Complainant

Respondent

Anonymised Parties

HGV Driver

Haulage Company

Representatives

Ruairi De Burca, De Burca Solicitors

 ESA Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035940-001

30/04/2020

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

CA-00035940-002

30/04/2020

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

CA-00035940-003

30/04/2020

The complainant commenced employment with the respondent as an HGV Driver on 26 September 2019.  The employment terminated on 5 February 2020.  The complainant claims that the termination of his employment was related to his exercising his rights under the Protected Disclosures Act, 2014.  The complainant further claims that he did not receive a statement in writing of his terms and conditions of employment nor did he receive his statutory minimum period of notice on termination of his employment.  The respondent rejects these clams.  

These complaints were heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020 which designates the WRC as a body empowered to hold remote hearings.  

In January 2020 the complainant reported a number of faults including brake pads on a truck maintenance form. The complainant was informed the following day that the faults had been rectified.  Within a week, however, a mechanic found fault with the pads.

The complainant formed the opinion that the chief mechanic had by-passed the safety system on the vehicle and informed the fleet manager accordingly.

Also, in January a major customer of the respondent requested drivers to sign a form which the complainant believed put the responsibility on drivers as regards the stability of the ground for tipping.  The respondent agreed with his reservations but advised the complainant to sign the document.

The complainant signed the document but with a rider to the effect that it was the customer’s responsibility to ensure ground was level and solid.

The complainant was called to the management office on 5 February 2021 without notice.  He was shown a video in relation to a complaint received about his driving and was then dismissed.

The complainant did not receive any notice payment.

The complainant did not receive any contract from the respondent in relation to his terms and conditions of employment.

The complainant’s employment was terminated within his probationary period of 6 months.

The allegations that the complainant seeks to define as protected disclosures are not protected disclosures but are in fact part of his normal duties.

A client implemented protocols for all drivers entering their site.  All drivers except the complainant complied with the client’s requirements.

The complainant did not utilise the company grievance procedure.

The complainant’s dismissal arose from complaints received from members of the public with regard to his driving.

The complainant received written terms and conditions of employment upon commencement of his employment but did not return a signed copy of his contract.

The complainant’s last day of employment was 5 February 2020 and he was paid until 11 February 2020.

At the commencement of the hearing the respondent clarified the correct title of the company and it has been amended accordingly.

The respondent operates a haulage company employing approximately 70 employees.  The complainant, who has 15 years’ experience as a truck driver, was interviewed by the Managing Director of the respondent and was offered employment which commenced the following day, 26 September 2019.  It is accepted that the complainant was employed initially as a driver and that it was intended that he would take on additional responsibilities for health and safety.  The rate of pay was €18.36 per hour.

On 15 January 2020 the complainant completed an inspection / maintenance report form regarding his truck and gave it to the fleet service manager.  Amongst the issues raised was that of very low brake pads.  The next day the complainant was informed that the repairs had been completed.  In his evidence the complainant stated that when he collected his truck, he noticed that the wheels had not been taken off and this concerned him as he did not believe that the brake pads could have been properly serviced without removing the wheels.  Some days later the complainant’s vehicle got a puncture and, according to the complainant, the mechanic repairing the puncture was shocked at the state of the brake pads.  The complainant formed the opinion that the chief mechanic had used a diagnostic computer to override the brake sensors.  The complainant stated in evidence that he had got the run-around from management in relation to this matter.  This is denied by the respondent as is the allegation that the truck’s sensors were (or indeed could be) overridden by the diagnostic computer.  The complainant continued to drive that particular vehicle.

The respondent had a significant contract with a particular customer.  Around the end of January this customer produced a document entitled Haulier Safety Requirements for (location) Quarry.  This document listed what was described as the minimum site safety requirements for the site.  These numbered 20 in all.  At the end of the document there was printed in bold type the following statement:

“Please ensure you understand the safety rules for (site) and recognise you could be banned from site if you do not comply.”

The last part of the sentence was underlined for further emphasis.  All drivers using the site were required to sign this document.  The complainant stated that he had never been asked to sign such a document before and that in particular he took exception to Point 8 on the document which stated:

“8.  Tipping must only occur on level solid ground & drivers must ensure it is safe to tip.”

