ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026224
Parties:
| Complainant | Respondent |
Anonymised Parties | A Tour Coach Driver | A Coach Company |
Representatives | Mr Brian Sugrue BL instructed by Marie Ford Solicitors | No Representation |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977 | CA-00033399-001 | 18/12/2019 |
Date of Adjudication Hearing: 19/08/2020 & 05/10/2020
Workplace Relations Commission Adjudication Officer: Aideen Collard
Procedure:
This complaint of unfair dismissal pursuant to Section 8 of the Unfair Dismissals Act 1977 was received by the Workplace Relations Commission (hereinafter ‘WRC’) on 18th December 2019. Following referral to me by the Director General, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence. I proceeded to a face-to-face hearing on 19th August 2020. The Complainant was represented by Mr Brian Sugrue BL instructed by Marie Ford Solicitors. The Respondent’s Operations Director, Mr A attended on its behalf and raised an issue as to the requisite service for the purposes of bringing a complaint of unfair dismissal and also put the fact of dismissal in dispute. As the Respondent required direct witness evidence and documentation, the hearing was adjourned to accommodate same. The Respondent was also afforded the opportunity of availing of HR/legal advice. The hearing resumed on 5th October 2020 when two witnesses attended on behalf of the Respondent. As the Respondent did not have representation, I outlined the legal provisions and caselaw in relation to the preliminary objections raised on its behalf in lay terms. I determined that it was necessary to hear all of the evidence in order to determine the preliminary objections raised and the substantive case was heard without prejudice to same. Following the hearing, a further period of time was allowed to facilitate the submission of any additional documentation which the Parties wished to rely upon. All oral evidence, written submissions and supporting documentation presented have been taken into consideration.
Background:
The Complainant was employed by the Respondent as a seasonal driver/guide from April 2016 and contends that he was unfairly dismissed by the Respondent on 15th July 2019. He is seeking compensation by way of remedy for unfair dismissal under Section 8 of the Unfair Dismissals Act 1977. It is common-case that the Complainant was never furnished with a written contract or disciplinary procedures and was paid an average of €550 gross per week. The Respondent disputes this complaint on the basis that firstly, the Complainant does not have the requisite one year’s continuous service to pursue a complaint of unfair dismissal and secondly, he was never dismissed by the Respondent and in fact abandoned his employment as a consequence of which it had assumed that he had resigned. At the second hearing, it was further contended that the Complainant had been removed from his usual assignment of work at the request of a Third Party Tour Operator with whom the Respondent held a contract for same but there had been alternative work available for the Complainant. The Complainant refuted the Respondent’s position.
Summary of Complainant’s Case:
The Complainant gave evidence outlining the history and nature of his employment with the Respondent and the course of events giving rise to this complaint of unfair dismissal. He contended that he had been dismissed without notice on 15th July 2019 and had not resigned as maintained by the Respondent.
The Complainant confirmed that he had commenced working for the Respondent in April 2016 as a tour driver/guide. He had worked from April until October during each of the years of 2016, 2017 and 2018, resuming again in April 2019 until his dismissal on 15th July 2019. These periods of employment corresponded with the tourist season and were by mutual agreement with the Respondent. The Complainant was furnished with a P45 for the purposes of obtaining social welfare during the intervening periods. There was a mutual expectation that the Complainant would return to work with the Respondent for each season and he remained on its books as such. It was also common-case that he had never been furnished with a written statement of the terms of his employment or any disciplinary procedures in writing. He worked 60-70 hours per week and it was agreed that he was paid an average of €550 gross per week. His duties entailed driving and guiding tourists (referred to as ‘clients’) on a regular weekly sight-seeing tour during the tourist season, operated by a Third Party Tour Operator commencing in Dublin on a Monday morning, and finishing back in Dublin on a Friday evening. This also required him to be away from home and stay in hotels during the week. Occasionally, he was offered additional weekend driving work. It is not disputed that for a number of seasons, the Complainant had undertaken the same tour every week, save for the odd occasion when his leave requirements were covered by a substitute driver/guide provided by the Respondent. At one stage in 2018, he had been asked to change tours but had insisted on remaining on this tour as he was not familiar with the other tours. He had considered the tour he was assigned to be ‘his tour’ and other employees and suppliers referred to it as ‘his tour’. He also recalled that in 2018, a Manager for the Third Party Tour Operator, Ms C, had told him “it is your tour, make it work” and during a family familiarisation trip in 2018 had also said: “you do this well, you make it good, you make it happen”. It was not disputed that he had received excellent feedback from the clients on his tours and was regularly complimented on his excellent driving, knowledge of Ireland and his care for their welfare whilst on tour. He had only ever been complimented on his work by the Respondent and the Third Party Tour Operator and at no time had they expressed any concern or dissatisfaction with him or the quality of his work.
