ADJ-00031077

Complainant

Respondent

Parties

Darius  Vilkanauskas

Reynolds Logistics Limited

Representatives

 Richard Grogan & Associates

IBEC

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-00041296-001

28/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012

CA-00041296-002

28/11/2020

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

CA-00041296-003

28/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00041296-004

28/11/2020

The Complainant was employed by the Respondent as an HGV driver from 1st October 2018 until 11th October 2020 when his employment was terminated by reason of redundancy. He was paid €782.80 gross per week and he worked a 38 hour week. He is claiming that he was unfairly selected for redundancy pursuant to the Unfair Dismissals Act, 1977 that he was discriminated against on the race ground contrary to the terms of the Employment Equality Act, 1998 and that there were breaches of the Terms of Employment (Information) Act, 1994 in relation to providing information. 

The Complainant was employed as an HGV fuel driver from the 1st October 2018 to the 11 of October 2020 when he was made redundant.

He was involved in delivering fuel for the Respondent to either garages or to airports. The fuel was delivered to tanks to both locations and the job was interchangeable whether delivering to the airport or to a garage. He worked on the aviation contract, but he spent 5 months working on the garage contract. After the Complainant was taken on other employees were recruited and they only delivered to the garage contract. It was submitted that the Respondent failed to consider the Complainant for the positions in the garage contract and employees with less service were retained.

Legal Submission

In this case the Respondent completely failed to consider him for one of these jobs. It is submitted that the law is clear in relation to selection for redundancy. The fact that somebody may or may not be doing a particular job, the employer must look to seek if there is another job in the organisation the employee could have undertaken and if so, in those circumstances, a person with lesser service would be the person made redundant and not the Complainant.

I was referred to the Labour Court case of Trinity college v Ahmad UDD2030 in relation to selection for redundancy where the Labour Court quoted the case of Gillian Free v Oxygen Environmental UD 206/2011, the Employment Appeals Tribunal noted that

“when an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy….where there is no agreed procedure in relation to selection for redundancy….then the employer must act fairly and reasonably”.

The Labour Court went on to say that:

“It is clear to the Court that sufficient efforts were not made to seek alternative roles for him, the Court therefore, cannot accept that his dismissal by virtue of fair selection for redundancy had been discharged by the Respondent and consequently finds that the Complainant was unfairly dismissed”.

I was referred to case ADJ18415 where the Adjudication Officer quoted the case of Williams -v - Comp Air (1982) I ICR156.  The Judge in that case, in considering the issue of fair procedures, identified the generally accept principles governing how reasonable Employers will typically act.  The Employer should seek to give as much warning as possible of pending Redundancy so as to enable the Union and Employees who have been affected to take early steps to inform themselves of the relevant fact, consider possible alternative solutions, and if necessary, find alternative employment in the undertaking or elsewhere. It was set out that the Employer should consult with the Union, as to the best means by which the desired management result would be achieved fairly and with a little hardship to the Employees as possible. and to see whether instead of dismissing the Employee, the Employer could give the Employee alternative employment.

I was referred to Boucher -v- Irish Productivity Centre 1994ILR 205 where the Employment Appeals Tribunal considered unfair selection. It emphasised that those in the group likely to be dismissed should be made aware that such assessment is being made and should be given an opportunity to give their views which should be considered.

In Mulligan –v- J2 Global (Ireland) Ltd (UD/993/2009), in respect of redundancy the tribunal stated:

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases there may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedure may lead to the conclusion that an unfair selection for redundancy had taken place.”

In JVC Europe v Panasi (2011) IEHC 279, Charleton J stated:

“ It is made abundantly clear by that legislation that redundancy, while it is dismissal, is not unfair. A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason.”

It is interesting in the case of JVC Europe that His Honour in this case remarked:

"It may be prudent, as a mark of a genuine Redundancy, that alternatives to letting the Employee go should be examined."

It was submitted that in the case herein, the Employer retained employees with lesser service performing similar work which the employee was qualified to do.

The Adjudication Officer in the case Mulcahy - v – Kelly ADJ-00018737 stated that there is an obligation on an Employer to look at all Employees as possible candidates for redundancy.  In the Complainants case only one group was identified by the Respondent in the selection process. In case ADJ1461 the Adjudication Officer in that case, pointed out that the burden of proof is on an Employer to show that the selection process was fair. In the case of Student Junior Commercial Services Limited and Trainer UDD1726, the Labour Court held that there was a Redundancy, but that did not mean that that was the end of the of Unfair Dismissal case.  The Labour Court applied the case of Mulcahy - v - Kelly where it held that it was well established that there is an obligation on an Employer to look for an alternative to redundancy. The Labour Court pointed out that this duty may involve locating alterative work within the organisation even if this involves dismissing another Employee with shorter service. In this case there were other Employees with less service than the Complainant.