The complainant stated that he was aware of an incident whereby a truck had nearly overturned on the site due to soft ground and that he did not believe that drivers should be asked to take responsibility for this matter.  The complainant voiced his concerns to management.  He stated in evidence that he was informed by the contracts manager that the form was not worth the paper it was written on and that he should sign it in order to keep working on the site.  The contracts manager denies stating that the document was worthless.  On 27 January 2020 the complainant met with the respondent’s MD to discuss his concerns.  In his evidence the complainant stated that the MD agreed with him in relation to his concerns but advised him to sign the document as failure to do so could see him barred from the customer’s site and there could be no guarantee as regards his employment in that event.  The complainant stated that he then signed the document dating it retrospectively to 21 January 2020 and inserting a caveat as follows:

“I am signing this on the basis that it is the responsibility of (customer) to ensure that level solid ground is provided as per point No. 8.” 

The respondent advised that the customer had accepted the signed document and that the complainant had continued to access the site.

On 5 February 2020 the complainant stated that he had finished his normal duties but that at 7 pm he had received a telephone call from the MD requesting that he attend at the office.  The complainant was advised that complaints with regard to his driving had been received from members of the public.  The complainant was then shown dash-cam footage of incidents that had occurred whilst he was driving his truck.  The complainant in his evidence accepted that there were issues as regards his driving.  The complainant was informed that he was being dismissed with immediate effect.  The complainant further stated that he was not advised of a right to appeal and was told he was not entitled to holiday pay.  The complainant also claims that he was not paid any payment in lieu of notice.  The respondent stated that the complainant was paid up until 11 September 2020 and had received all monies due to him.

Complaint No. CA-00035940-002:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015.

Section 2(1) of the Act states:

Except in so far as any provision of the Act otherwise provides, this Act shall not apply in relation to any of the following persons:

(a)    An employee (other than a person referred to in section 4 of this Act) 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 11(1) of the Protected Disclosures Act, 2014, however, states:

The Unfair Dismissals Act 1977 is amended –

(a)    In section 1 by inserting the following definitions:

“protected disclosure” has the meaning given by the Protected Disclosures Act 2014,

“relevant wrongdoing” has the meaning given by the Protected Disclosures Act 2014,

(b)    In section 6 by inserting the following paragraph after paragraph (b) of subsection (2):

“(ba) the employee having made a protected disclosure”,

      (c)    in section 6 by inserting the following subsection after subsection (2C):

“(2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection 2 and that paragraph applies to a person who would otherwise be excluded from this Act by any of the paragraphs (a) to (c) and (e) to (k) of section 2(1)”.

Protection under the Unfair Dismissal Acts does not generally apply to persons with less than I year’s continuous service with their employer.  This restriction does not apply where the dismissal of the employee is because of that employee making a protected disclosure as defined by the Protected Disclosures Act 2014.  The complainant in this case was employed by the respondent from 26 September 2019 until 5 February 2020.  He therefore does not have the one year’s service that is generally applicable to bringing a claim under the Unfair Dismissals Act.  The onus is therefore on the complainant to prove that his dismissal was because of making a protected disclosure.

Section 5 of the Protected Disclosure Act 2014 states:

(1)     For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10.

(2)    For the purposes of this Act information is “relevant information” if –

(a)    in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and

(b)    it came to the attention of the worker in connection with the worker’s employment.

(3)     The following matters are relevant wrongdoings for the purpose of this Act –

(a)    that an offence has been, is being or is likely to be committed.

(b)    that a person has failed, is failing or is likely to fail to comply with any legal obligation, other than one arising under the worker’s contract of employment or other contract whereby the worker undertakes to do or perform personally any work or services,

(c)     that a miscarriage of justice has occurred, is occurring or is likely to occur,

(d)    that the health and safety of any individual has been, is being or is likely to be endangered…

(4)    For the purposes of subsection (3) it is immaterial whether a relevant wrongdoing occurred, occurs or would occur in the State or elsewhere and whether the law applying to it is that of the State or that of any other country or state.

(5)    A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not involve an act or omission on the part of the employer.

(6)    N/A

(7)    The motivation for making a disclosure is irrelevant to whether or not it is a protected disclosure.

(8)    In proceedings involving an issue as to whether a disclosure is a protected disclosure it shall be presumed, until the contrary is proved, that it is.

The Labour Court in the case of Aidan & Henrietta McGrath Partnership v Anna Monaghan, PDD162, said: “The Court must first establish that a protected disclosure was made before it can examine whether a penalisation within the meaning of the Act has occurred.”