The Complainant said that he was not usually contacted by the Respondent to confirm his assignment to the tour as it was so routine and he turned up at the coach yard every Monday at 6am to start his working week which commenced with getting the coach ready and collecting the clients. The tour schedule was fixed and followed the same itinerary each week and the same hotels and suppliers were used. The Complainant would collect his ‘tour box’ from the site office on a Friday evening, which contained the itinerary and name badges for the clients and other relevant documentation for the operation of the tour.
The Complainant recalled that he had collected the tour box on Friday 12th July 2019 as usual for the following week commencing on Monday 15th July 2019. He also recalled that his name was printed on the tour box, weekly tour itinerary and hotel room allocation list for the tour that week. On the morning of Monday 15th July 2019, he arrived in the coach yard to commence work. He collected the keys for his coach and commenced with preparations for the tour. During the course of preparing the vehicle, he was approached by another driver who stated that he was assigned to take the tour having been contacted by Mr A on the prior Thursday 11th July 2019. Initially, the Complainant thought this was a wind up, but then assumed that some error had been made. The two men went to the site office to speak with the Transport Foreman, Mr B. Mr B checked his work allocation sheet which stated that the other driver was assigned to the tour that week. He also went into the office to make a phone call to confirm whether this was correct. Mr B retuned after the phone call, which the Complainant had not heard. He confirmed that his allocation sheet was correct and that the Complainant was not assigned to the tour that week and he was going to have to send him home. The Complainant handed over the tour box to the other driver and left the coach yard to drive the long journey home. He was extremely upset at the manner in which he had been treated. Later that day he received a message from another driver asking him whether it was true that he was gone.
The Complainant confirmed that at no time had he been contacted by the Operations Director, Mr A, or anyone from the Respondent to say that he was not assigned to the tour for the week of 15th July 2019 or to offer him alternative work. He also denied that anyone on behalf of the Respondent had contacted him the week beforehand and confirmed that he had not received any missed calls. He did however receive a number of text messages from other drivers assigned to the tour seeking advice about it. When nobody contacted him thereafter he considered himself to be dismissed. Some two weeks later on 29th July 2019, he missed a call from Mr A, who left a brief voice message containing his name only. On foot of this, by letter dated 1st August 2019, he wrote to Mr A stating: “Would you please state the purpose of your call, and or, any communication / message you have for me by letter to the above address.” He said that he had lost trust in the Respondent and wanted a written record going forward. It was common-case that this letter was received by Mr A but that he did not respond in writing. The Complainant did not receive any communication from the Respondent confirming his employment status. He received a P45 with a cessation date of 19th October 2019. He confirmed that he had made no further efforts to contact the Respondent as he had considered himself to be dismissed and had also been too upset. Upon hearing nothing further from the Respondent, he referred this complaint to the WRC on 18th December 2019.
