FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : CCL LABEL LTD (REPRESENTED BY ARTHUR COX, SOLICITORS) - AND - MR GERARD BYRNE (REPRESENTED BY BUSINESS LEGAL) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No(S) CA-00030613-001, CA-00030613-002, CA-00030613003 DETERMINATION: The Complainant claims that the actions of the Respondent in making his role redundant, while refusing to pay him redundancy or to offer him a suitable alternative role, made his continued employment intolerable and that he was constructively dismissed in March 2019. This is denied by The Respondent. An Adjudication Officer, ‘AO’, decided that the claim under the Act was not well founded. The Complainant appealed this Decision to this Court. In November 2018, the Complainant was told by the Financial Director and the Production Manager that his role was redundant and that they wanted the Complainant to become self employed and drive his own van. The Complainant declined this request. As an alternative, it was suggested that the Complainant could drive a large truck for the Respondent, who did some preliminary work in evaluating and costing a 7.5 tonne truck. The Respondent could not confirm the wage for this position. The Respondent confirmed an unwillingness to make a statutory redundancy payment. At a second meeting that month, an offer was made to the Complainant to give up driving and to take on work packing, slitting(a multi-blade machine) and working in the warehouse. The Complainant declined due to physical issues with his back and neck. The salary offered was below his then remuneration. In December 2018, the Complainant’s union rep. was told that the option for the Complainant to remain in his existing employment was not available. In particular, the Respondent favoured the option of the Complainant driving the heavy truck. In fact, for the Complainant to drive such a truck, he would require a Driver Certificate of Professional Competence, (CPC), which he has never held and which requires up-dating of 35 hours’ training over 5 years. When the Respondent advanced its intention to get the Complainant to drive a truck, the Complainant resigned. The roles offered to him were, in no way, suitable and would have been dangerous to the Complainant. The Complainant believes that the Respondent wished to make him redundant but was not prepared to pay his statutory redundancy entitlement. He was forced to resign due to unreasonable behaviour by the Respondent. He was informed that his position was redundant but was not offered any suitable alternative employment. The Complainant’s constructive dismissal arose because the Respondent had ceased, or given the expectation that it would cease, to require the Complainant to carry out work of a particular kind, namely van driving or that such work had diminished or was expected to diminish. The Respondent offered three unsuitable roles to the Complainant, at either reduced or unconfirmed remuneration. The Respondent’s key incentive seems to have been to save itself from making a redundancy payment. As the Complainant had over 30 years’ service with the Respondent, this was most unreasonable. The Complainant was reasonable at all times and only resigned when he was pressed to drive a 7.5 tonne truck and to manage its heavy cargo despite his physical limitations. The conduct of the Respondent in attempting to force the Complainant to do work for which he was not qualified, trained or physically capable in order to avoid making a redundancy payment, should be taken into account in assessing compensation. Each of the offers made to the Complainant were offers of unsuitable employment. The offer of self employment is not an offer of suitable employment. In respect of the other offers, a man of 60 years of age cannot be expected to perform such physical roles, in circumstances where he had recently undergone neck and back surgery nor could he be expected to drive a 7.5 tonne truck when he had never driven one, apart from driving lessons, and where he did not have the necessary CPC. This was also in circumstances where his remuneration was not set out, except regarding the operation of the ‘slitting’ machine, which would involve a drop in remuneration. The conduct of the Respondent entitled the Complainant to resign. He was told his role was redundant, not issued with the required redundancy notice and offered unsuitable alternatives. The response that if the Respondent was to be given a redundancy payment, ‘everybody would want one’ is an unacceptable position for the Respondent to take. The Complainant cannot be disadvantaged by the Respondent’s failure to issue the appropriate redundancy documentation. The Complainant is entitled to be paid his statutory redundancy amount of €39068.11. While he secured alternative employment and there are no ongoing losses, he lost this amount because of the actions of the Respondent. The Respondent seeks to rely on a ‘flexibility’ clause in the Complainant’s contract. The Complainant did not receive a contract until 2016, at which time he was assured that the contract would not change his conditions. The Complainant, by engaging at length with the Respondent, effectively engaged in a form of grievance procedure. The Complainant’s contract contained a flexibility clause to allow for him to undertake duties other than van driving. When the Complainant was employed in 1983, he held a full driving licence, (A,B,C and D) and owned a three tonne flat-back truck. On this basis, around 1987, he moved to working in Deliveries, using his own van. He continued to be paid as an operative and was paid mileage for the use of his van, ( in 2018 this totalled €8681). In 2017, it became clear that the Complainant was under- utilised. The number of small deliveries to Dublin based clients had dwindled. In late 2018, the Respondent commenced a process of consultation with him. A number of options were discussed, including the Complainant becoming self-employed and tendering for the business. He indicated that he was not interested in this option. A further option of taking on larger deliveries to two major clients was discussed. The Respondent indicated a willingness to invest in a flat-bed truck to facilitate this. The Complainant raised the question of redundancy. This was not raised by the Respondent, who continued to need somebody to carry out deliveries and because there were vacancies in operations which, in light of his previous experience, the Complainant could fulfil. The options were explored again at a further meeting. In particular, the option of a truck being purchased was explored. The Respondent noted that it would pay the going rate. The Complainant said that he was not interested and again raised the question of redundancy. He was advised that this did not arise as, ultimately, the Respondent would have to hire a replacement driver. At a subsequent meeting, the Complainant’s union representative raised the question of redundancy and the Respondent confirmed that this was not possible. This was confirmed again at a meeting with the union representatives in January 2019, at which the Respondent reiterated the three options. Contrary to what is claimed, the option of driving the truck would have increased the Complainant’s remuneration and he would have been relieved of the maintenance costs for his van. At a meeting the next day, the