Complainant

Respondent

Parties

Jonathan Foy

Richmond Marketing

Representatives

Geraldine Foy Foy Consultants

Lydia Dodd IBEC

Act

Complaint Reference No.

Date of Receipt

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-00045757-001

20/08/2021

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

CA-00045757-002

20/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 86 of the Employment Equality Act, 1998

CA-00045757-003

20/08/2021

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

CA-00045757-004

20/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00045757-005

20/08/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00045757-006

20/08/2021

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-00045757-007

20/08/2021

The complainant worked for the respondent from the 12th April 2018 until his dismissal on the 13th August 2021. He was paid €2,375 per month. He claims unfair dismissal and other contraventions. The respondent denies the claims.

The complainant outlined that his dismissal in August 2021 was unreasonable. The dismissal arose out of a personal grudge against the complainant. There had been a breach of privacy and of GDPR in the lead-up to the dismissal.

The complainant gave an example of when he took annual leave, he had to double-job as his work was not covered during the leave. He also received phone calls from store managers during a period of leave. The complainant said that he found it difficult to take daily rest breaks because of the workload and the travelling. He would be lucky to get 20 minutes break in a day and there were no working time records.

The complainant outlined that the role involved both deliveries to stores and sales, where he would talk with a store manager. Some store visits could take two hours. The complainant said that it was difficult to contact his line manager. The complainant referred to the outcome of a previous disciplinary process, where the relevant manager had been very positive about the complainant. Ms O’Neill had not adopted this view, as stated in the letter of dismissal. In respect of the claim of discrimination, the complainant said that this was unfair treatment in work.

The complainant said that the toll tags, the twitter information and the map were cited in the letter of dismissal were not put to him during the disciplinary process. The complainant said that at the meeting of the 13th July he had apologised for missing the half-year review, but this was not acknowledged in the letter of dismissal.

The Payment of Wages complaint related to the lunch money he was owed for seven days in August 2021. This was a fixed daily payment of €12 and claimed separately to pay. The complainant said that he had not received notice pay.

The complainant said that he was not supplied with a reference and could not ask for one. He started as a self-employed courier in November 2021. With tax credits, he was now earning more.

In cross-examination, the complainant accepted that he had not submitted the lunch money claim and never wrote to his employer that he did not get breaks. He had told managers over the phone. The complainant said that following his dismissal, he applied for every job going and then decided to become self-employed. The complainant was asked which discriminatory ground the Employment Equality claims were grounded; he did not answer.

The complainant said that he was not treated fairly or equally in the disciplinary process. The complainant said that he was sent the minutes after the disciplinary outcome letter.

The complainant was not sure whether he had received the 2nd April as a day off in lieu, as suggested by the respondent. He said that he had been in the trade for years and no one had ever said a bad thing about him. The complainant said that the warning of March 2021 was for excessive personal use of the van, so he then only used the van for work purposes. The complainant said that during a stock take, he would see what was required and, to speed things up, would input this before meeting the store manager. On the occasion cited by Ms O’Neill, he had not been able to meet the store manager.

In closing, the complainant said that he was unfairly dismissed and not given a right of reply. The respondent had wanted to get rid of him following him fighting back on the previous fuel card issue.

The respondent outlined that the complainant’s dismissal was based on him not being where he should have been. This was a matter of trust and confidence. There were two investigation meetings and the disciplinary meeting. The complainant was already on a final written warning.

On affirmation, Ms O’Neill commented that the practice with one prominent retailer was to take orders one day and to bring the product the following day. A colleague took a week of annual leave, and his work was allocated amongst colleagues, including the complainant. During this week, the respondent had received complaints from two stores: Rathmines and Clondalkin. The evidence showed that the complainant had not visited Rathmines on the Wednesday and the store manager had stated this. The complainant had been asked to prioritise this retailer over others.

Ms O’Neill said that the complainant had been wrong to close off files at the same time, and they should have been closed off as the work was done. They had asked the complainant not to do work for two other retailers during this week. She outlined that having reviewed the information, the previous warning and the complainant not taking accountability, they had no choice but to dismiss him.

In cross-examination, Ms O’Neill stated that the complainant’s workload was manageable. She did not accept that the complainant’s week was stressful. She said that the complainant’s timeline did not add up. It did not add up that the complainant had to wait for an hour to meet a store manager after inputting the order.

In closing, the respondent submitted that this was not the first breach of trust and confidence. The respondent had made a significant effort to look past the complainant’s failings, but this could not be done again.

The complainant worked for the respondent from the 12th April 2018 until his dismissal on the 13th August 2021. While his role was retitled ‘Account Developer’, the role remained the same. He attended different stores to restock product or to achieve sales, including building promotions. Much of the issues in this case arose around interactions with one retailer, said to be the most challenging.

What is striking from the evidence is that central to the role is good relationships with store managers. I appreciate that the complainant was filling in for a colleague for the week of the 5th July 2021. The respondent’s case was that the complainant had not attended the Rathmines store, while the complainant said that he had. There is no evidence of what this store manager said, and I note that the store manager may not have known who the complainant was.

One of the issues in the disciplinary process was why the complainant attended a city centre store on the Wednesday in question. He said that this was because the relevant store manager had contacted him to fill a fridge. This was not contradicted by the respondent. Given that relationships with store managers were so important, I can see why the complainant attended to this job, even though he had plenty of other work on his roster.

As well as the different store managers and differing demands of the retail chains, I appreciate that the Account Developers had to grapple with great travelling distances, congestion and the challenges of the role. The complainant spoke of long hours and the respondent did not have working time records to contradict his account.