Reflecting back, the Complainant said that he had been shocked and distressed to be dismissed in such as manner without as much as a phone call from the Respondent to communicate that he was being replaced and was still visibly upset at the hearing. He felt disregarded and made to feel small by the way he had been treated. He had a reasonable expectation of work with the Respondent until the end of the tourist season in October 2019. He explained that it is typical for driver/guides to take up work at the beginning of a season and stay for the duration of that season. As a consequence, there are few open opportunities mid-season and he had been out of work for the remainder due to the timing of the dismissal. On this basis, he was confining his claim for compensation to the fourteen weeks remaining of the 2019 season.
Additional evidence and questioning of the Complainant by Mr A on behalf of the Respondent
By the resumed hearing, the Complainant had learned that the Respondent intended to give additional evidence to the effect that the Third Party Operator of the tour in question had requested his removal arising from an issue he had with a supplier on the route and this was the reason as to why he had not been assigned for the week of 15th July 2019. The Complainant confirmed that he had previously not been made aware of this as being an issue or the reason for his removal from the tour and sought to explain what had arisen. One of his stops entailed the clients being taken on an independent horse-drawn tour of the area and had always been operated by the same staff. However, during his first tour in July 2019, he had been approached by men who were unknown to him advising that they were scheduled to take the clients on the tour. As this change in personnel had not been communicated to him beforehand and he was unaware of their experience, he was concerned for the safety and welfare of the clients which were his responsibility. However, he reluctantly left them go with the new personnel. The new personnel were scheduled again on the following week’s tour. On this occasion the horse-drawn tour had been shortened by twenty minutes which was not to the tour specification. He called the Third Party Tour Operator to make enquiries regarding the change in personnel and to communicate his concerns. He informed them that he wanted to return to the previous personnel because he had trust and confidence that they would care for the clients and provide them with a quality tour service and he could not stand over that with the new personnel.
During questioning by Mr A on behalf of the Respondent, the Complainant agreed that the Tour Operator had a right to choose whatever supplier/s they wished, but maintained that changes should have been communicated to him. He said that it made it difficult for him to do his job if such changes were not communicated in advance and he had been put on the spot. He was confident that the regular suppliers of the service took care for the safety and welfare for the clients and provided them with a quality tour in accordance with the specification. He did not have the same working relationship and confidence in the new personnel and requested that the usual personnel be assigned on the remaining tours for the season. It was a fabrication to say that he would not work on the tour if his preferred personnel were not assigned.
It was further put to the Complainant that the Respondent’s evidence would be that the Complainant had informed the Transport Foreman, Mr B, that his coach had already gone when he approached him on 15th July 2019. He said that this was not correct as he had been preparing the coach before being approached by the other driver and they had sought clarification from Mr B as to who was assigned to the tour. He denied saying to Mr B: “I’ve had enough of this- you will never see me again” before leaving the coach yard.
Submissions on behalf of the Complainant
It was submitted that in all the circumstances, it was reasonable for the Complainant to consider himself as having been dismissed and hence a dismissal should be held to have occurred. Accordingly, the provisions of the Unfair Dismissals Act 1977 apply and the Respondent has not discharged the onus of establishing that the Complainant’s dismissal was not unfair having regard to the facts established from the evidence adduced. Reliance in this respect was placed on Cox, Corbett & Ryan Employment Law, 1st Ed, 2009 at para 21.15 stating: “Whether or not a dismissal occurred is determined in accordance with an objective standard. In many cases, the fact of dismissal will be obvious and undisputed: for example, where an employer writes a formal letter of termination to the employee. However, complications may arise where the employer has not acted with clarity as to his or her intentions. The test in such circumstances is whether a reasonable employee in the circumstances would consider that the employer’s words and/or actions amounted to a dismissal.” This test was likewise stated in Devaney -v- DNT Distribution Company Ltd UD412/1993 and in Tanner -v- DT Keane Ltd (1978) IRLR 110 at 111 as: “how would a reasonable employee in all the circumstances have understood what the employer intended by what he said and did.” It was noted that even in the absence of a formal statement from an employer that the employee is dismissed, the actions of an employer may also be deemed to amount to a dismissal of an employee. In Mansour -v- Romansa Ltd UD360/2004 (cited in Ryan Redmond on Dismissal Law, 3rd Ed, 2017 at para 22.21), the EAT was confronted by conflicting evidence as to whether the employer had told the employee to “leave now” but concluded that it was reasonable for the employee to believe that he had been dismissed. It found support for this conclusion in the fact that no effort had been made by the manager to contact the employee to resolve their dispute. Regarding the issue of whether there is an onus on an employer to actively confirm whether an employee has resigned or not, both Ryan Redmond on Dismissal Law at para 22.25 and Cox, Corbett & Ryan Employment Law at para 21.25 express the view that there is a positive obligation to follow-up.
