor was any clarification provided.

When it was discovered that the Complainant had not placed the final seals on the trucks the Respondent’s client instructed that the Complainant be excluded from the clients premises and his site pass was deactivated. Thereafter the following occurred:

·       The Complainant arrived as usual to work on the client’s site on the 29th  July 2019 but found that his admittance card had been deactivated. The Complainant stated that he was shocked by this and had no notice this was forthcoming. In relation to the matter of the seal procedure, the Complainant stated that at no time was he “ever informed that his reluctance would end in a site-ban”;

·       The Complainant stated that on the day he immediately contacted three different managers and none could provide an explanation for the deactivation of his site pass. The Complainant stated that when he contacted the client he was informed that the Respondent had been advised of his site ban and that the client had “apologised for the embarrassing position they found themselves in”. The Complainant stated that he felt humiliated and returned home;

·       The Complainant then contacted the Respondent’s HR Manager who informed him of the site ban and advised that representations had been made to remove the ban but to no avail. The HR Manager advised the Complainant that there would be an investigation into the matter and offered the Complainant alternative work in Dublin – ie a relocation to a site in west Dublin;

·       The Respondent carried out an investigation into the matter and an Investigator met with the Complainant for that purpose on the 11th September 2019. The Complainant’s union corresponded with the Respondent in order to ascertain the findings of the investigation which were issued on the 19th November, 2019. The Complainant disagreed with the Respondent’s findings, considered the Investigator lacked impartiality and sought to appeal. In response the Respondent convened a disciplinary hearing which was held on the 17th December 2019. On the 22nd January 2020 the Respondent advised of the outcome of the disciplinary hearing as follows: “I Do not believe that any further action, including a disciplinary sanction, is required”.

The Complainant stated that working in Dublin would entail a round trip of 270km and at least three hours unpaid driving time.  The Complainant stated that his family had only one car and that it was impossible to purchase another. Notwithstanding, the Complainant maintained that he explored the option of relocating to Dublin and requested information on expenses and travel time, whether he would be provided with a company vehicle and the provision of a safe pass for the site in Dublin. The Complainant also stated that he did not have experience in driving a tipper truck. The Respondent set out details of a daily subsistence rate and a rate of €15/night if the Complainant slept in the truck. The Complainant responded setting out his concerns in relation to pay, travel time and driving limitation times as stipulated by the RSA. The Complainant stated that his concerns were not allayed and that use of a company vehicle to travel to Dublin was refused.

The Complainant maintained that he considered the Respondent’s relocation offer was “unreasonable and quite deliberate” was not made in “good faith” and was not “genuine”. Further the Complainant maintained that local positions had become available which were not offered to him. The Complainant also stated that since his site ban the practice of requiring the shunter drivers to place the seals on trucks had ceased and this was now being carried out by the client’s staff.

The Complainant was not paid from the date following the site ban – ie from the 30th July 2019 causing him severe financial difficulties and his union had requested that he be re-instated but to no avail. The Complainant maintained that he was available for work but that the location offered by the Respondent was “unreasonable” and  “not workable”. It is the position of the Complainant that the Respondent “simply wanted rid of [him]”, that in the circumstances he considered his position “hopeless”, that he had no alternative but to resign and that he has been constructively dismissed. In his email to the Respondent of the 4th February 2020 the Complainant stated as follows:

“It is with much frustration that I write this, I am tendering my resignation as you have left me with no alternative but to resign from my position.

[X] was contracted by [Respondent] to carry out an investigation as to why I received a site ban…

During this lengthy investigation [X and Respondent] had the opportunity to expose the facts and truth in this case but have failed to do so…..

You suggested that I do site work on a vehicle in Dublin and said I refused this position and deemed me uncooperative. I was not compliant as I didn’t hold a valid safe pass and had no experience in this type of work. You have still suggested several times that there is work available in Dublin. I have responded by seeking information regarding allowances for travel and mileage. You have refused to consider both and I do not believe that anything you have relayed regarding this suggestion is genuine and I am extremely disappointed by this.

I have stated that I can work in other depots….. but you refused these and since recruited new employees for these positions.

During my time as a shunter operator I have been a vigilant, hard-working employee with an excellent work record. I have participated in all investigatory meetings and attempted to resolve this issue with you internally to no avail.

You have not provided me with viable work and this lengthy situation has had an enormous impact on my family, finances and emotional well-being as well as tarnishing my character and therefore I am left with no other option but to resign…..”.

The Complainant outlined that whilst the Respondent requested him to reconsider his position by email of the 5th February 2020, the Complainant confirmed his resignation on the  12th February 2020.