The complainant has put forward two incidents which he maintains amount to protected disclosures made by him.  The first incident is in relation to the defective brakes on his vehicle which the complainant reported to management about 15 January 2020.  The complainant was advised on the following day that his truck was repaired.  He said in evidence that he noted that the wheel did not appear to have been removed during the repair procedure.  A few days later he suffered a puncture and states that the mechanic who fixed the puncture remarked on the dangerous state of the brakes on that wheel.  The respondent submitted maintenance report forms and job cards in respect of this matter, and they appear to verify that brake pads were replaced on 21 January 2020.  The complainant in his evidence stated that the sensors had not shown that there was a fault with the brake pads between the time he had collected the vehicle after repair and the time he got the puncture.  As a consequence, he formed the opinion that the sensors had been deliberately overridden by the use of a diagnostic computer.  I note that on 28 January 2020 the complainant submitted a Truck Maintenance Report which amongst other issues stated: “Brake sensors need to be switched on.”    The resultant Job Card dated 1 February 2020 included the note: “Brake sensors cannot be switched off.”  The complainant stated that he had raised his concerns in relation to the issue of sensors in trucks being deactivated by the Maintenance Dept. but that he had failed to get a satisfactory response.

In response the respondent has stated that reporting faults on a truck is a fundamental part of the complainant’s job.  The respondent’s chief mechanic gave evidence to the effect that the vehicle sensors could not be turned off and that the Road Safety Authority had complimented the company on the condition of their vehicles.  The respondent also stated that the only issues regarding vehicle defects brought to their attention by the complainant were those documented on the report cards.

Having considered all the evidence I find that the issues of vehicle defects and bringing same to the notice of the respondent was a matter which was the function of the complainant, as a truck driver, to detect and therefore does not constitute a relevant wrongdoing.  As to the issue that the complainant was of the opinion that the vehicle sensors were deliberately disabled to mask a defect, I find that there is no cogent evidence to the effect that this complaint in this form was made by the complainant to management.  It follows therefore that this incident does not constitute a protected disclosure as defined by the Act.

The second incident upon which the complainant relies is in regard to his initial refusal to sign a form circulated to drivers using a site operated by a major client of the respondent and his subsequent action in adding a personal caveat along with his signature.  The document, as outlined above, consisted of a series of safety requirements for drivers visiting the site.  As noted, the complainant took exception to one rule in particular, i.e., that tipping must only occur on level solid ground and that drivers must ensure that it is safe to tip.  According to the complainant he received this document on 22 January 2020.  The complainant formed the opinion that this clause sought to put responsibilities on drivers that were properly a matter for the client.  He further stated that he was aware that there had been an incident involving a truck from a different contractor nearly overturning on the site.  It is accepted that the complainant discussed his concerns both with the Contracts Manager and the Managing Director although there are differing accounts as to how management responded.  The complainant eventually signed the document with the caveat written in and backdated it to 22 January 2020.  The respondent stated that the client did not raise an issue in this regard and the complainant continued to visit the site.  The respondent also stated that this type of document was not unusual.

I have considered the document in question and note that its purpose was to draw up minimum site safety requirements for drivers visiting the site and thus keep the site incident free.  In particular, I must state that the clause to which the complainant took exception appears to me to be a basic requirement for the safe operation of tipping on site.   It follows therefore that I do not see how bringing objections to the document to the notice of his employer comes within the meaning of a “protected disclosure” as set out in the Act.  There is a Statutory Instrument in relation to the Act, S.I. No. 464 of 2015, Industrial Relations Act 1990 (Code of Practice on Protected Disclosures Act 2014) (Declaration) Order 2015.  Paragraph 30 of the Code deals with the difference between a grievance and a protected disclosure thus:  

30.  A grievance is a matter specific to the worker i.e., that worker’s employment position around his / her duties, terms and conditions of employment, working procedures or working conditions.  A grievance should be processed under the organisation’s Grievance Procedure.

A protected disclosure is where a worker has information about a relevant wrongdoing.

The issue in question relates to the complainant’s duties and working procedures and therefore should be properly termed as a grievance.  I find therefore that this incident does not constitute a protected disclosure within the meaning of the Act.

