Complainant

Respondent

Parties

Philip  White

Noons Transport Ltd.

Representatives

  Self-Represented

Ms L Conroy of Peninsula Business Services.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00047436-001

25/11/2021

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

CA-00047436-002

25/11/2021

The issues in contention concern a HGV Driver who alleged that he was Unfairly Constructively Dismissed and suffered Discrimination by a Transport Company.

The employment began in July 2018 and ended on the 1st of July 2021. 

The rate of pay was approximately € 517 basic with an additional weekly supplementary expenses payment.

CA-00047436-001 Equality & CA-00047436-002 Unfair Dismissal.

Both Complaints were merged into a single presentation of evidence. The Complainant was cross examined by Ms Conroy for the Respondent.

The Complainant gave an Oral testimony supported by a detailed Complaint form.

He had been employed by the Respondent Company as a HGV driver on a variety of work ranging from drawing Sand & Gravel loads from a Quarry to runs to and from various Ports to collect/drop off Trailers. He also did delivery runs from Suppliers to major Supermarket Distribution Depots.

When Covid happened in 2020 he had been placed on the TWSS scheme which was supplemented by the Respondent. He was always being told by the Respondent that things were very quiet and to look for other work if available.

In June 2021 a previous employer offered him “Holiday Cover” work. He had contacted the Respondent Principal, Mr N, who told him to take the work as he had nothing for him. He had made it clear to Mr N that the Holiday Cover was purely temporary and that he wanted to remain with the Respondent Company.

Some weeks later the Complainant was shocked to see his former Respondent Truck back on the Road but driven by a driver who he knew was a close friend of Mr N. It was his view that he had been manoeuvred into leaving the Respondent to make way for this close friend of Mr N.

The argument that he had been chiefly employed on Sand and Gravel at the A Quarry was not accepted. He agreed that he did not have much experience of air pressure Grain Trailers, but this would easily been rectified by very minor Training. He agreed that during the Height of Covid he had not gone/driven trucks to various Ports such as Dublin due to very high levels of Covid in these Urban areas. This was not unreasonable for any employee.

His Discrimination claim was based on the Age and Refusal to Provide Training Grounds. He should have been offered the opportunity to training on the Air Pressure Trailers and this was due to his age.

In summary he had been aware of the financial pressures that the Respondent employer was under and taking the Holiday cover job was in many ways an effort to help them out by not being on the Payroll. It was purely temporary and not a full-time resignation. However, when he saw his truck back on the Road driven by a close friend of the Respondent, he knew he had been “walked into” leaving the job so that the friend could be taken on in his place.

It was a clear case of Constructive Dismissal and Discrimination.

CA-00047436-001 Equality & CA-00047436-002 Unfair Dismissal.

As above both Complaints were taken together in evidence. Ms Conroy for Peninsula represented the Respondent with Oral testimony from Mr N, the Respondent principal supported by a management colleague, Mr O’C.

Mr N stated that the Respondent was a Trucking Company based in the Midlands. Their major clients were Bord na Mona, Glanbia Animal Feeds, and other smaller concerns. One such smaller client was the Arkle Quarry where the Complainant was primarily engaged in Sand & Gravel deliveries to various construction/civil works sites. Covid hit hard. Construction shut down and the demand for Transport fell off completely. In addition, Bord na Mona was phasing out its Peat/Turf business and radically reducing transport demands. By the Summer of 2021 what work that was available was generally (1 or 2 per week) trips to Ports such as Dublin/Waterford to collect Animal Feed for Glanbia and other big Agricultural sites. There was no full time work available. The Respondent business was in survival mode.

The Complainant had contacted Mr N in June 2021 regarding the other work he had been offered by another local Haulier. He immediately told the Complainant to take the work as he had nothing for him. The contract with the Quarry was effectively lapsed as the demand for the product was not picking up and he was concerned with the commercial aspects of the deal. It was very low margin business for trucks that could be better used elsewhere.

It was never made clear by the Complainant that the other work was temporary or would only last for a few weeks. He, Mr N, understood that the Complainant was leaving the Respondent on a permanent basis.

As regards the return of the Complainant’s usual Truck to the Road this was on a completely casual basis, as the need arose, with a self-employed driver – Driver X. No one denied that this driver had recently been released from Prison. However, at the key date in June 2021, Mr N, had no idea when Driver X would be released from Prison. The idea that the Complainant was pushed aside to facilitate a job for driver X was nonsense. As regards Air Pressure trailers there was no issue. He could have been trained at any time if the need had arisen, but the Complainant had resigned before any suggestion of training of this nature could arise.

In summary the Respondent was firmly of the view that the Complainant left the Company in June 2021 on a permanent basis. No suggestion of Unfair Dismissal or Discrimination could arise.

Ms Conroy cited extensive case law in support of the Respondent case including Melbury Development v Velpetters (EDA0917) and McCormack v Dunnes Stores (UD 1421/2008) as headline cases.

Although both complaints (CA-00047436-001 Equality & CA-00047436-002 Unfair Dismissal.) were merged in the evidence and submissions for convenience they will be dealt with separately below.

