Complainant

Respondent

Anonymised Parties

A Worker

A Transport Company

Representatives

  The claimant represented himself

Aidan Leahy JOHN M JOY & CO , SOLICITORS

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00048157-001

15/01/2022

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00048158-001

15/01/2022

The complainant was employed as a truck driver with the respondent from the 9th.March 2021 to the 9th.April 2021.In his complaint form the complainant asserted that when he approached the respondent to pay for diesel, he got dismissed. The complainant referenced a previous adjudication with the WRC where he asserted his complaints regarding annual leave , training and bank holidays were upheld. The respondent denied that the complainant had been dismissed and asserted that the complainant had terminated his own employment and argued that this was confirmed in the text messages he submitted into evidence.

At the hearings the complainant asserted that when he started work he was expected to drive for some 20 minutes to another house and this had not been referred to when he was interviewed for the job. The complainant contended that he had been offended by his co- workers and that he reported this to the respondent who did nothing about it. The complainant asserted he worked long hours, 7 days a week and returned home late at nighttime. The complainant stated that when he approached the respondent to pay for the diesel the complainant used in attending various farms, the respondent replied he was not paying him and that he was sacked. The complainant stated that the respondent said to him he was damaging his trucks – the complainant acknowledged that some damage had been done to the trucks but said this was a normal occurrence – it was a few scratches.

According to the complainant, the respondent was demanding that he do more and more hours and the other drivers were doing less and less.The claimant submitted that he was dismissed on the 9/10th.April  - he asserted he got a text message to say he would get a P45 and there was no more work for him.

 The complainant was asked by the respondent’s representative if he recalled being trained by other drivers – he responded that he was trained for a few days. The respondent’s representative advised the complainant that a text message that had been introduced by him to the proceedings that  had been sent by another person and not the respondent. The representative asserted that the complainant had failed to identify the number it was sent from. The representative asserted that it had been wrongly presented as having been sent by his client. The complainant replied that this showed how he  was treated by the other drivers. The complainant was asked why he did not make his unfair dismissal complaint earlier and at the same time as his complaint under the Organisation of Working Time Act .

The complainant undertook to submit details of his efforts to mitigate his loss by seeking alternative employment.

1.       It is admitted by the Respondent that the Complainant was employed by the Respondent Company and commenced employment on the 9th of March, 202l.    The Complainant terminated his Employment with the Respondent Company on the 9th of April, 2021.

2.       Mr. F is a Director of the Respondent Company and his Mobile No. is 087 – 9493965.  The Complainant was employed by the Respondent Company for the period set out in the Complaint Form.    The Complainant was not employed continuously over  12 months and this will be raised as a preliminary point at the hearing.

3.       The Complainant made a separate claim under Complaint Ref: CA-00044101 Adjudication File Ref: ADJ00-33290.     An Adjudicators decision   was received by the Respondent by letter dated the 10th of January 2022 and has complied with the decision.

4.       The Complainant did not make his complaint within a period of six months of  the  date of his  dismissal as required under Section 8 (2) of the Unfair Dismissals Act, l977 and has not set out any grounds or reasons why the complaint was not submitted within the relevant Statutory period. The complaint was received by the WRC on the 15th of January, 2022.

5.       The Complainant was employed by the Respondent Company as a Truck Driver collecting Milk from various farms and during the period whilst he worked with the Respondent substantial damage was caused to the Respondents Truck.Copy Photographs are set out in Appendix A.  

6.       It is denied by the Respondent Company that the complainant was dismissed from his employment and the Respondent will rely on texts between the parties dated Friday the 9th of April, 202l from Mr.  F’s Mobile No. Appendix B. The text included in the complainants submissions dated the 9th April @ 17.44 was not sent by the respondent.

7.       When the Complainant left the Respondents employment there was a series of texts between the Complainant and the Respondent which are set out in Appendix C attached hereto.

During the hearing the respondent Mr.F said that the complainant rang on numerous occasions looking for work and while he did not submit references re. his previous experience, he decided to give the complainant a chance and see how things would go.  The respondent asserted that the claimant got 2 weeks training with other drivers. He asserted that the complainant did not get on with the other drivers and that he got complaints from his customers about him – one of whom said I don’t want that driver coming to his property again. The respondent referenced the complainant abandoning a truck at one stage. He asserted he did gave the complainant a chance and moved him from one area to another. The respondent asserted that one load of milk involved 4 hours work per day. The respondent asserted that the complainant stated to him if you do not pay me , you will need a new driver. The respondent said he got numerous complaints about the complainant’s driving skills. The respondent said that he told the complainant he was on probation. The respondent was adamant that he did not sack the complainant. According to the respondent the complainant blackmailed him – he was going to quit if he did not give him the money. The respondent said that he ie the respondent - replied  okay that’s fine .

The respondent said that he told the complainant not to arrive at the farms during milking time. He advised that the complainant when accessing Mr.X’s farm , the complainant knocked a wall.

The respondent’s representative advised that the holiday complaints had been dealt with and closed off following a previous WRC adjudication. He advised the complainant that a text message that had been introduced by him had been sent by another person and not the respondent. The representative asserted that the complainant had failed to identify the number it was sent from. The representative asserted that it had been wrongly presented as having been sent by his client.

 I have reviewed the presentations and submissions of the parties and noted their respective positions on the matter of dismissal. I note that the complaint has been referred under the Industrial Relations Acts and accordingly the jurisdictional matter of time limits does not arise.

It is not disputed that the termination of employment took place on the 9th.April 2021.Having reviewed the documentation and submissions made and in particular the text messages exchanged on the 9th.April 2021 – which were submitted by both parties – I must conclude that the complainant did not terminate his own employment – it was not unreasonable for him to conclude that when the respondent texted him “ It’s a pity things not work out …I’ll send you a P45 “, he was dismissed. This was written in response to the complainant’s request for an additional €10 a day for diesel.

In such circumstances, I must conclude that the complainant was dismissed without an investigation or being afforded fair procedures or his rights under natural justice and accordingly I uphold the complaint. While I acknowledge the respondents’ assertions re. the complainant’s performance issues with respect to driving expertise – this matter should have been dealt with in accordance with the company grievance and disciplinary procedures. I further accept the respondent’s representatives contention that the complainant should have made clear that the offensive text which he submitted did not emanate from the respondent and was written by one of the other drivers.

I recommend in full and final settlement of this dispute that the respondent pay the claimant €840 compensation.