Complainant

Respondent

Anonymised Parties

A Driver

A Road Haulage Company

Representatives

 Ms Dorothy Donovan BL

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-00034513-001

07/02/2020

The Complainant claims that on 24 December 2019 after him returning home from an international trip as an international truck driver the Respondent told him that they were selling the 14-year-old truck that he was driving and that it was not being replaced.

The Complainant said that he was available for work on 2 January 2020. However, his employer had no work for him on this date.

He said that on 10 January 2020 he was offered work, but he declined it, because he had wanted ‘issues in relation to wages and other working conditions addressed’ with the employer which had been ignored previously.

The Complainant said that his employer took exception to this and claims that this was normal as they had done likewise the last number of years and when he challenged them on this once again, they had a “take it or leave it attitude”.

He said that what followed was a cooling off period until the 20 January 2020 when he realised that the working relationship was now strained beyond repair and accordingly, he approached the Respondent and asked for monies to reflect his 13 years of loyal working service with them. The Complainant claims that he was told he was not being made redundant so there was no money due to him. However, he was not offered his job back, nor was he asked to call to the office to try and sort things out.

The Complainant said that on 5 February 2020 he had finally decided to go to the social welfare office to sign on as he had no income since December 2019. He claims that he was told that he was still registered as an employee of the Respondent. Therefore, he found himself without a job or income for 6 weeks.

The Complainant subsequently made a number of other allegations in relation to his historical employment relationship up until early 2018.

The Complainant worked as a driver for the Respondent from 10 October 2007 and as far as the Respondent understands the relationship was uneventful to the extent that the Complainant continued to work for the Respondent for in or about 13 years and never raised any grievances except to seek wage increases from time to time.

The Respondent said that there is a severe shortage of HGV drivers, and it is inconceivable that it would engage in any conduct such as would cause a driver to leave particularly one who had driven for the Respondent since 2007.

The Respondent noted that the Complainant left his employment on 24 December 2019, but that the Complainant was still an employee for a period thereafter. It said that the Dept. of Social Protection confirmed this to the Complainant that he was still registered as an employee of the Respondent as of 5 February 2020.

The Respondent remarked that the Complainant himself stated in evidence that he declined work on 10 January 2020 and alleges he did this because he "wanted issues in relation to wages and working conditions addressed".

The Respondent presented evidence of text messages between the parties up to late January 2020, which it claims demonstrates the Complainant was seeking to negotiate an exit package from the Respondent and seeking redundancy and payment for his ‘loyalty over 13 years’. Namely, he was seeking a redundancy lump sum in the amount of 2.5 weeks for each year of service.

The Respondent said the Complainant was not dismissed, actually or constructively. It said there was no redundancy situation. As far as the Respondent is concerned the Complainant left to take up alternative employment in or about early February 2020.

The Respondent said that on 24 December 2019 the Complainant telephoned it to say his truck was broken down. During his time with the Respondent, the Complainant would not drive an alternative truck. The Complainant's truck was repaired within the first few days of January 2020. A route was offered to the Complainant on 10 January 2020, but he refused it and sent text messages saying he wanted financial recognition for his years of loyal service i.e., redundancy and a ‘full working week's wages in the bank by the end of the week’. It said that the text messages demonstrate that the Respondent on numerous occasions pointed out to the Complainant that he had not been made redundant.

The Respondent said it offered the Complainant the sum of €500 to compensate for any time the Complainant could not work due to the broken truck despite the fact that the Complainant could have worked if he was willing to use another vehicle.

On or about 4 January 2020 the Complainant took the truck permit, fuel cards and the insurance cover document out of the truck, thereby preventing the Respondent from using it. The Respondent said that it is unclear whether the Complainant alleges that he was dismissed or that he left his employment due to the conduct of the Respondent. However, it disputes that it engaged in any conduct such as it entitled the Complainant to leave his employment and consider himself constructively dismissed.

Legal submissions

The Respondent said in cases of constructive dismissal, the onus lies on the Complainant to prove that what has happened amounted to a dismissal. Only when this is established will an assessment of whether the dismissal was fair or unfair be carried out, as cited in Cantor Fitzgerald International v Callaghan and Allen v Independent Newspapers (lreland) Ltd (UD641/2000)).

