Complainant

Respondent

Parties

Dumitru  Suloschi

J. P. Ryan Limited

Complainant

Respondent

Anonymised Parties

Representatives

Mr Mark O’Connell BL instructed by  Lalloo Solicitors.

Ken Stafford, Management Consultancy Services

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-00039833-001

15/09/2020

As per complaint form the Complainant commenced working with the Respondent on 01/01/2017 and remained in this employment until 01/04/2020. The Complainant was employed as a Truck Driver and earned approximately €825 per week.

This complaint was received by the Workplace Relations Commission on 15th September 2020.

BACKGROUND

The Respondent is engaged in heavy transport, including the delivery of chemicals nationwide. The Claimant was employed as a driver of HGVs.

This claim centres on the Claimant having reached a level of Penalty Points on his licence that meant loss of licence, and thus was unable to fulfil his contract of employment.

He was not dismissed but became unqualified to perform his duties as a driver.

In his WRC submission he gives a dismissal date of 1st April 2020. This is contradicted twofold:

1.       The Respondent's letter dated 01/04/2020 clearly shows that he was not dismissed as of that date.

2.       The Claimant's own letter, dated 11/09/2020, acknowledges that as of 11th September 2020 he had not been dismissed.

CHRONOLOGY OF EVENTS.

Complainant’s address.

The Complainant appears to have two addresses (both supplied at hearing).

On 25th February 2020, NDLS had one address however in letters from the Respondent to the Complainant on 9th and 13th March the Respondent used another address supplied by the Complainant.

The address that the Respondent had used was supplied to An Garda Siochana. The Respondent is unable to confirm if the address used by NDLS was corrected, it is clear however that some months after the offence the NDLS did not have the correct address for the Complainant.

It is the Respondent’s understanding that the Complainant was deliberately avoiding having the points from the 22nd July 2019 incident added to his NDLS record and avoiding having his licence suspended.

During his discussions with management the Complainant informed them that he had avoided taking possession of a registered letter as he presumed that it was a summons to Court.

Complainant’s accusation in WRC Complaint Form.

The Complainant’s allegation that the reason for the termination of his employment was his unwillingness to work long hours is without foundation.

The Company's business is licenced, and highly regulated. The Company makes every possible effort to achieve full compliance with the Working Time Directive.

The Company uses a professional external organisation, Euro Tachograph Solutions (ETS), to assist with all aspects of Tachograph use, and to ensure that the Company is compliant with all regulations.

ETS provide detailed reports of daily driver data and highlight any infringements. the Tachograph records for 2019 and 2020, which show full:' compliance with the Working Time Directive.

These reports are closely monitored by the Quality, Environment, Safety and Health Manager in the Company. She checks for daily hours issues, maximum weekly hours rule, and average weekly hours rule.

At no time prior to the termination of his employment did the Claimant ever raise any issue over alleged excess hours worked.

Summary.

The Complainant’s situation meant that the Respondent could not allow him to drive for them.

Essentially the Claimant frustrated his contract and dismissed himself. In his letter of 11/09/2020 he acknowledges that he had not been dismissed.

The Complainant never explained how the 3 new points on his licence would not have meant loss of his licence to drive. He had every opportunity to do so.

The Complainant’s contract of employment clearly sets out the obligations on company drivers, regarding their licence to drive. The Complainant never made any attempt to fulfil these obligations and wanted the Respondent to put the business at great risk, by falsifying the record.

Essentially, the Complainant knew well that he could not continue to drive. Therefore, he must have known that as he had been employed as a driver, he could not fulfil his contract.

The Complainant was dismissed from his job because he was unwilling to work more than 12 to 15 hours per day as requested by the Respondent.  The Respondent relies upon the false claim that he, the Complainant, had accumulated twelve penalty points which would have – in effect – precluded him from working as a heavy goods vehicle driver.  The dismissal of the. Complainant was contrary to Section 6 of the Unfair Dismissals Acts 1977 and Section 27(2)(a) of the Safety Health and Welfare at Work Act 2005. 