Applying the facts to the legal authorities, it was submitted that in the instant case the Complainant has given compelling evidence as to his honest belief that the Respondent’s actions, namely removing him from a tour on which he had been a long-standing driver/guide, indicated that he was being dismissed. It was readily open to the Respondent to clear up any such mistaken belief on the Complainant’s part by responding to his letter of 29th July 2019 and it is not disputed that no attempt was made to do so. It was further submitted that as the relationship between an employee and employer is not one of equals, a higher onus rests upon the employer to ensure that no miscommunication or mistake has arisen with regard to something as important and fundamental as dismissal / resignation of an employee. The entirety of the circumstances including the removal of the Complainant from the tour on 15th July 2019, coupled with the failure by the Respondent to respond to his letter should be taken together when assessing whether it was reasonable or not for him to consider himself to have been dismissed by the Respondent.
Summary of Respondent’s Case:
Evidence and Submissions by the Operations Director, Mr A, on behalf of the Respondent
Mr A confirmed his role as the Operations Director with overall responsibility for the Complainant’s employment with the Respondent. He accepted that the Complainant had not been furnished with a written contract or statement of employment terms and said that the Respondent does have contracts for its permanent employees but not for its seasonal employees. He also confirmed that the Complainant was paid an average of €550 weekly by electronic transfer and furnished with a payslip every week, and that the Respondent issues P45’s for all seasonal workers at the end of each season for social welfare purposes.
On behalf of the Respondent, Mr A maintained that firstly the Complainant did not have the requisite one year’s service to bring a complaint of unfair dismissal and secondly that he was never dismissed. He had sent an email dated 28th January 2020 to the WRC setting out the Respondent’s position which he relied upon at the first hearing of this complaint on 19th August 2020. It stated: “(The Complainant) worked for (the Respondent) as a seasonal tour driver. It is claimed in the letter that (the Complainant) was unfairly dismissed - this is not accurate. In 2019 he started with us on the 29th April and his last pay slip was on the 17th July. After this date he refused to answer the phone to the Transport team. When this was brought to my attention (29th July) I personally tried to call (the Complainant) to try and make sense of the situation. In early August I received a letter from (the Complainant) stating that “Would you please state the purpose of your call, and or, any communication / message you have for me by letter to the above address.” Please find the letter attached to this email. I found this to be a very unusual request as it is imperative to speak with drivers to explain what their next job is and any unusual requests that the client might have. My Transport team tried to get in touch with (the Complainant) a number of times in August to see if he was available to work, but he did not answer, nor did he reply. (The Complainant) was not dismissed from (the Respondent), he refused to answer the phone to the Transport department and therefore we were unable to allocate him work.” Mr A accepted that it would have been better practice to have followed up with the Complainant to confirm the Respondent’s position in writing but contended that it would not be unusual for a driver to leave its employment without any further communication between the Parties. He was unable to provide any specifics or direct / documentary evidence of the efforts he contended had been made by the Transport team / department to contact the Complainant either before or after 15th July 2019.