Employment Equality Act, 1998

The Complainant said that he was discriminated against on the race ground in relation selection for redundancy. He said that three employees of a different nationality to him and who had less service in the employment were retained.

Legal Submission

The Race Directive 2OOO/43/EC prohibits direct discrimination based on racial or ethnic origin. Article 2(1) provides:

"(a) Direct discrimination shall be taken to occur where a person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds or racial or ethnic origin."

The Employment Equality Act defines direct discrimination in Section 6(1)(a) occurring where:

"A person is treated less favourably than another person, is, has been or would be treated in a comparable situation on any of the grounds specified in Subsection (2), (in this Act, refer to as the "discriminatory ground"),

In a case of Glasgow City Council - v- Zafar, 1998 2 All ER953, was adopted in this jurisdiction by Mr Justice Quark and Davis - v- Dublin Institute of Technology 23 June 2OOO High Court. In the Zafar case, it was pointed out that if there is a difference in treatment and difference in race, this is prima facia evidence of discrimination and it is for the Respondent to provide a non-discriminatory explanation.

This approach was adopted in Ntoko - v - Citybank [2OO4] ELR 116, where the Labour Court explained, it is underline rational as follows:

"This approach is based on the empiricism that a person who discriminates unlawfully will rarely do so overtly and will not leave an evidence of the discrimination within the Claimant's power of procurement. Hence, the normal rules of evidence must be adopted in such cases so as to avoid the protection of antidiscrimination legislation being rendered nugatory by obliging Claimant's to prove something which is beyond their reach and it may only be in the Respondent's capacity of proof."

It was submitted that the Complainant had been employed on the aviation work and when Covid-19 arrived, he was transferred to supplying fuel to garages. The delivery of aviation fuel to the airport and to garages was exactly the same. The fuel was delivered to tanks and either garage or at airport.  For 5 months the Complainant was doing the same work as every other driver.

There were Irish drivers taken on after the employee who were retained. The only drivers who were put through the Redundancy process were non-Irish nationals. The discrimination in this case occurred on a number of dates. The first was the consultation meeting on the 23ra of September 2O2O, when only non-Irish nationals were involved. It is interesting that the employee in this case noted that he was working on TOP contract for 5 months not aviation. The second incident occurred on the 30ft of September 2O2O, again, where a decision has been made to dismiss and it was again, only non-Irish nationals.

The Complainant's case is that he was treated differently and this amounts to direct discrimination. It was submitted that he was treated differently to 3 other named comparators who are of a different nationality to the Complainant.

Terms of Employment

The Complainant’s representative submitted that the Respondent was in breach of the Terms of Employment (Information) Act, 1994 in that he did not receive a statement in writing of his terms of employment.  It was further submitted Complainant was not advised in in relation to the Tachograph Regulations and the provisions of SI136 of 2O12. The Complainant was driving a truck and therefore these Regulations applied. He said that the Respondent is obliged to tell the Complainant where the records of his working hours are available for inspection which is a breach of the Regulations.

The statutory leave year, which is from April to March, set out in the contract of employment is incorrect as the leave year runs from January to December. The rest periods as set out in the contract are not in accordance with the Organisation of Working Time Act. The Complainant relies on the case of Merchant's Arch Restaurant Company Limited and Guerero TED 787, and the case of Beechfield Private Homecare Limited and Hayes Kelly TED19/ 19.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

In case TED187, which is at page 95, the Labour Court stated:

"The Court finds that the acting imposes an obligation on an employer to provide a worker with basic information regarding the terms of employment. The requirements set out in Section 3 of the Act, are not complex matters. Simple attention to detail would enable any reasonable person to comply with its terms. A failure to do so therefore requires a clear and understandable explanation, as to why a worker was not provided with such basic information about the terms under                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           which s/he is employed."