For completeness, I find that the complainant’s working time started as soon as he left his home to his first call, in line with the judgment of the CJEU in CCOO v Tyco (C-266/14). His working day ended on his return home. The complainant was a peripatetic worker based in the field.

I find that the complainant was not a ‘mobile worker’ within the ambit of the ‘Mobile worker’ Regulations. The working time of ‘mobile workers’ is subject to Directive 2002/15/EC, transposed by S.I. 36/2012 (as amended). The 2012 Regulations address working time for mobile workers, be they employed or self-employed. The Directive and transposing Regulations apply to ‘mobile workers’ to whom Council Regulation 561/2006 and the AETR apply. (AETR - European Agreement Concerning the Work of Crews of Vehicles Engaged in International Road Transport). The Council Regulation applies to drivers of heavy goods vehicles over 3.5 tonnes or buses carrying nine or more people, subject to exceptions. It is, therefore, clear that the complainant was not a mobile worker within the ambit of the 2012 Regulations. While he drove a great deal for work, he drove a car and not either a lorry or a bus. It follows that the complaints pursuant to the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations are not well-founded.

The administrative process distilled seven complaints from the complaint form completed by the complainant. I make findings in respect of each of the seven complaints.

CA-00045757-001

This complaint is not well-founded as the complainant was not a ‘mobile worker’ per the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations.

CA-00045757-002

This is a complaint pursuant to the Unfair Dismissals Act. I find that the complainant was unfairly dismissed, and I make this finding for the following reasons.

I appreciate the importance of trust and confidence in employees of the respondent, who are in the field and liaise directly with store managers. I appreciate that it is a difficult job with demanding retailers. Relationships with store managers are important and flexibility is required in the role.

The respondent grounded the dismissal on gross misconduct and a breach of trust and confidence. I find that the respondent has not justified the dismissal on substantial grounds, including misconduct.

There was the substantial flaw in the disciplinary process in that the complainant was informed there and then of his dismissal on the 13th August 2021. It was also a substantial flaw that material was included in the disciplinary outcome letter of the 17th August that was never put to the complainant. This included the tweets and the toll tag data. The process was also unfair because it was so wide-ranging and impossible for the complainant to meet.

Essentially, the respondent’s case was that the complainant had not attended the named Rathmines store when he said he had. What was missing was evidence of the complainant’s failure to attend, i.e. a statement from the relevant store manager. I see the credibility issue with the complainant saying he walked from Henry Street to Rathmines in 15 minutes, but this issue was lost in the wide-ranging issues discussed in the disciplinary process. There was no other issue of alleged wrongdoing that was substantiated or could form the basis of a lawful dismissal. The complainant said he attended the store to carry out the audit and there is no evidence that he did not.

Other than the question of whether the complainant actually attended Rathmines on the Wednesday, no other issue of substance was proven against the complainant. It is significant that the respondent did not consider statements from the store managers the complainant did have an ongoing relationship with. While the complainant was evidently stressed, the evidence suggests he was attending well to his stores. The issue here arose with a store in a colleague’s bailiwick and not the complainant’s. 

There was no other issue that could warrant a finding of wrongdoing to justify a dismissal. This applies equally to an employee on a final written warning. There was no obvious connection to the issue arising in that warning.

Having found that the complainant was unfairly dismissed, I decide that redress is the just and equitable form of redress. I accept that the complainant looked for alternative work and then went self-employed. I find that he did not contribute to his dismissal and sought to mitigate the financial loss. I award redress that is just and equitable of €10,000.

CA-00045757-003

This is a complaint of discrimination pursuant to the Employment Equality Act. I find that the complaint does not succeed as the complainant has not pointed to any of the nine discriminatory grounds to base his complaint. Unfair treatment does not amount to discrimination, unless related to a discriminatory ground.

CA-00045757-004

This is a complaint of a contravention of the Employment Equality Act. I find that the complaint does not succeed as the complainant has not pointed to any of the nine discriminatory grounds to base his complaint. Unfair treatment does not amount to discrimination, unless related to a discriminatory ground.

CA-00045757-005

I have found that the complainant was unfairly dismissed and is therefore entitled to statutory minimum notice per the Minimum Notice and Terms of Employment Act. The complainant is entitled to two weeks of statutory notice: €1,187.50.

CA-00045757-006

This is a complaint pursuant to the Payment of Wages Act in respect of 7 payments of €12 due for the complainant working in August 2021. I find that these were not precluded expenses under the Payment of Wages Act as this was a set payment for a day of work. The complainant was entitled to this payment and not paid it. This is a contravention of the Payment of Wages Act in the amount of €84.

CA-00045757-007

This complaint is not well-founded as the complainant was not a ‘mobile worker’ per the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations.

CA-00045757-001

This complaint is not well-founded as the complainant was not a ‘mobile worker’ per the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations.

CA-00045757-002

For the above reasons, I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant €10,000 as just and equitable compensation for the unfair dismissal.

CA-00045757-003

I decide that the complainant has not set out a prima facie case of discrimination, nor a contravention of the Employment Equality Act.

CA-00045757-004

I decide that the complainant has not set out a prima facie case of discrimination, nor a contravention of the Employment Equality Act.

CA-00045757-005

I decide that the complaint pursuant to the Minimum Notice & Terms of Employment Act is well-founded and the respondent shall pay to the complainant €1,187.50.

CA-00045757-006

I decide that the complaint pursuant to the Payment of Wages Act is well-founded and the respondent shall pay to the complainant €84.

CA-00045757-007

This complaint is not well-founded as the complainant was not a ‘mobile worker’ per the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations.

Delivery work / mobile worker / Unfair Dismissals Act