Mr A gave further evidence relating to his role and duties as the Operations Director for the Respondent. He outlined the challenges of operating such a large fleet of coaches, which included scheduled services and tour coaches. He stated that at its peak, that he could be managing some ninety movements each day. In addition to providing various transport services, the Respondent had a contract to provide coach and driver/guide services for weekly tours operated by a Third Party Tour Operator during the tourist season. The Respondent had worked with this Tour Operator for many years and they had a very good working relationship. Each tour driver had to be briefed individually and nothing could be left to chance or unchecked. The tour itinerary, tour documentation, tour vouchers, client name badges etc., had to be prepared for each tour and communicated to each driver/guide individually the week beforehand.
Regarding the assignment of driver/guides and coaches for tour work, the Transport team had to try to ensure a fair distribution of work between all the drivers. The Complainant was incorrect in referring to the tour in question as ‘his tour’ and ‘his coach’ which he submitted was impossible on account of the fluid nature of the volume and type of work that is on the Respondent’s books at any given time. He clarified that the Respondent does not guarantee a driver/guide an assignment to any specific work and the assignment of work is subject to change in accordance with the demands of the business. The Complainant was not guaranteed any specific work or assignment to the tour in question. For the week of 15th July 2019, he would have been assigned to airport transfers, but he could not be contacted to confirm his availability for that work and had not returned the Transport team’s calls. Mr A said that it is usual practice for drivers and driver/guides to be proactive in checking in with the team to discuss their assignments beforehand.
Under questioning, Mr A accepted that the Complainant had commenced work in April 2016 and although he was not guaranteed any specific work or tour, in practice, the Complainant had worked exclusively on the same tour for a number of seasons until he ceased working in July 2019. Mr A also confirmed the Complainant’s evidence that he had once tried to change him onto another tour, but he had refused as he was unfamiliar with it. As a consequence he was assigned to his usual tour. Mr A did not have regular direct contact with the Complainant and months could pass without any contact. He had previously emailed the Complainant about contacting the Third Party Tour Operator too regularly. It was not a driver’s place to be contacting the Tour Operator directly and he had been given instructions on a previous occasion to reduce his contact. However, Mr A had found him difficult to contact. He also confirmed that the feedback from the clients and the Third Party Tour Operator on the Complainant’s work and driving had been excellent and they had been very happy with his work. However, the Third Party Tour Operator had raised an issue about the Complainant the week before he left which he did not elaborate on at that stage.
Mr A further confirmed that the Respondent would only dismiss a driver on account of a very serious matter. It had been a very busy time for them and they needed every driver they could get. He maintained that the Complainant had abandoned his employment and refused to engage with the Transport team about the allocation of further work which would have been available to him. He accepted that there were no written procedures regarding the allocation of work and neither had there been any written follow-up.
At the resumed hearing, Mr A confirmed that he was calling evidence from Ms C, a Manager of the Third-Party Tour Operator to confirm that on Thursday 11th July 2019, she had contacted Mr A to request the Complainant’s removal from its tours. This arose from an issue he had raised with a supplier on the tour.
When questioned by the Complainant’s Representative, Mr A confirmed that this was the reason why the Complainant had not been assigned to his usual tour on 15th July 2019. He also confirmed that he had not communicated Ms C’s instruction to the Complainant and had not advised him in writing or otherwise that he would not be assigned to this tour in the future or of the reason for same. He accepted that it would be reasonable to give an employee an opportunity to give his side of the story where an issue had arisen but this had not been done. However, he maintained that the Complainant had not been dismissed and would have been assigned alternative work, but could not be contacted to take it up. Mr A also confirmed that he had not communicated the change in the usual assignment to the tour to the Transport Foreman, Mr B as all of the driver and coach assignments are recorded on the daily allocation sheet. He stated that it was usual for drivers and driver/guides to be pro-active in contacting the Respondent for their schedules and had the Complainant contacted the office he would have received his schedule showing that he had been assigned to airport transfers and not to the tour in question. He maintained that there had been a mix-up and he had tried to contact the Complainant by phone on 29th July 2019 and left a message for him to return his call. He said that “despite his best efforts and the efforts of other members of the transport team”, the Complainant could not be contacted. He confirmed that he does not have a record of these calls. He accepted that after he had received the letter from the Complainant dated 29th July 2019, he made no further effort, either in writing or by telephone to contact him and presumed that he had left his employment. He said that it is a classic driver trait that if they do not want to work, that they just do not answer the phone. In response to the question as to whether it was reasonable for the Complainant to believe that his employment had been terminated after what had happened on 15th July 2019, Mr A acknowledged that his reaction was reasonable, but maintained that he could not be contacted to assign alternative work to him. In all the circumstances, he contended that this compliant should not succeed.