He has a single claim which is for Relief pursuant to Section 8 of the Unfair Dismissals Act 1977 for unfair dismissal.

Complainant’s case.

The Complainant commenced working for the Respondent in 2007.  Save for an 18-month break starting in 2015, he worked continuously until his dismissal on a date which remains uncertain.

On the 27th February 2020, the Complainant started to work at 3am.  His duty was to drive to Northern Ireland where he was asked by manager Eoin to make a delivery by 7am.  He returned by 1.30pm when he was sent to Dublin Dock with an empty tank.  When he came back to the office at 3pm, Eoin asked him to do one more trip to Dublin Dock.  The Complainant refused because he was tired and had been working for 12 hours. 

The following day – 28th February 2020 – the Complainant was summoned to the office and told that he was being suspended from work because he had nine penalty points “and an additional three points” which were allegedly pending.  There was no truth in the assertion that an additional three points were pending.

The Complainant – at the material time – had nine penalty points comprising three for not wearing a seatbelt; three for driving 90kmph in a 60kmph zone; and three for overtaking another vehicle when it was deemed unsafe to do so.

The Claimant was asked by Noel Ryan if he could prove that he had only nine penalty points, he could continue to work with the Respondent. When the Claimant provided proof that he had just nine points, Mr Ryan was not interested in facilitating a resumption of work by the Claimant.

The Claimant currently has three points which expire on the 17th February, 2022 when he will have zero points.  

The Claimant attaches all NDLS certification regarding his penalty points history.

The real reason for his suspension was his refusal to work additional hours.

The Claimant did not resume working for the Respondent thereafter.

The Respondent has cited a date of the 1st April 2020 as the date of termination.  But as the wording in the said letter was unclear.  The Claimant has sought clarification which has not been forthcoming.

STATUTORY PROVISIONS

Section 3(1) of the Road Traffic Act 2002 provides for the disqualification from driving for six months any driver who has accumulated 12 or more penalty points.

Regulations governing the duration periods for time limits on mobile transport activities such as the driving of HGVs is governed by Statutory Instrument Number 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012.

Section 5(1)(a) of the statutory instrument limits mobile road transport activities to 60 hours in any given week.

Section 5(1)(b) of the statutory instrument sets an average weekly working time of 48 hours in any reference period.

Section 6(1) of the Unfair Dismissals Act 1977.  It reads:

“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 for justifying the dismissal.”

It is submitted that in this case, the Claimant was dismissed and there were no grounds of any kind to justify it.

Section 6(7) of the Unfair Dismissals Act 1977 (as amended) emphasises the importance of reasonableness in the conduct of the employer in the course of a dismissal.  It reads:

“In determining if a dismissal is unfair, regard may be had to:

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

It is submitted that any objective examination of the facts of this case lead only to a conclusion that there were no grounds whatsoever and that the actions and failings of the Respondent were extremely unreasonable.

Section 7 of the Unfair Dismissals Act 1977 (as amended) outlines the    remedies available to an employee who has been adjudged to have been dismissed unfairly. 

Section 7(a) reads: “reinstatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before the dismissal together with a term that the reinstatement shall be deemed to have commenced on the day of the dismissal; or

Section 7(b): “re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances.”

Section 7(2) of the Unfair Dismissals Act 1977 (as amended) sets out the factors which fall to be considered by the Workplace Relations Commission when determining loss. 

It reads: 

“… in determining the amount of compensation payable under that subsection, regard shall be had to-

a.       the extent (if any) to which the financial loss referred to in that subsection was attributable to an action, omission or conduct by or on behalf of the employer,

b.       the extent (if any) to which the financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

c.       the measures (if any) adopted by the employee or, as the case may be, his/her failure to adopt measures to mitigate the loss aforesaid, and

d.       the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14(3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved by the Minister.”

Section 7(3) of the Unfair Dismissals Act 1977 (as amended) defines financial loss as:

(i)                  “any actual loss; and,

(ii)                 any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution attributable to the dismissal;

(iii)               The value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts; or the value of any loss or diminution in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

Case Law.