The Complainant referenced the definition of constructive dismissal as outlined in the Unfair Dismissals Act [1977-2020] and stated that it was reasonable for him to resign as there was no alternative. The Complainant reiterated that he had attempted to resolve matters in the workplace but to no avail, that he had continued to be available for work up until the date of his resignation but that the Respondent had not provided him with  “meaningful reasonable work”.  

CA-00033664-002

Pursuant to the Organisation of Working Time Act [1997-2020] the Complainant stated that he was not paid annual leave due to him. In that regard the Complainant stated that he was owed twelve days annual leave which amounted to €1,872.

CA-00033664-003

Pursuant to the Organisation of Working Time Act [1997-2020] the Complainant stated that he was not paid public holidays from July 2019 to the date of his resignation.  In that regard the Complainant stated that he was owed six public holidays which amounted to €936.00.

CA-00034799-003

Pursuant to the Minimum Notice and Terms of Employment Act [1973-2020] the Complainant stated that the Respondent failed to provide him with notice payment.

CA-00034799-001

The Respondent rejected the Complainant’s claim of constructive dismissal which it stated was not well founded. The Respondent stated that it followed best practice in dealing with the situation and that the issue came down to the Complainant’s refusal to follow a reasonable request/instruction in relation to applying the seals on trucks and recording this, in the Respondent’s client’s premises. The Respondent stated that the situation was of the Complainant’s own making and that it was not the Respondent’s actions which had caused the refusal of the site pass. The Respondent stated there was no other job in the locality which did not involve some cross over with the Respondent’s client and that there was no onus on the Respondent to make up a job for the Complainant.

In the course of its submission the Respondent referenced the Investigation Report which it had commissioned into the circumstances surrounding the exclusion of the Complainant from the Respondent’s client’s site. This investigation was conducted by a HR Support Consultant and was concluded on the 19th November 2019. According to the Investigation Report “Procedures were introduced in 2019, on the night shift, where it was required that any time a trailer was moved off the loading bay it had to be sealed with a temporary seal and the number had to be recorded on a worksheet”. The report stated that the Complainant was made aware of these procedures in 2019 and “that shunters were required to put seals on the trailers when they were being moved from the loading bay and these needed to be recorded on a truck seal check sheet”.

The Investigator met with the Complainant on the 11th September 2019 and his report outlines the views of the Complainant and why he had difficulty with the seal procedures, that he/the Complainant stated that he “never signed up for anything like this and that he had never been consulted or agreed with the procedure….”, that he had requested a meeting with the Respondent’s client and the Respondent and that the Complainant considered the process was ‘on hold’  pending this meeting. The Investigation Report also notes that the Complainant thought that both he and his colleague were not signing off on the seal sheets but that was not the case as his colleague was doing so. It was only when his colleague went on holidays that it transpired that the sheets were not being completed by the Complainant. In this regard it is noted in the Investigation Report that the Complainant stated that he was putting the seals on the trailers but was not recording this on the seal sheets. The Investigation Report also stated that following the Complainant’s exclusion from the Respondent’s client’s site, the Respondent made attempts to have him temporarily returned to the site whilst the investigation was taking place but these were rejected by the client.

The Investigation Report concluded as follows:

“Based on the information provided I am satisfied that [Complainant] was instructed that he had to apply temporary seals and also record them. I am also satisfied that [Complainant] failed to comply with that instruction, not only after he was given it in the first instance, but also after he was specifically requested to do this work whilsthis colleague was on leave.

I believe the instructions issued to [Complainant] were reasonable instructions, both at the time when the client introduced the procedure and when his colleague was on leave. I am also satisfied that even if [Complainant] had been unhappy with the procedure, he could have carried it out under protest, which I believe would have meant he would not have been excluded from the site and that it would have been an internal [Respondent] issue and not one involving the client.

Therefore, I am satisfied that [Complainant] failed to comply with reasonable instructions both at the commencement of the introduction of the new procedure and also specifically when [colleague] was on holidays, he was the exclusive contributor to his removal from site and the subsequent difficulties in relation to his ongoing employment”.

The Respondent outlined that it instigated a disciplinary hearing which was held on the 17th December 2019 and referenced its four page letter to the Complainant outlining the disciplinary hearing outcome. The outcome records the Complainant’s concerns about the Respondent’s client’s seal procedures, his views on the Investigation Report including his concerns that the report/Investigator was selective and that he was not provided with training on the seal procedures. The disciplinary hearing outcome also noted that the Complainant did not initiate a grievance in relation to the matter. The disciplinary outcome letter concluded as follows:

“You/[Complainant] stated that you were not made aware that failure to comply could result in disciplinary action against you. In this regard, it is clear you were aware that this was a directive from [Client], and therefore it is reasonable to assume that by not adhering with this request, you are not complying with this and this could have consequences for the company and/or you. It is also of note that these procedures were notified to you on more than one occasion.

