Complainant

Respondent

Parties

Allesandro  Mendes

Mlp Plant Hire Limited

Representatives

Neil Cosgrave Cosgrave Solicitors

Patrick Enright Enright & Co. Solicitors

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-00049694-002

14/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00049694-003

14/04/2022

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-00049694-004

14/04/2022

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

CA-00049694-005

14/04/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant gave his evidence under oath while the four witnesses for the respondent (the MD, Office Manager, Overseer and Foreman) their evidence under affirmation.

The respondent gave evidence that the complainant’s gross weekly wage amounted to €533.08. This was not disputed by the complainant.

CA-00049694-002 Terms of Employment

The respondent accepted that the complainant was not provided with a written statement of his terms and conditions of his employment.

CA-00049694-003 Rest breaks – Organisation of Working Time Act

The respondent submitted that the complainant was not denied rest breaks but accepted that no documentation was kept in relation to those breaks as required under the Act.

CA-00049694-004 Rest breaks - Road Transport Regulations 2012 - S.I. No. 36/2012

The respondent submitted that the complainant was not denied rest breaks but accepted that no documentation was kept in relation to those breaks as required under the Regulations.

CA-00049694-005 Unfair Dismissal

The respondent submitted that the complainant was not dismissed as refused to carry out procedures as instructed. He then walked off the job.

Witness testimony:

Witness #1 – the Managing Director

The managing director gave evidence regarding waiting times of drivers in the morning time and noted that they could take breaks at this point in time.  He also noted that there was no reason why a lorry couldn't be turned off to enable a driver to take a break.  He stated that no records were maintained regarding breaks by drivers.  He noted that the complainant was not dismissed. He said the first that he heard of the incident was when the overseer rang him to inform him that the complainant had said he was not going to leave his truck in Dublin as had been agreed under the new practise.  He stated that the complainant said he was not coming in tomorrow and that he was not going to drive the truck. The MD took this to mean he was resigning as he had on two previous occasions quit but subsequently returned. As regards unanswered call the witness noted that he was on holiday at that time and did not always carry his phone with him on holiday.

In cross examination he was told that his recollection isn't exactly clear that on the day of the 21st of March as there was a lengthy conversation lasting 8 minutes. However, he said that he called the complainant who decided he was not doing the job anymore and that he was finished. He called back to see would the complainant change his mind around 3:00 o'clock. The witness noted that he told the complainant that he was not fired but that he fired himself. He clarified with the complainant as to whether he wanted to drive and he said no. The witness repeated that the complainant previously resigned his position and noted that on this occasion the respondent had put a solution in place by providing van transport to and from Dublin.

The MD noted that the main reason for the change in practise as regards leaving troops in Dublin is due to the increased cost of diesel.

Witness #2 – the Overseer

The witness noted that the plan was to drive the trucks to Dublin and leave the trucks there and to collect the drivers.  He said on 21 March when he rang the complainant at 1:30 to arrange to pick him up he found he was already on his way home and hadn’t wanted to wait around for the others.  He stated that the complainant said that “if P. is bringing his lorry home I'm bringing mine”. He stated that when complainant refused to engage with him, he rang the MD.

Witness #3 – the Foreman

The witness noted that previously when he had been injured as a result of the car crash, the complainant had refused to drive his truck on that occasion even though his truck had to go as it contained all the tools to complete the job. He noted that later on on that occasion the complainant reconsidered and did drive his truck.

Witness #4 – the Office Manager

The witness noted that if a driver is leaving they are required to hand over their diesel card.  In this case the complainant returned his card some days later. Under cross examination she said that the MD had informed her that the complainant was not returning to work therefore she sought the return of the diesel card. As far as she was concerned the complainant had decided to leave because he did not want to drive up to Dublin except in the truck .  She stated that there were three options on the table at the time - the respondent offered money to pay for his diesel, he was offered the use of a van, and was offered the option of coming home earlier but still be paid up to 5pm.  None of these options were acceptable to the complainant.

CA-00049694-002 Terms of Employment

The complainant submitted that he was not provided with a written statement of his terms and conditions of his employment.

CA-00049694-003 Rest breaks – Organisation of Working Time Act

The complainant submitted was not provided with rest breaks in accordance with the Act.  The complaint further submitted that the respondent was in breach of Section 25 of the Organisation of Working Time Act.

CA-00049694-004 Rest breaks - Road Transport Regulations 2012 - S.I. No. 36/2012

The complainant submitted was not provided with rest breaks in accordance with the Regulations.

CA-00049694-005 Unfair Dismissal

The complainant submitted that he was unfairly dismissed.