In the case of Beechfield Private Homecare Limited and Hayes Kelly, at page 104,

the Labour Court stated:

"The Act provides that the Workplace Relations Commission, and this Court, on appeal can award up to four weeks renumeration where it determines that Section 3 of the Act has not been complied with. In determining the appropriate level of compensation it should award in a particular case, the decision maker, must take into to account all the relevant circumstances of the case before it. In this case, the Court determines that the breaches were at the serious end of the spectrum, particularly the Respondent's failure to advise the Complainant of her entitlement to access a personal saving retirement account. The Court also notes the Respondent continued characterisation of the breaches of the Act that occurred in this case is merely technical or semantic nature."

The Complainant was employed with the Respondent Company as an HGV Driver on 1st October 2018. The Complainant earned a gross weekly salary of €782.80 and he was provided with a contract of employment.

When the Complainant began employment with the Respondent, he was contracted on the aviation contract and he was rostered to four days per week. He drove a fuel tanker to Dublin Airport for the Respondent. As the aviation volumes would normally become quiet from November to January, the Complainant was cross trained on TOP contract (Retail) so that he, and others, would not be subject to reduced hours due to the quiet period. TOP involves the Complainant transporting goods from Dublin Port to any petrol station at any location.

On 17th September 2020, the Complainant and twenty-two other drivers were issued with a letter which outlined that their roles were at risk of redundancy because the volume of work on the Aviation Contract had fallen by 80% because of the Covid-19 pandemic. The letter stated that it was “unsustainable to have23 drivers and 11 vehicles” operating on the contract.

 A consultation meeting was held on 23rd September 2020 to allow the employees who had received the at-risk letter present any issues or concerns they may have had at that point. In attendance was Mr Patrick Dockery, Head of Operations, Ms Lyndsey Poole, HR Manager, and Mr Derek Casserly, SIPTU Representative. The employees were informed that there was a predicted operating capacity of 20% of the normal budgeted volume, which would equate to eight drivers and two trucks to cover this workload, as opposed to twenty-three drivers and eleven trucks. The employees were informed that the selection criteria for this redundancy was last in first out. 

 On 25th September 2020, the Complainant attended a second consultation meeting which was arranged to facilitate any questions which the group may have had at that point.  On 30th September 2020, the Respondent met with the group again to clarify any concerns there may be at the time.

On 2 October 2020, the Respondent had a 1-1 consultation meeting with the Complainant and a letter was issued on 2nd October 2020 notifying him that his role was no longer sustainable, and there no other option but to make his role redundant from 11th October 2020.

Witness: Lyndsey Poole HR Manager

She said that the company had 2 contracts to deliver fuel from Dublin Port, an aviation contract at Dublin Airport and a retail contract which delivered fuel to retailers in the Leinster area. She said that the redundancy only applied to the aviation contract. She said that there were differences in the 2 contracts regarding shift hours, the length of the working week and meal allowances. The Complainant was working on the aviation contract, but he was crossed trained on the retail contract when the volume of work on the aviation contract went down.  Due to the reduction in aviation because of Covid 19, it was necessary to introduce a redundancy programme which applied only to the drivers on the aviation contract.  LIFO was applied, and the Complainant was one of the 9 employees selected. She said that even if they looked at both the aviation and retail contracts that the Complainant would be still selected for redundancy as he less service than some of the employees made redundant.

The HR manager denied that the Complainant was selected for redundancy because of his race. She also said that the Complainant was given a letter setting out his terms and conditions of employment which he signed. He also did induction training and received a folder with further information setting out his terms of employment.

Legal Submission

The Complainant has alleged that he was unfairly selected for redundancy.

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

c) the redundancy of the employee

The Respondent refutes the allegation that the Complainant was unfairly dismissed and submits there was a legitimate redundancy situation because the role of the Complainant was no longer sustainable. The Complainant was put at risk of redundancy on 17th September 2020 and was given the opportunity to engage in consultation with the Respondent on three separate occasions, 23rd, 25th, & 30th September 2020, until the position was formally made redundant on 2nd October 2020.

The Respondent operates within the Aviation sector and as a result of the Covid-19 pandemic, the volume of work available on this contract fell by 80% and was forecasted to remain at this level for the foreseeable future.

 Section 6(3) of the Act outlines the following:

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be aground justifying dismissal, or

3(b) he was selected for dismissal in contravention of a procedure (being a procedure that hasbeen agreed upon by or on behalf of the employer and by the employee or a trade union, or anexcepted body under the Trade Union Acts, 1941 and 1971, representing him or has beenestablished by the custom and practice of the employment concerned) relating to redundancyand there were no special reasons justifying a departure from that procedure, then the dismissalshall be deemed, for the purposes of this Act, to be an unfair dismissal.