You also raised your beliefs that because [Investigator] was being paid by the Company for his services that this could result in a bias towards the Company.

However, I find that the Company by choosing to enlist the services of an external party removed any potential risk of bias that might otherwise exist were an internal party to be conducting the matter and that [Investigator] has an obligation to act in line with best practice when conducting such proceedings.

Following a thorough review and analysis of the information collated during the investigation and the disciplinary hearing, I am satisfied that you refused to follow a process that you were aware was required by the Client. Whilst this behaviour is completely unacceptable and could warrant disciplinary action, I am conscious that the Client instructed us to remove you from their site and therefore I do not believe that any further action, including a disciplinary sanction, is required to sufficiently demonstrate the seriousness of the matter, notwithstanding the fact that this was not a decision taken by [Respondent] and was a decision taken by [Client].

I would like to remind you that we continue to have work available for you in Dublin and should you wish to receive training for this, we will happily provide this. We alsocontinue to review whether any other local work is available, which at present it is not”

The Respondent stated that the Complainant’s terms and conditions of employment provided that he was required to do such other duties as may be assigned. The Respondent referenced various letters exchanged with the Complainant wherein it outlined that it had made efforts to address the site ban with the client but that the client “remained adamant that [Complainant] could not re-enter the site”. The Respondent maintained that the only work available was in the Dublin area and that Complainant had “refused outright to attend this work and has maintained this position ever since”. The Respondent also stated that it clarified in correspondence to the Complainant that if he had “been willing to do the work we would have made the necessary arrangements to train [him] in these areas but as he was not willing to go to Dublin there was no sense in organising any training if it was not relevant”. In an email to the Complainant’s union of the 24th October 2019, the Respondent stated that no employee is paid travelling expenses for going to work, that other employees are travelling up to Dublin as that is where the work is and that when Complainant confirms acceptance of the position in Dublin, the Respondent would organise training, a safe pass and other measures to ensure Complainant can comply with all the requirements to complete his duties. The Respondent also asked the Complainant to identify any new drivers working locally who are not required to go to the Respondent’s client’s site.

The Respondent advised that when it received the Complainant’s resignation by email on the 4th February 2020 that it responded by email of the 5th February 2020 requesting him to reconsider his position and advised that Respondent would not accept his resignation unless it did not hear from him by the 12th February 2020. There followed further exchanges of correspondence between the Complainant and the Respondent in relation to the work in Dublin, rates of pay, subsistence rates which ultimately culminated in the Complainant tendering his resignation on the 12th February 2020.

It is the Respondent’s position that the Complainant was not constructively dismissed, that work was available for him at all times and that the situation was entirely of the Complainant’s own making.

CA-00033664-002

The Respondent stated that the Complainant was paid all annual leave due to him based on his hours worked. In that regard, the Respondent furnished a payslip dated 20/2/2020 referencing “HOLS” for the amount of €1585.22. The Respondent stated at the hearing that it would provide a breakdown of what this amount was for.

CA-00033664-003

The Respondent stated that the Complainant was paid all public holidays due to him. In that regard, the Respondent furnished a payslip dated 20/2/2020 referencing “HOLS” for the amount of €1585.22. The Respondent stated at the hearing that it would provide a breakdown of what this amount was for.

CA-00034799-003

The Respondent rejected the Complainant’s claim Pursuant to the Minimum Notice and Terms of Employment Act [1973-2020] on the basis that all monies owed to the Complainant were paid and that as he chose to leave his employment no notice payment was due.

CA-00034799-001

The relevant legislative provisions in relation to unfair dismissal are set out in the Unfair Dismissals Act [1977-2017]. In this regard, section 1 of the act defines dismissal as follows:

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

a) the termination by his employer of the employee’s contract of employment with the employer…..