1.       In the case of Stephen Kinsella v BOC Gases LimitedADJ-00032129, the Complainant was also employed as a driver who like the Claimant in the herein case, was dismissed.  He had walked off the job and thereafter failed to cooperate with safety reporting and investigation procedures. The Adjudication Officer decided that the dismissal was fair because unlike in the herein case, the Respondent followed proper and fair procedures.  Following a full investigation into the allegations of a safety breach, the Complainant was given a final written warning and was eventually dismissed.  An appeal procedure was provided but not availed of.  In the herein case, the Claimant was dismissed on grounds which have not been substantiated.  Furthermore, no procedures whatsoever were applied.

2.       In the case of Coordinator of an education project v Education Service Provider ADJ 00020835, the Complainant had been the subject of a complaint by way of a protected disclosure.  This eventually prompted the Respondent to conduct an investigation and later a disciplinary hearing which resulted in his dismissal.  The Adjudication Officer found that following the investigation, there were reasonable grounds for transferring the matter to a disciplinary process.  She also found that the Complainant was given ample opportunity to respond to each of the charges and she noted that he accepted that he failed to comply with procedures.  His apology was also considered significant.  However, defects in the procedures used – the failure to provide an appeal and the decision to engage just one person rather than two people in the disciplinary procedure – rendered the dismissal procedurally unfair.  An award of two weeks salary was made. That case is significant because unlike in the herein case, there was a demonstrable basis to the disciplinary process.  But ultimately, defects in the procedures rendered the entire process unfair. In the herein case, the defects were total as no procedures were used.

In an attempt to fully understand what has taken place it is important to look at the chronology of events submitted by the Respondent:

CHRONOLOGY OF EVENTS.

The Respondent adopted the position that the Complainant had in fact nine penalty points on his drivers license with an additional three points pending.

There is a contention by the Respondent that the Complainant approached the Respondent MD on two separate occasions in January 2020 and asked him to put the two the name of a former employee on the Nomination Confirmation sent by An Garda Siochana, this is denied by the Complainant. The MD refused.

An investigation into the Complainant’s points situation was commenced by the Respondent in February 2020. The Complainant was asked to produce written verification from NDLS in relation to his points situation. The Complainant submitted the requested verification which showed that he had accumulated 9 penalty points on his license. Three more penalty points would disqualify the Complainant from driving.

On 9th March 2020 the Respondent wrote to the Complainant – this letter read as follows:

Dear Dumitru,

The situation as we understand it is that you have 9 points on your driving licence, as below

18th February 2019 – 3 points

24th September 2019 – 3 points

6th August 2019 – 3 points.

We also understand that you have incurred another 3 points as per the attached notification from An Garda Siochana. If / when these 3 points are added to your licence you would automatically have your licence suspended.

This in turn would mean that you would no longer be able to perform the job for which you were employed.

If any of the above is incorrect you should obtain written evidence from An Garda Siochana and send it to me.

I will give you until 19th March 2020 to provide credible evidence that you still have a valid licence to drive. If you do not do so, then we will take it that the facts as shown are correct and that you can no longer carry out your duties as a driver.

We would then act accordingly and have to terminate your employment.

Sincerely…..

On 13th March the Respondent once again wrote to the Complainant:

Dear Dumitru,

I want to set out the facts as I understand them.

1.       You accept that you currently have 9 points on your driving licence. The latest of these three offences shows the points being applied to your licence on 18th February 2019.

2.       In the communication we received from the Garda, which is attached, it shows your latest offence, which occurred on 22nd July 2019. Our understanding is that this would now be applicable on your licence, which would mean you have at least 12 points in total, which in turn means you would be disqualified from driving.

3.       Our understanding is that you have avoided having the latest offence placed on your licence by not keeping the authorities updated on your change of address. We note that the NDLS document you supplied, dated 25th February 2020, shows your address as (address redacted by writer). This conflicts with the latest address you gave us (address redacted by writer), which is where we understand you now reside.

4.       You have also advised us that you have avoided taking receipt of registered post which you believe to be the summons to court for the offence dated 22nd July 2019.