In applying the above, an employee may contest a dismissal due to redundancy if:

- the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer; and

 - their selection contravened a procedure/custom and practice in relation to selection for redundancy and the Company had no special reasons to depart from the procedure or practice.

The onus is on the employee to establish that the circumstances constituting the redundancy applied equally to one or more other employees in similar employment who have not been made redundant. The Complainant was put at risk of redundancy along with 22 other employees, 9 of whom, including the Complainant were made redundant. The reason for putting these particular roles at risk of redundancy was because the employees engaged on the aviation contract were directly impacted by the significant decrease in the volume of work available.

The Respondent used a Last in First Out (LIFO) method in line with a custom and practice which had already been established. The Complainant commenced employment with the Respondent in October of 2018 and he was one of the most recent 9 employees to have started with the Respondent in this role. It was for this reason only that the Complainant was selected for redundancy.

In the case of An Administrator v A Social Welfare Office, Adj-00004800, the Respondent had experienced a significant downturn in business due tofactors which were entirely beyond their control. The Adjudicator upheld thecommon position on the use of a LIFO selection method by stating thatit did not amount to a breach of Section 6 (3) of the Act and found that theComplainant was not unfairly selected for redundancy. Although the facts of the abovecase vary slightly from this case, in this case it was decided to make the Complainant’srole redundant as it had been rendered unviable because of the downturn in the client’s business, and the subsequent impact this had on the volume of workavailable to the Complainant.

 Section 6 (7) of the Unfair Dismissals Acts, 1977-2015 states;

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

It is submitted by the Respondent that it behaved reasonably and satisfied Section 6(7) of the Unfair Dismissals Act in the steps taken by way of meetings and correspondence with the Complainant.

The Respondent engaged in a consultation process with the Complainant. It was only until all possible alternatives to redundancy were considered, including seeking suitable alternative roles, that a decision was made to confirm the redundancy of the Complainant’s role.

The Respondent contends that the redundancy was solely due to the impact that the Covid-19 global pandemic has had on the Aviation industry.  It was the role, and not the person, that was made redundant.

Employment Equality

The Complainant alleges that he was discriminated against by the Respondent on the grounds of Race. The Respondent refutes this claim in its entirety as the Complainant was treated no less favourably than any other employee under the ground cited. The Respondent used a Last in First Out method which is in line with the custom and practice created through previous redundancies within the Respondent company.

 Section 6 of the Employment Equality Act, 1998 states the following,

“discrimination shall be taken to occur where, on any of the grounds in subsection (2) (in this Act referred to as “the discriminatory grounds”), one person is treated less favourably than another is, has been or would be treated.”

The Respondent denies that any discrimination has occurred.  The employees who were selected for redundancy were chosen solely on their service length and no other factors were used in this selection process.

It was submitted that the Complainant has failed to establish a prima facia case of discrimination.

Terms of Employment Claim

 Section 3 of the terms of Employment (Information) Act, 1994, requires an employerto issue a copy of the employee’s contract of employment, no later than two monthsafter the commencement of the employee’s employment with the employer.

“(1) An employer shall, not later than 2 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 the terms of the employee's employment”

 It is the Respondent’s case that the Complainant received, acknowledged, and signed his contract of employment on 1st October 2018 and for this reason, the Respondent submits that the above claim fails.

S.I. No. 36/2012 Claim

 The Respondent company refutes the claim under S.I. 36/2012 as the Complainant’s contract included, states the following regarding rest times and breaks:

“At all times rest breaks, daily rest, must be adhered to in line with Tachograph and Working Time Directive requirements and it is your responsibility to ensure compliance to the HGV drivers hours and tachograph law, under regulation 561/2006/EC – 3821/85/EEC-2135/98/EC and EU road transport working time Directive (2002/15/EC”

Furthermore, when the Complainant commenced employment with the Respondent, he attended induction training on his first day and was provided with an induction information folder which included “Section 8: Guide to EU Rules on Driver’s hours (RSA)”. The New Driver Induction Information Folder was signed by the Complainant on 1 October 2018,

On the same date, the Complainant also received a document outlining Key Rules Digital Driver and driver cards,which on page 3 states Drivers Daily Rest Periods. This document was signed and accepted by the Complainant on 1 October 2018.