Complainant stated that he did not wish to become self-employed or to run a machine but that he was happy to continue to help out in Stores when he was not delivering. The Respondent agreed to allow this to continue while they explored the purchase of a truck. A truck had been selected and customers had been consulted when the Complainant tendered his resignation orally on 13 March 2019, giving one week’s notice. It is understood from his complaint form that the Complainant took up employment from 25 March 2019. The belief of the Complainant that the Respondent wished to make him redundant is ill conceived. The Complainant was not dismissed by the Respondent either by redundancy or otherwise. His circumstances do not meet the requirements of the Act. He decided to resign voluntarily.. Other duties were discussed with the Complainant, the status quo remained for the time being, while the Respondent explored the option of purchasing a truck. Each of the alternatives put to the Complainant were suitable for him. In particular, he was employed as a driver and one of the alternatives put to him was to continue as a driver. It is not true to say, as asserted, that the Complainant would have an unguaranteed level of income if he had become self employed. The Respondent agreed that, if this option was taken, the Complainant would continue in deliveries and could tender for all Dublin deliveries in a new truck. The claim that the ‘slitting’ machine is dangerous is unfounded and this option would not have resulted in a loss of remuneration. The assertion that the vehicle being proposed for the Complainant was so materially different from that being used by the Complainant as to render this alternative unsuitable is simply incorrect. The vehicle being driven by the Complainant was 2.8 tonnes,5 metres long and 2.3 metres wide; that proposed was 7.5 tonnes,7.81 metres long and 2.04 metres wide. The Complainant was licenced to drive this vehicle, could do so without meeting further requirements, except to meet CPC requirements over a five year period after he commenced to drive the vehicle. The operation of the new vehicle would have been less physically intensive as loads are mechanically loaded and unloaded to that vehicle. The Complainant’s remuneration would have increased. If any training had been required to secure the CPC, this would have been funded by the Respondent, though it appears the Complainant would have enjoyed acquired rights because his licence was secured prior to 2009. The role working on the machine was also suitable for the Complainant, in light of his previous experience. The Respondent denies that the Complainant was told that redundancy could not be paid as, otherwise, everybody would look for it. The Respondent also denies that it wished to make the Complainant redundant, while avoiding the payment of redundancy. The Complainant’s role was not redundant. As the AO noted, while the need for a small van driver had diminished, the need for a driver had not, so there was not a redundancy situation. In constructive dismissal cases, it is well established that the onus of proof is on the employee. There is no breach of contract and there is a clear contractual basis for the Respondent to consider other duties for the Complainant. Therefore, only the ‘reasonableness’ test for constructive dismissal is relevant. In McCormack Core v. Dunnes Stores, UD1421/2008, the EAT noted that an employee is required to show that they had no option other than to resign if they are to succeed in determining that there was a constructive dismissal and that, further, the employee would have to show that the employer’s conduct was so unreasonable as to make continuing the employment intolerable. The employee must show that either a breach of contract or unreasonable behaviour was so grave that it justified terminating the employment. The test of ‘reasonableness’ was stated in Western Excavating (ECC) Ltd. v. Sharp, (1978) ICR 221,226 as being where the employer conducts himself so unreasonably that the employee cannot fairly be expected to put up with it. In this case, the Respondent had an objective reason for restructuring the delivery role. Considerable effort was made to accommodate him. There would have been no loss of remuneration. The consultation process was ongoing when he resigned. The Complainant did not exhaust the Respondent’s Grievance Procedure prior to resigning, see Canway v. Ulster Bank Ltd., UD 474/1981 and McCormack Core v Dunnes Stores. .The Complainant never invoked the procedure, which is set out in his contract, nor did he seek to use the company’s Disputes Procedures. It was not reasonable for the Complainant to resign. He has failed to establish any breach of contract or any unreasonableness on the part of the Respondent. The Complainant suffered little if any loss as he took up alternative employment very quickly. The applicable law Unfair Dismissals Act 1977-2015 (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, (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, 6.— (1) 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. 7.— (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 adjudication officer or the Labour 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) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances There are two tests to establish if a constructive dismissal occurred; the ‘contract test’ ie that there was a breach of contract, such that an employee is entitled to terminate their employment and the ‘reasonableness test’ ie that the behaviour of the employer was so unreasonable that the employee was entitled to terminate their employment. The Complainant’s contract required him to undertake driving duties. It contains a flexibility clause to allow him to be assigned to other duties. Indeed, the Complainant worked in Stores, in addition to his driving duties. No real substantive argument was made to the Court that a breach of contract occurred. However, for the sake of completeness, the matter was considered by the Court. In particular, the Court considered if the actions of the Respondent in looking at alternative roles for the Complainant could be said to have breached his contract. The scale of van deliveries had diminished. In such circumstances, the Respondent was entitled to consider re-configuration of the Complainant’s work. To do so was not a breach of contract. It is contended for the Complainant that the Respondent acted unreasonably as the Complainant’s role was redundant and, in order to avoid paying redundancy, the Respondent offered unsuitable alternatives to the Complainant. In a parallel case, taken under the Redundancy Payments Act, the Court has found that the Complainant’s role was not redundant and that the Respondent had an ongoing need for deliveries but that the option of using the Complainant’s van for this purpose was no longer desirable. The Court found, therefore, that the alternative offered to the Complainant of continuing as a driver but using a larger vehicle did not amount to redundancy. It follows, therefore, that the Court concludes in the instant case that the Respondent did not act unreasonably and, as a consequence, the resignation of the Complainant cannot be considered to be a constructive dismissal. Determination The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Shane Lyons, Court Secretary. |
