Complainant

Respondent

Anonymised Parties

 A HGV Driver

 A Transport Company

Representatives

  Self-Represented

 Owner Manager and Accountant

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00038898-001

26/07/2020

The issue in contention was the alleged Constructive Dismissal of a HGV driver by a Transport Company.

The employment had commenced in January 2018 and ended on the 10th of June 2020. The rate of pay was €650 nett for an alleged 60-hour week.

When initially employed he was expected to drive both an Articulated Truck and a Rigid Body truck. He drove both as required.

In early 2019 he was informed by the Respondent employer that work was slack and that he should go on to a 3-day week. He refused. In September of 2019 he was asked to take holidays and days off due to a suggested lack of work. A casual driver was hired at this time to drive the Rigid body truck.

The Complainant continued in full time work from September 2019 until March 2020 when he was forced on to a Three-day week. At this and all later times the Articulated (The Artic) Truck was on the road 5 days a week and the Rigid likewise but being driven by the Casual. He sated that he was being denied full hours on the Artic and given no hours on the Rigid. This was in clear breach of his employment contract.

He attempted to discuss the situation with the Respondent but was fobbed off with excuses regarding Covid 19 and reductions in work which were not true. The Respondent was denying him his full hours while work was there. The Respondent employer was arranging matters and unfairly reducing his driving hours to force the Complainant to resign which he did on the 10th June 2020.

The Complainant did not present a written submission but gave extensive oral evidence to the Hearing.

The Respondent submitted a brief written submission and accompanied by his Accountant made a lengthy verbal presentation to the Hearing.

The Respondent stated that the Complainant had come into his office on the 8th June 2020 and verbally told the Respondent employer that he was leaving the employment the following day. This was confirmed by a text message the following day and the employment ended on the 10th June. The Complainant took up a new full-time employment on the 15th June. This was not denied by the Complainant.

As background the Respondent explained that the Company is a very small operation with just two trucks – a Rigid and an Artic. It has one customer. The business is the collection of raw animal hides from slaughter houses/meat plants and delivery to a Hide processing plant in Kildare. The prepared hides are then shipped to Dublin Port for export to China and Italy.

In September 2019 the Farmer picket of all Meat plants led to a very significant slowdown in the business and the Complainant was asked to take holidays and time off. He had refused. Despite this he was retained in full time work. In late January 2020 Covid 19 breaks out in China, the main export market followed closely by Italy, the secondary market. Export orders were cancelled, and the business dropped off rapidly due to a lack of demand.  By March 2020 the Company was left with no option but to apply for the Temporary Wages Subsidy Scheme – the TWSS - to retain the Complainant (on a three-day week) and the other driver.

The other casual driver who drives the rigid truck only works a maximum 24 hours a week as he is a “Carer” and is on the Carers allowance. He does not have a full HGV licence.

The position stabilised somewhat by April 2020 and the reduced export demand can be facilitated by the Complainant being on a three-day week and the reduced hours of the Rigid driver. On the days that the Complainant is not scheduled to work it has happened that shipping schedules at Dublin Port required the Artic truck to make a delivery. In these instances, the Owner himself drove the Artic truck as the casual rigid driver does not have a full HGV licence. The Respondent resolutely denied that the Artic is on the road for five days a week as claimed by the Complainant.

As regards the point that the Complainant could have driven both the Rigid and the Artic this would have been physically impossible as both had completely different schedules and functions. The Rigid was used to collect raw hides in the afternoon and the Artic was used to deliver processed finished hides to Dublin Port in the mornings. It would have been physically impossible for one driver to do both jobs, leaving aside any obvious breaches of the Driver Working Time /Road Safety legislation.

With the assistance of the TWSS the situation was far from ideal for the Company, but the Complainant was being kept in employment. The Respondent had no desire to lose the Complainant and if the Company could survive the current troubled times the Respondent was sure that full time work would have resumed.

It was well known that the Complainant has secured other driving work for the two days he was off from the Respondent. It was not surprising that the Complainant had easily secured another full-time job as he was a good worker and HGV drivers are in demand. There was no suggestion that he was “forced out” – it was a straight forward resignation to go to another full item 5 day driving job when the Respondent could only offer three days.

The Respondent Accountant then gave evidence, supported by Financial Sheets, of the Company financial position and in particular the impact that Farmers blockade and the Covid 19 demand collapse had had on the business.

3:1      The Relevant Law.

The principal legalisation is the Unfair Dismissals Act, 1977 supported by SI 146 of 2000 - Code of Practice on Grievance & Disciplinary Procedures and considerable case law precedent.

3:2       Constructive Dismissal

In relation to Constructive Dismissal, the issue in this case, the Adjudicator in A Maintenance Supervisor v A Charity ADJ 00002881 set out a comprehensive review which is worth quoting.

 For a claim of constructive dismissal to be properly brought under Section 8 of the Unfair Dismissals Acts 1977-2015, the Complainant must satisfy the definition in Section 1(b) which provides:

 “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,…”

 As endorsed by the Labour Court in Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

 The reasonableness test assesses the conduct of the employer and whether it

“…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

According to the Irish Supreme Court in Berber -v- Dunnes Stores [2009] E.L.R. 61:

 “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

Unlike the position where dismissal is not in issue, this definition firmly places the onus/burden of proof on the employee to show that the resignation was justified in all the circumstances.

Furthermore, in the case of use/non-use of Employment Procedures the oft quoted text is from the case of Harrold v St Michael’s House, [2008] E.L.R. where the determination quoted from Redmond, Dismissal Law in Ireland (2002):

“There is something of a mirror image between ordinary dismissal and constructive dismissal. Just as an employer for reasons of fairness and natural justice must go through disciplinary procedures before dismissing, so too an employee should invoke the employees’ grievance procedures in an effort to revoke his grievance. The duty is an imperative in employees’ resignations.”