CA-00041296-003 Unfair Dismissals Act 1977

he Complainant’s case is that he was unfairly selected for redundancy and that last in first out (LIFO) should have applied.  The Respondent should have considered both the aviation side of the business and the retail side as the Complainant had been trained in delivering to garages and employees on this side with lesser service were retained.  The Respondent submitted in evidence that there was an 80% downturn in the aviation side of the business due to the Covid-19 pandemic and it was necessary to make roles redundant. The selection was made on the aviation contract only and LIFO applied.

I note that the Complainant accepted the need to make roles redundant. 

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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. …

Selection for Redundancy

Sub section (3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted

body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there

were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

 (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

……

(c) the redundancy of the employee,

……

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph(d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section

Section 7(2) of the Redundancy Payments Act 1967 as amended provides:

 “(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,”

The matter I must consider is whether the Complainant was unfairly selected for redundancy and did the employer act unreasonably (Section 6(7)(a) of the UD Act) in not considering the retail drivers in the redundancy process?  The Redundancy only applied to the aviation contract where 9 drivers out of the 22 were made redundant.  The Respondent applied LIFO and the Complainant was one of the 9 drivers selected for redundancy based on his length of service. The decision was made following consultations meetings with the Complainant.  I note that the Complainant was employed as a driver in the aviation side, but he was trained in the retail contract and worked there for 3 months during the quiet period in the aviation contract. The question for consideration is whether the Respondent should have considered both the aviation sector and the retail sector in making the selection.

I note that that the downturn in business was only in the aviation contract which gave rise to the redundancies. I note that there was an 80% downturn in the aviation contract business during covid-19 resulting in driving roles being redundant.  I note also that the 2 contracts had different terms and conditions of employment. The aviation contract drivers are Dublin based and worked 10 and a half hours over 4 days per week. The retail drivers worked 5 days over 6 days in the Leinster area and were paid higher meal allowances.  It is clear therefore that the Respondent operated the contracts with specific drivers for each of them and while the Complainant had some experience on the retail contract, his main driving duties was on the aviation contract.  When LIFO was applied to the aviation contract drivers, the Complainant was amongst the 9 drivers selected for redundancy based on the length of his service.  I find therefore it was not unreasonable for the Respondent to only consider the employees on the aviation contract in the redundancy selection process. I also note that even if the Respondent had considered the drivers on the both the aviation and retail contract for redundancy that the Complainant would still have been selected for redundancy based on his length of service.

For all of the above reasons, I find the Complainant was not unfairly selected for redundancy and that he was not unfairly dismissed pursuant to Section 6 of the Act

CA-00041296-004: Employment Equality Act 1998

The Complainant is claiming that he was discriminated against on the race ground in relation to the selection for redundancy.  He is a Lithuanian national and he said that 6 Polish, 2 Latvians and one Lithuanian were made redundant and an Irish employee and 2 other employees of different nationalities who had less service than him were retained in the employment.  The Respondent submitted that the Complainant was selected for redundancy based on his length of service and his nationality had no bearing on the selection process.

Section 6(1) of the Employment Equality Acts provide:

“discrimination shall be taken to occur where—

(a) a person is treated less favourably than another person is, has been or would

be treated in a comparable situation on any of the grounds specified in

subsection (2) (in this Act referred to as the ‘discriminatory grounds’)”

 Section 6(2) provides:

“As between any 2 persons, the discriminatory grounds (and the descriptions of

those grounds for the purposes of this Act) are—

…….

 ( h) that they are of different race, colour, nationality or ethnic or national origins (in this Act referred to as “ the ground of race”), 

Section 8(6) provides:

 "(6) Without prejudice to the generality of subsection (1), an employer shall be taken to discriminate against an employee or prospective employee in relation to conditions of employment if, on any of the discriminatory grounds, the employer does not offer or afford to that employee or prospective employee or to a class of persons of whom he or she is one—

(a) the same terms of employment (other than remuneration and pension rights),

(b) the same working conditions, and

 c) the same treatment in relation to overtime, shift work, short time, transfers, lay-offs, redundancies, dismissals and disciplinary measures,

as the employer offers or affords to another person or class of persons, where the circumstances in which both such persons or classes are or would be employed are not materially different.”

Section 85A of the Employment Equality Acts, sets out the burden of proof necessary in claims of discrimination. It provides "Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the Respondent to prove the contrary."

 In the case of Melbury Developments and Valpeters (Det. No. EA AO917) the Labour Court stated in relation to Section 85 A as follows:

"Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the Complainant must first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination.” 