It was submitted that the statements of the Complainant in and about his alleged dismissal are vague and do not support even a finding of a prima facie case against the Respondent. It has been consistently held regarding the burden of proof that the bar to succeed is high. The essence of a constructive dismissal is that the conduct complained of drove the employee to leave the job there and then. The Complainant did not leave his job there and then on 24 December 2019 but rather sought to negotiate an exit package with the Respondent during the month of January.

The Respondent said that the 1977 Act specifically recognises the concept of constructive dismissal in that the Act provides that "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". This definition means that there are two alternative tests for proving a constructive dismissal: (1) the employee was entitled to resign; or (2) it was reasonable for the employee to resign.

It claims that the alleged conduct is not such as entitled or made it reasonable for the Complainant to leave his job and consider himself constructively dismissed. The Complainant did not invoke the grievance procedure before leaving his job but rather sought to negotiate an exit package or a redundancy citing Oliva Barry v Quinn Insurance Limited (UD 1775/2010) where the EAT found that except in very limited situations an employee must exhaust all avenues for dealing with his or her grievance before resigning.

The Respondent would, at all times, have been ready and willing to engage in both the grievance procedure with the Complainant but the Complainant never gave the Respondent this opportunity.

The Law

Section 1 of the Unfair Dismissals provides the following definition of “dismissal”:

“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,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

The key material facts in this case, including the fact of dismissal, were very much in dispute between the parties. Accordingly, it is a matter for the Complainant to establish that he has been dismissed by the Respondent. 

It was common case that the Complainant had a problem with the truck that he drove for the Respondent for some 13 years and that it broke down on 24 December 2019 and had to be taken off the road and fixed which was not completed until early January 2020. It was also common case that the Complainant had issues with the Respondent over his terms and conditions and he was seeking to have them re-negotiated in and around this time. It is common case that work was offered to the Complainant from 10 January 2020, which he turned down because his terms and conditions negotiation were not advancing.

There is a clear difference of opinion as to the extent and nature of the discussions that were on-going at that time. I am not satisfied that either party were entirely clear as to what the other party wanted to gain from the negotiations. However, one thing is clear the Complainant felt that he deserved credit for his loyalty working with the Respondent and he chose to stay away from work at this time because he was not happy with the Respondent’s approach. This all seems to play out in a serious of short, pointed but unclear text messages from the Complainant to the Respondent’s “office”. The Respondent continually stated that there is no redundancy situation and refused to meet the demands for more money from the Complainant.

Having regard to the evidence adduced, I am satisfied that the Complainant and the Respondent had failed to get a resolution and the key conflict remained the stumbling block for the Complainant’s return to work. The Complainant did not return to work however, I note that the Respondent required drivers to work for it, had offered him work and still considered him its employee.

The question that I must decide is whether, on the balance of probability, the actions, words or text messages from the Respondent amount to a dismissal. Having regard to the totality of the evidence adduced, I am satisfied that the discussions and communications exchanged between the parties resulted in stalemate. However, the Respondent offered the Complainant work, which was turned down. I am satisfied and I find, on the balance of probabilities, that there was no dismissal.

The Complainant’s grievance with the Respondent was for the most part about his remuneration and he highlighted that his preferred approach to dealing with this was by meeting with the Owners, sitting down with them and sorting that out. Notwithstanding the merits of that approach, it does not lend to document the extent of the grievance the Complainant had for the Respondent to possibly address. I have considered that aspect in the context of a “constructive dismissal”. However, that case has not been made out to me nor do the facts of the case tend to suggest that. The Complainant suggests otherwise.

On the balance of probability, I am satisfied that the parties had a long running disagreement on pay terms and this came to a head over the start of January 2020, where both parties became entrenched and stubborn in their positions, which resulted in the Complainant not returning to work and therefore effectively leaving his employment.

I find that there was no unfair dismissal.

Other historical issues

The Complainant raised a number of other allegations during the course of the hearing in relation to his historical employment relationship with the Respondent, which he said prevailed up but not beyond until early 2018. I am satisfied that these historical matters are not correctly before me for consideration under the present complaint.

I find the complaint not to be well founded.

unfair dismissal - not well founded - no dismissal - constructive dismissal