Accordingly, therefore, a failure to use internal Procedures prior to a Resignation has to be considered carefully by an Adjudicator in any consideration of a constructive Dismissal.

However, as all cases rests on their own facts and particular evidence it is necessary to look at these now. The standard Constructive Dismissal tests referred to above of (A) Breach of Contract and (B) Unreasonable Behaviour will be used as a template.

3:2:1       Review of Evidence both Oral and Written

Much of this case rested on direct oral evidence from the Complainant and the Respondent Owner and Accountant.

(a)    Test One - Breach of Employment Contract as the basis of a constructive Dismissal claim

There was no written contract and the arrangements were purely on the basis of a Verbal agreement at time of first employment.

As set out in the Legal paragraphs above the breach of the Employment contract by the Employer has to be so bad as to leave the “reasonable” Employee with no option but to resign.

The Complainant gave oral evidence that he had been hired in January 2018 to drive both the Rigid Truck and the Artic Truck. By the Employer hiring, in early 2019, a casual driver for the Rigid Truck for 24 hours a week the Employer had broken the Employment Contract as the new employee effectively prevented the Complainant from having the Rigid Truck option on days the Artic was not required.

The Respondent in his evidence explained that the actual operation required two drivers -one to collect hides in the Rigid in the afternoon while the other was on the Dublin Port run with the Artic. It was not physically possible to do both trips with one driver. When the downturn due to the Covid 19 crisis developed there was only three days work for the Artic and the Complainant was put on a three-day week supported by the Government Wage scheme. If the Artic was unexpectedly required to go to Dublin Port the owner Respondent would drive it himself or in an absolute emergency hire a casual driver. There was no deliberate plan to keep the Complainant on short hours and it was known that he was getting other driving work elsewhere on the two “off” days.

The Rigid driver was on what was effectively a Social Welfare supported Carer’s Scheme and his limited hours could not realistically be reduced any further.

The Respondent strongly maintained that he had responded to the Covid crisis by regrettably putting the Complainant on a Three-day week. He did not want to lose him and had the expectation of returning to normal hours as soon as possible. The three-day week was a temporary measure.

The Respondent pointed out that he had kept the Complainant on a full-time basis much longer than was reasonably or financially wise.

In his oral evidence the Complainant argued that the Respondent could have been more flexible between the Rigid Truck and the Artic. He could easily have driven both over five days. He agreed that he had resigned to take up another full time (5 days a week) job. He had been left with no choice as his personal financial circumstances made this job move necessary. The wages were better (€700 a week) in the new job but it required more travel away from home.

The Oral evidence was open to cross questioning by both Parties.

Test One: Adjudicator View

In reviewing all the evidence presented there was no basis for a claim that the Respondent employer had deliberately or for a bad motive broken the understood Employment Contract. The job required two drivers and when the Covid crisis came there was no option but to put the Complainant on a Three-day week as the demand for the Artic truck was not there on a regular 5-day basis. As an economy measure the Owner /Respondent would drive it himself, if required, on the two “off” days.

A Constructive Dismissal breach of contract claim has to be based on what is accepted as very bad behaviour by an Employer in breaking an employment contract such as to leave the Employee with no option but to resign. There was no evidence of this.

Accordingly, the first Constructive Dismissal Test of very bad Breach of Contract does not apply in the Complainant’s favour.

(b)         Test Two:  Unreasonable Behaviour by the Employer as the basis for a Constructive Dismissal Claim.

In the Oral evidence from the Parties it was clear that the Respondent employer had at all times tried to keep the Complainant on a five-day week. The evidence cited was that during the Farmers Blockade of meat factories in late 2019 the Respondent had not forced the reduced hours issue as the Complainant was clearly against it. Likewise, during the start of the Covid crisis the Complainant had been kept on full hours as long as possible. Only for the Government TWSS Scheme the Company would have folded and a three-day week was the only option possible.

It was well known and not denied that the Complainant was fully employed by another Company on the two “off days” from the Respondent. The allegation made by the Complainant that the Respondent had hired another full-time driver to do the Complainant’s work was absolutely denied. The Respondent owner maintained that the finances of the business were now so much on a knife edge that he was doing most of the Artic driving himself but occasionally using a casual driver on a contract job by job basis if it was absolutely necessary.

There was a considerable verbal exchange on this point between the parties but on balance and taking the financial figures into account the evidence had to tend in favour of the Respondent.

The Respondent Accountant gave detailed evidence on the sharp deterioration of the Company finances in late 2019 and early 2020.

As a final aside the Legal precedents often refer to the need for a Complainant to utilise internal procedures before resigning. There were no formal procedures and no written contract, but the oral evidence pointed to a brief conversation between the parties on the 8th June where the Complainant resigned. In the verbal exchanges this was not denied as was the fact that the Complainant began another job almost immediately.

Test Two: Adjudicator View

In difficult times the Respondent employer acted in a reasonable manner to reduce the driving hours as there was no work available. This was not to the Complainant’s liking, but the evidence clearly pointed to a major financial problem in the Respondent Company.

On balance and considering all the evidence presented the claim for Unreasonable Behaviour such as to allow a Constructive Dismissal to claim to succeed is not supported.

3:3           Final Summary

Taking the Two Tests of Breach of Contract and Unreasonable Behaviour as a basis the evidence does not support a Constructive Dismissal claim.

The claim fails – there was no Constructive Unfair Dismissal

Constructive Dismissal, Reasonable Behaviour, Breach of Contract, Farmer Blockade, Covid 19 crisis.