Complainant’s testimony:

The complainant stated that in relation to the incident on 21 March the respondent didn't give him a chance to talk to them but simply indicated that he needed to decide there and then what he was going to do and, in the circumstances, where he was not going to comply they were going to replace him.

The complainant stated that he had an argument with the overseer and then with the MD.  He noted that after the incident of the 21st of March he returned the truck to the yard, but he never said he was leaving. He stated that he tried to ring the MD five or six times without answer and the MD only answered when he tried using his wife’s phone to contact him. The complainant stated that he wrote to the office manager asking was I fired but received no reply and when he was on the phone to the MD, he asked was he fired and the MD replied “you fired yourself”.

It was put to the complainant that his recollection was rather unclear as he had not mentioned having a heated conversation with the overseer and then said that he did not have a heated conversation with the managing director despite what his representative insisted. He said he had no problem with the van but that only two drivers were asked to leave their trucks in Dublin. He said that he never refused to drive the truck, he only refused to drive his own personal car to and from premises in Dublin.

The complainant clarified that the first time he had a difficulty with the respondent he stopped driving and went to the union to get matters resolved.  In response to questioning he noted that his union representative had told him he should go back on this occasion.

CA-00049694-002 Terms of Employment

The respondent accepted that the complainant was not provided with a written copy of the terms and conditions of his employment. I therefore find that this complaint is well founded and order the employer to pay the complainant compensation equal to four weeks’ pay (i.e. €533.08 x 4 = €2132.32) which I consider to be just and equitable having regard to all the circumstances.

CA-00049694-003 Rest breaks – Organisation of Working Time Act

The respondent submitted that the complainant was provided with work breaks and during oral evidence made reference to times and situations where the complainant may or could have taken breaks.  The complainant for his part provided no details of when he was not able to take breaks but noted that he did not consider that it was fair to take breaks in his truck.  Having regard to the evidence presented by the complainant I am not satisfied that he has provided evidence of not being allowed to take breaks and I do not find that the compliant was well founded.

As regards the keeping of records regarding breaks under the organisation of Working Time Act, section 25 is outside the remit of an Adjudication Officer with the WRC.  Section 27(1) of the Act outlines as follows: “In this section “relevant provision” means— (a) any of the following sections, namely, section 6(2), sections 11 to 23, or section 26,”

CA-00049694-004 Rest breaks - Road Transport Regulations 2012 - S.I. No. 36/2012

The respondent confirmed that it did not comply with its obligations under S.12 of the Regulations.  Accordingly, I find that this complaint is well founded, and I require the employer to pay the complainant compensation equal to four weeks pay (i.e. €533.08 x 4 = €2132.32) which I consider to be just and equitable having regard to all the circumstances.

CA-00049694-005 Unfair Dismissal

As regards the unfair dismissal there is a conflict of evidence between what the MD stated happened in the phone conversation and what the complainant related. On balance I prefer the account of the MD for the following reasons:

·        the witnesses gave evidence that the complainant had resigned before, and this was confirmed by the complainant himself.

·        The MD stated that in the course of their conversation the phrase “you fired yourself” was used and this was confirmed by the complainant in the course of his evidence.

·        There is no disagreement that the complainant did not leave his truck in Dublin as instructed and preceded to return to the company based in Navan without waiting to collect anybody else.

·        The complainant did not provide any reason as to why he could not wait in Dublin, given that he was being paid up to 5 pm.

On balance I'm satisfied that complainant indicated that he would not be driving again. I also find it instructive that complainant sought the advice of his union but it did not follow that advice.

As regards the phone records submitted, I note that they are not a complete record and so are of limited value.

In the circumstances I am not satisfied that he complainant has established his dismissal and find that the complainant was not unfairly dismissed.

CA-00049694-002 Terms of Employment

Having regard to all the written and oral submissions in relation to this complaint, my decision is that the complaint is well founded, and I award the complainant compensation of €2132.32 which I consider to be just and equitable in all the circumstances.

CA-00049694-003 Rest breaks – Organisation of Working Time Act

Having regard to all the written and oral evidence presented in relation to this matter, my decision is that the complaint is not well founded.

CA-00049694-004 Rest breaks - Road Transport Regulations 2012 - S.I. No. 36/2012

Having regard to all the written and oral submissions in relation to this complaint, my decision is that the complaint is well founded, and I require the respondent to pay the complainant compensation of €2132.32 which I consider to be just and equitable in all the circumstances.

CA-00049694-005 Unfair Dismissal

Having regard to all the written and oral evidence submitted in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

Terms of employment - well founded – award of compensation – organisation of working time act – breaks - not well founded – Road Transport regulations – breaks – well founded – award of compensation – unfair dismissal not established.