The Complainant is complaining that he was selected for redundancy ahead of 3 named comparators who are of a different nationality and who had less service than he had.  I note that the named comparators were drivers on the retail contract and the drivers on this contract were not considered for redundancy.   There were no Irish drivers or drivers of a different nationality retained on the aviation contract with less service than the Complainant. Furthermore, even if the drivers on the retail contract (the comparators) were considered for redundancy, the Complainant would still have been selected based on LIFO.

I am satisfied that the Complainant has failed to establish that he was treated less favourably than another person of a different nationality was treated in similar circumstances in relation to his selection for redundancy. I find therefore that the Complainant has failed to establish a prima facie case of discriminatory treatment on the race ground.  

CA-00041296-001 Terms of Employment (Information) Act 1994 and

CA-00041296-002: S.I. 36 of 2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012

The Complainant is claiming breaches of the Terms of Employment (Information) Act, 1994 and SI.36/2012 and SI49/1998 in relation to the Tachograph Regulations, hours of work, leave year, holiday pay and rest periods and breaks.  The Respondent denies the claim and stated that the Complainant was provided with a contract of employment which set out the terms and conditions of employment and provided the following regarding rest times and breaks:

“At all times rest breaks, daily rest, must be adhered to in line with Tachograph and Working Time Directive requirements and it is your responsibility to ensure compliance to the HGV drivers hours and tachograph law, under regulation 561/2006/EC – 3821/85/EEC-2135/98/EC and EU road transport working time Directive (2002/15/EC)” 

The Terms of Employment (Information) Act 1994 provides:

3.—(1) “An employer shall, not later than 2 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 the terms of the employee’s employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee’s contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(fa) a reference to any registered employment agreement or employment regulation order which applies to the employee and confirmation of where the employee may obtain a copy of such agreement or order,

(g) the rate or method of calculation of the employee’s remuneration and the pay reference period for the purposes of the National Minimum Wage Act, 2000,

(ga) that the employee may, under section 23 of the National Minimum Wage Act, 2000, request from the employer a written statement of the employee’s average hourly rate of pay for any pay reference period as provided in that section,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m) a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.”

 S.I. No. 49/1998 - Terms of Employment (Additional Information) Order, 1998 provides:

3. (1) “In relation to an employee who enters into a contract of employment after the commencement of this Order, the employee's employer shall, within two months after the employee's commencement of employment with the employer, give or cause to be given to the employee a statement in writing containing particulars of the times and duration of the rest periods and breaks referred to in sections 11, 12 and 13 of the Act that are being allowed to the employee and of any other terms and conditions relating to those periods and breaks.”

S.I. 36 of 2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 provides as follows:   

“Obligation to notify mobile worker

11. An employer of a mobile worker shall notify the worker of the provisions of these Regulations and the provisions of any collective agreement, employment regulation order or registered employment agreement which is capable of application to that worker and keep available for inspection at all reasonable times a copy of these Regulations and any applicable employment regulation order or registered employment agreement. “

I note that the Complainant was provided with a letter dated 1st October 2018 setting out the terms and conditions of employment and this document was signed by the Complainant on the 1st October 2018. He also attended induction training and was provided with an Induction and Information Folder covering ten topics including an RSA guide to EU rules on driver hours. The Complainant also signed this document on the 1st October 2018. He was also given a document headed “Key Rules for Digital Drivers & driver’s cards” which set out the daily rest periods and the Complainant also signed this document. I am satisfied therefore that the contract of employment provided to the Complainant together with the other documents complies with the terms of the legislation. I am also satisfied that a copy of the Regulations S.I. 36 of 2012 was available in the office for inspection.

I find therefore that the complaint pursuant to the Terms of Employment Act, 1994 is not well founded.

I find that the complaint in relation to the mobile transport regulations SI 36 of 2012 is not well founded.

CA-00041296-001 Terms of Employment (Information) Act 1994

I find that this complaint is not well founded

CA-00041296-002: S.I. 36 of 2012 European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012

I find that this complaint is not well founded

CA-00041296-003 Unfair Dismissals Act 1977

I find thatthe Complainant was not unfairly dismissed.

CA-00041296-004: Employment Equality Act 1998.

I find that the Complainant has failed to establish a prima facie case of discriminatory treatment.

Unfair Dismissals Act 1977 – Section 6 selection for redundancy, Employment Equality Act 1977 – discrimination on the race ground, Terms of Employment (Information) Act 1994 – Section 3 terms and conditions of employment, SI 36 0f 2012 Mobile Transport Regulation 11 - provision of information.