Evidence by the Transport Foreman, Mr B, on behalf of the Respondent
Mr B gave evidence relating to his role and duties as the Transport Foreman and recollection of the events that unfolded on 15th July 2019. He stated that he managed the Respondent’s coach yard where his primary function was to rectify any issues arising and ensure the timely dispatch of service coaches and tour coaches. His duties included checking that drivers reported for duty on time and completed their preparation checks. On the morning of the 15th July 2019, he familiarised himself with the day’s roster of drivers, coach assignments and overnight driver accommodation. He had been surprised to see the Complainant arrive at the coach yard that morning as he usually required pre-night accommodation on site. The Complainant had approached him stating that his coach was gone. Mr B had checked the drivers’ allocation roster and the Complainant was not listed to take the tour that week. He cross-checked this on the Coach Manager’s system to ensure that an error had not been made and again the system had driver/guide 2 assigned to work on the tour and not the Complainant. He also checked his e-mails for any changes or last minute updates regarding the assignment of drivers but there were none. He advised the Complainant that he was not assigned to the tour that week and asked who had confirmed his assignment to the tour as it was custom and practice that this was communicated well in advance but he had not responded. When he confirmed that the Complainant was not assigned to the tour, he angrily stated: “somebody else is doing my work” and stormed off saying: “I’ve had enough of this- you will never see me again” before driving out of the coach yard. He found the entire exchange somewhat unusual and appraised the Duty Manager of what had occurred when he arrived at 7.30am. The Duty Manager checked all the appropriate systems and confirmed that as the Complainant had not been contactable and the tour had to be assigned to a different driver because he had failed to confirm his availability to work that week.
Evidence by a Manager of the Third Party Tour Operator, Ms C, on behalf of the Respondent
Ms C gave evidence regarding her position with the Third Party Tour Operator and her role in relation to the events giving rise to this complaint. She confirmed that she managed tours in Ireland and was responsible for their operation and underlying contracts. She also confirmed that the Respondent had the contract to provide the coach and driver/guide services on a number of seasonal tours. She stated that she had worked with the Respondent for many years and that they had an excellent working relationship.
Ms C also gave evidence relating to quality of the Complainant’s work and the very positive nature of the feedback received from their tour clients over the years. She confirmed that she had been very happy with his work and that at one stage she had said to him words to the effect that the tour in question “is all yours, make it work”. Whilst she had some input into the driver/guides assigned to the tour, she did not have control over the specific assignment of a driver/guide to a tour which was a matter for the Respondent.
Ms C recalled a telephone discussion which one of her colleagues had with the Complainant regarding the horse-drawn tour supplier on 11th July 2019 in her presence. The Complainant had indicated that he would not work with a particular supplier on the tour route with whom he had taken issue. She had been very put out to be told by a driver/guide which suppliers he would and would not work with. She confirmed Mr A’s account of their telephone call to discuss the issue. In particular, she confirmed that she had requested that the Complainant not be scheduled for any further tours operated by the Third Party Tour Operator.
When questioned, Ms C agreed that she had not voiced her concerns or dissatisfaction with the Complainant directly or given him any indication that she was unhappy with him arising from his conversation with her colleague. Whilst it was not down to her, in hindsight perhaps this should have been explained but it had been a very busy time. She accepted that it was reasonable for the Complainant to express his concern regarding the safety/quality of services being provided by suppliers during the tour.