5.       It appears to us that you no longer hold a licence to drive.

6.       I suggest that that you contact the Garda office shown on the letter attached. If you can obtain a document that shows that you are currently licenced to drive under the circumstances as we now know them then we will consider this.

7.       This situation is not of our making, we wrote to you on 9th March about the matter. It is up to you to obtain clear documentary evidence that you continue to hold a current valis licence to drive.

On 1st April the Respondent wrote to the Complainant:

Dear Dumitru,

In my recent letters to you, dated 9th and 13th March 2020, I gave you until 19th March to respond, and show that you do not have the additional points to be added to your licence, and that it is still permissible for us to allow you to drive.

As you have failed to do so, and we have given you almost 2 weeks more than we said, we now consider that you are no longer qualified to drive for J.P. Ryan.

This means that through your own actions that you cannot fulfil your contract of employment with us. We further consider that you have effectively left our employment.

We will process your termination with Revenue in due course.

The next correspondence is an email from the Complainant to the Respondent dated 11th September 2020 – almost 6.5 months later. This email reads as follows:

Dear Brian,

There is confusion. The last notice you sent me was on 15th April. In that note you state, “we will process your termination with Revenue in due course”. I was never presented with a formal notice of dismissal.

If you are going to sack me, the onus is on you to prove that I am no longer legally qualified.

Once again, I attach the certificate of NINE penalty points from the NDLS which applied on the date in question – and which still applies. If you contend that this is not accurate, you must produce proof.

I am giving you one last opportunity to produce this proof. If you cannot produce it, I am giving you a last chance to re-engage me as a driver. If you are going to do this, I would ask you to notify me before 3.00pm. Otherwise, I will ask my solicitor to file an application to the WRC for compensation for unfair dismissal.

Thank you.

The legal representative of the Complainant has stated that the dismissal   of the Complainant was his refusal to work additional hours in excess of 12 – 15 hours per day.

At the hearing of the complaint, I asked for information in relation to working hours. I received said information and now summarise this information as follows:

I have selected a six-week period and have looked at the start time and finish time and calculated the duration of each day. The results are as follows:

It should be noted that allowances for break periods e.g., lunch breaks etc have not been deducted from the totals shown above.

The Complainant’s representative has contended that the Complainant was working 12 -15 hours per day, this is not so. I do accept that the Complainant was working close enough to the maximum permitted hours but the suggestion that he was working 12 -15 hours per day is not accurate.

In coming to a conclusion I have to consider the Respondent’s contention that the Complainant was not dismissed from employment. I do accept that the Respondent made attempts to investigate the matter fully and in relation to the letters dated 9th and 13th March and finally 1st April 2020 the Respondent offered the Complainant the opportunity to provide the evidence required that would fully address the matter of his driving licence and penalty points. He failed to do so.

Based on the letter to the Respondent from An Garda Siochana dated 9th August 2019 the Respondent was of the genuine belief that the Complainant would be disqualified from driving.

The Respondent waited for 6.5 months before making contact with the Respondent in relation to said letters. This is not acceptable behaviour and is paramount to the Complainant abandoning his position with the Respondent.

The complainant as presented under s.8 of the Unfair Dismissals Act,1977 is not well-founded and therefore fails.

In coming to a conclusion, I have to consider the Respondent’s contention that the Complainant was not dismissed from employment. I do accept that the Respondent made attempts to investigate the matter fully and in relation to the letters dated 9th and 13th March and finally 1st April 2020 the Respondent offered the Complainant the opportunity to provide the evidence required that would fully address the matter of his driving licence and penalty points.

Based on the letter to the Respondent from An Garda Siochana dated 9th August 2019 the Respondent was of the genuine belief that the Complainant would be disqualified from driving.

The Complainant waited for 6.5 months before making contact with the Respondent in relation to said letters. This is not acceptable behaviour and is paramount to the Complainant abandoning his position with the Respondent.

The complainant as presented under s.8 of the Unfair Dismissals Act,1977 is not well-founded and therefore fails.

Unfair Dismissals ACT, 1977.