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”

The Complainant is claiming he was constructively dismissed which assertion is contested by the Respondent. Accordingly, I must firstly consider whether or not on the balance of probabilities, there was a dismissal in accordance with the provisions of section (b) above. There are two tests to establish if a constructive dismissal occurred – the ‘contract test’ – i.e. that there was a breach of contract, such that an employee is entitled to terminate his/her employment and the ‘reasonableness test’ – i.e. that the behaviour of the employer was so unreasonable that the employee was entitled to terminate his/her employment. The reasonableness test asks whether the employer conducted its affairs in relation to the employee so unreasonably that a complainant could not fairly be expected to put up with it any longer. These tests were enunciated in Western Excavating (ECC) v Sharp [1978] ICR 221 and have been relied on by the Labour Court. For example in NCBI v Ms Mary Cawley [UDD2138] the Court explored whether there was “any fundamental breach going to the root of her contract” such that it was reasonable for the Complainant to terminate her contract and/or whether the employer conducted its affairs “in relation to the employee so unreasonably that the employee cannot be expected to put up with it any longer, [and] if so…is justified in leaving”.  By the same token, a complainant is under the burden of establishing that he/she also conducted him/herself reasonably in terms of affording the employer the opportunity to address the issue which ultimately led to the termination of the employment. In that regard, in referring to the need to utilise established internal grievance procedures, the Employment Appeals Tribunal held as follows in Beatty v Bayside Supermarkets [UD142/1987]:

“The Tribunal considers that it is reasonable to expect that the procedures laid down in such agreements be substantially followed in appropriate cases…”

From the evidence I consider that no real substantive argument has been made by the Complainant that a fundamental breach of contract occurred such that it would have been reasonable for him to resign his employment and nor has he identified any such breach. The Complainant has however argued that following the site ban the terms and conditions of the offer of employment in Dublin were unreasonable, that the terms were impractical, would impose financial hardship on him and his family and were unworkable. In this regard, I note the various exchanges of correspondence between the Complainant and the Respondent and in particular the letter of the 29th August 2019 sent on behalf of the Complainant which raised matters such as the payment of travel expenses to Dublin and the provision of training and a safe pass. I also note the Complainant’s resignation email of the 4th February 2020 wherein he stated that he had been left with no other option but to resign as the Respondent has not provided him “with viable work”. As against that the Respondent has argued that following the site ban it attempted to find work for the Complainant, that the only available work was in the Dublin area, that the Complainant refused outright to attend this alternative work and that had the Complainant been willing to do this work training and a site pass would have been arranged. The Respondent has also stated that its employees are not paid travelling expenses for going to work.

I have also noted the exchanges between the Complainant and the Respondent following his resignation email of the 4th February 2020 including the Respondent’s email of the 7th February 2020 which inter alia stated:

“We currently have work available for you in Dublin driving a tipper truck details of which are as follows…..

Your working hours will be up to 47 hours on average per week….

The rate of pay for this work is €11.00 per hour. If you are required to stay overnight in the truck, that would attract a payment of €15.00 per night……

If you have reconsidered your position and now wish to avail of the work in Dublin, as outlined above, please let me know……”

The Complainant responded by email of the 9th February 2020 stating:

“Naturally I have some concerns regarding the content in your email…

Firstly I would like you to confirm that you have no other work [locally].

I am not enthusiastic about working in Dublin and ask that you clarify the following:

1. Can you supply a company vehicle as I no longer have transport of my own….

2. Can you confirm that the stated 47 hour week includes travel time which would be around 3 hours per day?

3. The hourly rate of 11 euro is below my current rate and remuneration…..

4. Can you confirm as to why I could be required to stay overnight in a truck?

5. I am also concerned as to whether the driving hours which would include travel time, come within the limitations set out by the RSA…

6. Although you have previously refused mileage allowance, you must realise that a complete journey is around 270k and could cost up to €100 per week……

I hope that you can understand my concerns and realise that unless you can supply transport and implement remuneration for the above mentioned costs that accepting a job in Dublin is not an option and I may not have any other choice than to resign..…”

The Respondent replied to the Complainant by email of the 12th February 2020 advising that it was not company policy to provide vehicles for the purpose of travelling to work, that the 47 hours excluded travelling to and from work and that the pay difference was accounted for by the fact that the proposed Dublin hourly rate was a day rate which did not include any shift premium. The Respondent also stated that any work available locally would entail entering the Respondent’s client’s site and that the Respondent did “not have any other suitable work in that area….at this time”. By response of the same day, the Complainant stated:

“Due to the fact that:

You cannot supply a company vehicle or offer remuneration for travel.

That Dublin is not my normal place of work and I would therefore have to comply with tachograph legislation which would include my travel time to and from Dublin.

I would be working a significant amount of unpaid hours

Therefore I have no alternative but to tender my resignation as of today 12th of February 2020”.