Preliminary Issue – Whether Complainant has one year’s continuous service:
At the outset of the first hearing, Mr A submitted that the Complainant did not have the requisite one year’s continuous service to pursue a complaint of unfair dismissal on the basis that he was a seasonal worker. This was rejected on behalf of the Complainant in circumstances where it was not in dispute that the Complainant had worked each tourist season from April until October during each year of his employment with the Respondent from 2016-2018, resuming again in April 2019 before his employment ended on 15th July 2019. I reserved determination of this issue until the substantive evidence was heard.
It was not disputed that the Complainant had worked in excess of sixty hours weekly per week away from home as a driver/guide on a coach. These periods of employment corresponded with the tourist season and were by mutual agreement. The Complainant was furnished with a P45 for the purposes of obtaining social welfare during the off-season. It was also mutually agreed that Complainant would return to work with the Respondent the following season and remained on its books as such. It was common-case that the Complainant had never been furnished with a written statement of the terms of his employment under the Terms of Employment (Information) Act 1994. No records confirming the actual start and finish dates of his employment within the last year of his employment were furnished on behalf of the Respondent. The contention being made on behalf of the Respondent appeared to be that there was a gap in excess of twenty-six weeks between his 2018 and 2019 periods of employment. On behalf of the Complainant, a final payslip for 2018 dated 24th October 2018 including holiday pay and a Department of Social Protection record of a start date with the Respondent on 29th April 2019 was furnished. A P45 with a cessation date of 19th October 2018 was also furnished. Mr A accepted that these did not confirm the dates of employment.
Section 2(1)(a) of the Unfair Dismissals Act 1977 provides: “Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons: (a) an employee… who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him.” Section 3(4) of the Act provides: “The First Schedule to the Minimum Notice and Terms of Employment Act, 1973, as amended by Section 20 of this Act, shall apply for the purpose of ascertaining for the purposes of this Act the period of service of an employee and whether that service has been continuous.” Section 1 of the Minimum Notice and Terms of Employment Act 1973 (as amended) defines a year as “any period of fifty-two weeks”. Relevant to the facts in the instant case, Paragraph 1 of the First Schedule of the 1973 Act provides that service shall be deemed to be continuous unless it is terminated by the dismissal of the employee or by the employee voluntarily leaving his employment. Paragraph 3 provides that a lay-off shall not amount to the termination by an employer of the employee’s service. Paragraph 8 provides that a (full-time) employee must have been normally expected to work for at least eighteen hours per week. Paragraph 10 provides that if an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of (a) a lay-off, (b) sickness or injury, or (c) by agreement with his employer, such period shall count as a period of service. Section 10 of the Redundancy Payments Act 1971 provides that an employee’s employment shall be presumed to have been continuous, unless the contrary is proved. Section 11 of the Redundancy Payments Act 1967 defines ‘lay-off’ as arising where an employee’s employment ceases by reason of the employer being unable to provide work to the employee and where it is reasonable for the employer to believe that the cessation will not be permanent and where the employer gives notice to this effect to the employee.
Firstly, where it is undisputed that the Complainant was employed by the Respondent on a seasonal basis from 2016-2019 and there was no evidence of termination by either Party for the intervening periods, I am satisfied that at all material times between April 2016 and July 2019, he remained an employee and the periods between employment should properly be considered as either lay-off or absence by agreement. In this respect, the issuing of a P45 is not necessarily proof of termination and indeed it is not disputed in the instant case that the Complainant remained on the Respondent’s books and was expected to return to work at the beginning of each tourist season. As confirmed in Ryan Redmond on Dismissal Law, 3rd Ed, 2017 at para 22.19 relying on Farrell -v- Farcourt Foods Ltd UD/610/1989: “An employee on lay-off has not had his contract of employment terminated and in such circumstances the issuing of a P45 does not necessarily constitute a termination.” The next issue that falls to be determined is whether the Complainant was absent for more than twenty-six weeks between consecutive periods of employment.