Complaint No. CA-00035940-001:

This is a complaint under the Terms of Employment (Information) Act 1994 to the effect that the 0mplainant did not receive a written statement of his terms of employment.

The complainant in evidence stated that he had met with the respondent’s Managing Director on 25 September 2019 and as a result of that discussion was offered a job as a driver commencing the following day.  There had been a verbal discussion as regards issues such as wages and his future role in respect of Health & Safety within the company.  The complainant stated that he had never received a written copy of his terms and conditions of employment, nor had he received a Staff Handbook or any other documentation regarding company policies and procedures.  The respondent’s Managing Director (MD) stated that all employees were given a contract on joining the company and that he had given the complainant his contract.  The complainant had not signed his copy and the respondent’s MD accepted that he had not queried this matter.  A copy of the complainant’s contract was presented at the hearing by the respondent.  This copy was signed by the respondent’s MD and dated 26/09/2019.  It was not signed by the complainant.  The complaint’s representative stated that this copy had in fact been created in 2021.

Section 3(1) of the Terms of Employment (Information) Act 1994 states:

An employer shall, not later than2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of employment…

In addition, Section 3(1A) of the Act states:

Without prejudice to subsection (1), an employer shall, not later than 5 days after the employee’s employment with the employer, give or cause to be given a statement in writing containing the following particulars of the terms of the employee’s employment…

The various particulars are set out in the above subsections.

I am presented with two conflicting accounts in regard to this matter.  I accept that the Act does not require that an employee sign his / her statement of employment.  A prudent employer will, however, ensure that there is a verifiable means of proving that they have complied with their responsibilities in this regard.  In weighing up the evidence before me I am bound to state that I am doubtful that the respondent would have issued a document to the complainant for signing and then accepted it back unsigned without raising a query in relation to this matter.  On the balance of probabilities therefore I find that the complainant was not issued with a statement of employment as provided for in Section 3 of the Act.

Complaint No. CA-00035940-003:

This is a complaint under the Minimum Notice and Terms of Employment Act 1973 to the effect that the complainant was dismissed without notice and did not receive any payment in lieu of notice.

Section 4 of the Act states:

(1)    An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2)    The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(a)    If the employee has been in the continuous service of his employer for less than 2 years, one week…

The complainant is claiming that he is therefore entitled to payment of one week’s wages.

The respondent states that the complainant’s contract of employment contains a clause to the effect that if the employee is the subject of summary dismissal during the six-month period of probation then, in that situation, the company is not required to provide notice to the employee.  The respondent further stated that the complainant last worked on 5 February and was paid until 11 February.  I have studied the payslips provided at the hearing and note that the final payslip is dated 11 February 2020 but carries the note that the details are applicable to the week ending 7 February 2020 (Friday).  The amount, €1,087.83, appears to equate to a full week’s pay. 

For the reasons set out above I have decided that a statement of employment was not issued to the complainant.  Having regard to all the circumstances of the dismissal of the complainant I find that he was fully paid up to the 7 February, i.e., two days after the termination of his employment.  I therefore find that the complaint is well founded, and that the complainant is entitled to three day’s pay in lieu of his notice entitlement.  

Complaint No. CA-00035940-001:

This is a complaint under the Terms of Employment (Information) Act 1994.  In accordance with the reasons set out above I find that this complaint is well founded.  I therefore require that the respondent pay to the complainant the sum of €4,000.00 as compensation in this regard.

Complaint No. CA-00035940-002:

This is a complaint under the Unfair Dismissals Acts 1977 – 2015.  I have found that the incidents relied upon by the complainant do not constitute protected disclosures within the meaning of the Protected Disclosures Act 2014.  It follows therefore that that the exclusion of the one-years’ service requirement as provided in Section 6(2) (ba) does not apply and that consequently the complaint is not upheld.

Complaint No. CA-00035940-003:

This is a complaint under the Minimum Notice and Terms of Employment Act 1973.  For the reasons set out above I find that the complainant was entitled to one-weeks’ notice and that from the evidence submitted he received payment for two days following his dismissal.  I therefore find that his loss in this respect amounts to three day’s pay.  I note that his payments varied from week to week, and I have calculated that amount due as equating to €603.30.  I therefore order that the respondent pay to the complainant the sum of €603.30.

Unfair Dismissal Acts     Protected Disclosure Act     Minimum Notice     Terms of Employment (Information) Act