I have considered the Complainant’s position in relation to the imposition of the site ban by the Respondent’s client and his concerns and objections in relation to the investigation and disciplinary processes which found that he failed to comply with a reasonable instruction of the Respondent’s client but did not result in the imposition of any disciplinary sanction. In addition, I have considered the Complainant’s concerns from a health and safety perspective in relation to the seals procedure, his assertion that the Respondent’s client had now changed it’s practice and his representations that he was never informed that his reluctance in respect of the seals procedure would result in a site ban. Having regard to all of the submissions and evidence adduced, I am of the view that although the lead up to the site ban, the manner in which it was imposed, the lack of prior notification and explanation for its imposition and the subsequent investigation and disciplinary processes, were serious and significant issues for the Complainant, ultimately they did not trigger his decision to resign.

In the alternative, I am satisfied from the evidence, emails and documentation that the Complainant’s resignation was ultimately triggered by the prospect of re-locating to Dublin and in particular his concerns about transport to and from the Dublin site, travel time and mileage. The question I must ask therefore is – whether the Complainant’s decision to resign was reasonable in these circumstances such as to justify his decision to terminate his employment by way of constructive dismissal? In considering this question I note that in Cope Limited T/A COPE GALWAY v Ms Leigh Bell [UDD2145], the Labour Court referred to “the high bar which must be met to sustain [a] complaint of constructive dismissal on the basis of unreasonable behaviour….or behaviour….which undermined a fundamental element of the contract of employment”.

Having regard to all of the submissions and evidence adduced, I am satisfied that I have not been presented with any evidence to suggest that the offer of relocation to Dublin breached/fundamentally breached the Complainant’s contract of employment. In the circumstances, I consider that it remained open to the Complainant to choose an alternative course to resignation – namely to relocate to Dublin and continue lobbying from a position of employment for better terms and conditions for working in Dublin – for example as regards mileage, transport etc. Equally the Complainant could have continued to lobby for a return to work locally, given that the Respondent’s client, according to the Complainant, had changed its practice in relation to the administration of the seals procedures. Furthermore, whilst I accept that the Complainant brought his concerns and objections in relation to the Dublin offer to the Respondent’s attention, I note that he did not initiate any internal grievance procedure in relation to these matters.  In all the circumstances, I am satisfied that the Complainant has not met the high bar test referred to by the Labour Court and that his employment did not come to an end in circumstances amounting to dismissal.

CA-00033664-002

Post hearing the Complainant’s representative advised the WRC by emails of the 1st April and 24th May 2021 that she had not received a breakdown from the Respondent in relation to the payment of €1585.22 to the Complainant on 20/2/2020 and that accordingly this claim was not being withdrawn. In this regard, I note that the Organisation of Working Time Act [1997-2020] places the obligation on the Respondent employer to pay annual leave and to keep proper records to demonstrate that the provisions of the Act have been complied with. On the basis that the Complainant continued to be an employee up until his resignation on the 12th February 2020 and  that I have not been provided with adequate evidence to contest the Complainant’s claim for outstanding annual leave, I am satisfied that the Complainant is owed twelve days annual leave pay amounting to €1,872.

CA-00033664-003

Post hearing the Complainant’s representative advised the WRC by emails of the 1st April and 24th May 2021 that she had not received a breakdown from the Respondent in relation to the payment of €1585.22 to the Complainant on 20/2/2020 and that accordingly this claim was not being withdrawn. In this regard, I note that the Organisation of Working Time Act [1997-2020] places the obligation on the Respondent employer to pay public holidays and to keep proper records to demonstrate that the provisions of the Act have been complied with. The Complainant has claimed six public holidays. On the basis that the Complainant continued to be an employee up until his resignation on the 12th February 2020 and  that I have not been provided with adequate evidence to contest the Complainant’s claim for this payment, I am satisfied that the Complainant is owed six days public holiday pay amounting to €936.00.

CA-00034799-003

Given that I have found the Complainant was not dismissed, I consider that his complaint for notice payment pursuant to the Minimum Notice and Terms of Employment Act [1973-2020] is not well founded.

CA-00034799 -001

For the reasons outlined this complaint is not well founded.

CA-00033664-002

For the reasons outlined this complaint is well founded and I award the Complainant €1,872 in respect of outstanding annual leave owed to him on the basis that his entitlements in this regard have not already been discharged.  

CA-00033664-003

For the reasons outlined this complaint is well founded and I award the Complainant €936.00 in respect of outstanding public holiday pay owed to him on the basis that his entitlements in this regard have not already been discharged. 

CA-00034799-003

For the reasons outlined this complaint is not well founded.

Constructive Dismissal; Grievance Procedure; Pay