In the absence of any evidence to the contrary including start/finish dates and a written statement of terms and factoring in the Complainant’s entitlements under the Organisation of Working Time Act 1997, I am satisfied on the balance of probabilities that he was not absent from his employment for more than twenty-six weeks between consecutive periods of employment. Consequently, I am satisfied that the Complainant has the requisite one year’s continuous service within the meaning of the Unfair Dismissals Act 1977 for the purposes of bringing a complaint of unfair dismissal. Having determined that I have jurisdiction to adjudicate on this complaint, I will proceed to determine the issue of whether there was a dismissal and if so, whether that dismissal was fair within the meaning of the Unfair Dismissals Act 1977.
Findings and Conclusions:
Relevant to the case being made on behalf of the Complainant, Section 1 of the Unfair Dismissals Act 1977 provides: ““dismissal”, in relation to an employee, means (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee.” As set out in the caselaw cited on behalf of the Complainant, where there is a doubt as to dismissal, an objective test has been applied by the various employment fora, namely that set out in in Devaney -v- DNT Distribution Company Ltd UD412/1993 being “…what needs to be considered is how a reasonable employee in all the circumstances would have understood the employer’s intention.”
Whilst accepting the Respondent’s position that a coach driver could be assigned to any work required, given that the Complainant had been assigned to the same tour for several seasons, referred to as his tour by Ms C, and in the absence of any notification to the contrary or written terms, I find that it was reasonable for him to consider this as his regular work. Based upon the non-contested facts alone, I am also satisfied that a reasonable employee in the Complainant’s position would have understood himself to have been dismissed in all the circumstances. Specifically, the fact that he was not assigned to his regular tour without any notification that an issue had arisen with the Third Party Tour Operator, coupled with the failure by Mr A to ring him immediately and clarify the position following the exchange in the coach yard on 15th July 2019 along with the failure to follow up in writing to confirm his employment status are sufficient to reach this conclusion. It is therefore unnecessary to resolve any conflicts of fact arising. In particular, whatever form of words were exchanged between Mr B and the Complainant in the coach yard on the morning of 15th July 2019 do not change the undisputed position that he was not assigned to his regular tour. Even if I accept that the Transport team attempted to call the Complainant to offer him alternative work beforehand or afterwards, I consider that a reasonable employer of the Respondent’s size should have confirmed this in writing and attempted calls alone are wholly inadequate for such a serious matter.
Having determined that the Complainant was dismissed, I must now consider whether his dismissal was fair. Section 6(1) of the Unfair Dismissals Act 1977 provides: “Subject to the provisions of this Section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The remainder of Section 6 provides for dismissals deemed to be unfair/fair including those arising from competence, conduct, redundancy and incapacity. Arising from this statutory definition, the employer bears the onus/burden of proving that a dismissal was not unfair. In the instant case, the Respondent has not put forward any evidence to show that there were substantial grounds for the Complainant’s dismissal. I am therefore satisfied that the Complainant was unfairly dismissed within the meaning of the 1977 Act.
Decision:
Section 8 of the Unfair Dismissals Acts, 1977-2015 requires that I make a decision in relation to this complaint of unfair dismissal in accordance with the relevant provisions. For the aforesaid reasons, I find that the Complainant was unfairly dismissed by the Respondent on 15th July 2019. Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress and the various factors which should be considered when determining the amount of compensation. I consider it just and equitable in all the circumstances to award a sum of €7,700 in compensation, being equivalent to remuneration for the remainder of the tourist season and direct payment of same by the Respondent within 42 days herewith.
Dated: 3rd February 2021
Workplace Relations Commission Adjudication Officer: Aideen Collard
Key Words: Unfair Dismissal – continuity of service – computation of service – doubt as to dismissal