3:1          Unfair Constructive Dismissal. CA-00047436-002 Unfair Dismissal.

The Legal position in summary.

A Constructive Dismissal complaint has three legal “Tests” to face before it can be accepted. These are

1.       Fundamental Breach of the Employment Contract

2.       Appalling /very Bad Unreasonable Behaviour

3.       Use of Employment Procedures.

To consider this claim it is necessary to use these Tests to consider the evidence presented both in Oral Testimony (given under sworn Oath) and the Written documents.

3:1:1          Breach of the Employment Contract

Legal precedent has established that any “breach” in a Constructive Dismissal case has to be really fundamental – “go to the heart of the contract” is the phrase used. This generally means a failure to pay wages or grant proper holidays or regularly ask an employee to do work that is completely inappropriate and demeaning. Likewise, actions by an employee that are completely wrong and damaging to the employer or the business.

In this case nothing of this nature occurred on either side. The Responded used the TWSS to the full and topped up wages as long as he could bear the financial cost. The Employee was always in full agreement and no actions happened to cause either side to feel upset.

As a first Test for Constructive Dismissal, it is not supportive of the Complaint.

3:1:2       Unreasonable Behaviour.

The Legal precedents here require the Behaviours to be so bad (the word egregious is often used) that no reasonable person could be expected to put up with it. Resignation has to be the only option for a reasonable person. In this case the Complainant was on long term lay off prior to his resignation in July 2021. His main complaint, it appeared to the Adjudicator from the Oral Testimony, was that the Respondent Employer effectively “pulled a fast one” by accepting the Resignation as long term to clear a path for this Friend coming out of Prison. The Complainant felt that he had made it clear that the Holiday job was for “at most four weeks” and he would be back to the Respondent’s employment. This was sworn testimony.

However, he shortly afterwards saw his usual truck on the Road with the other Driver X thus confirming that he had been replaced.

The Respondent Principal completely denied, under sworn Oath, this construction of events.

In evidence it appeared that the “Four Week” job had lasted to June 2022 i.e a full 12 months and only finished as the Complainant had health issues.

From an Adjudication point of view there is the question of the conflict of sworn evidence and from a strict legal point of view much of the issues regarding the Truck, Driver X, his Prison release date etc in late July/August are “post resignation” and as such not strictly reckonable in considering the 1st July resignation.

The Oral Testimony of both Parties was impressive. However, the Respondent principal stated that he had spoken to the other Haulier Mr W (who he knew personally) and it was confirmed that it was a long-term job. On balance the view has to be with the Respondent. He accepted the Resignation as he had no work for the Complainant and knew he was going to a longer-term job than any he could provide.

From a Constructive Dismissals point of view the test is one of Very Bad Unreasonable Behaviour.

None of this was evident and the second Test does not support the Claim of Constructive Dismissal.

3:1:3         Use of Employment Procedures

This does not really arise here as the Complainant and Respondent had no disagreements prior to the Resignation that would have necessitated use of any procedures.

3:2       Employment Equality Discrimination complaint. CA-00047436-001

Legal Summary.

In an Employment Equality Act,1998 complaint it is necessary to establish from the start that the case is based on firm grounds. Section 85A – the Burden of Proof - of the Act refers

Burden of proof.

85A.—(1) 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.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to a Complainant.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the  Director General of the Workplace Relations Commission under section 85(1), facts are established by or on behalf of the Authority from which it may be presumed that an action or a failure mentioned in a paragraph of that provision has occurred, it is for the Respondent to prove the contrary.

(4) In this section "discrimination" includes—

(a) indirect discrimination,

(b) victimisation,

(c) harassment or sexual harassment,

(d) the inclusion in a collective agreement to which section 9 applies of a provision which, by virtue of that section, is null and void.

In plain English this means that the Complainant must first off establish some inferences that Discrimination occurred. Discrimination is generally defined as being where one person, generally the Complainant, is treated “Less favourably” than another person.

It is not necessary to prove this at the start but there must be enough of a suggestion or inference to allow the complaint to proceed. There are some 10 grounds of Discrimination listed in the Act varying from Age, Sexual or Religious Discrimination, Race, Marital/Family Status, Membership of the Travelling Community etc. None of these apply here.

In the Complainant’s Oral Testimony, the main issue was the lack of Training on the Air Pressure Trailers. The Respondent denied that this was ever an issue as the Complainant had spent most of his time on Quarry Work or Seaport to Glanbia haulage. It simply never arose.

The evidence from the Complainant was not sufficient, from an Adjudication point of view, to establish a case for Discrimination. The complaint lacks a solid legal foundation – a prima facie case to quote the Legal technical term, is lacking.

The Adjudication case has to be that the Complaint cannot proceed for lack of evidence on which to base a solid opening case.

3:3:         Adjudication Summary

The Three Tests for a Constructive Dismissal case, as discussed above, are not in the Complainants favour. The Adjudication view has to be that no Constructive Dismissal took place. It was a Resignation.

As Regards the Employment Equality Act,1998 complaint it lacks solid legal evidence to properly base a Complaint. The Complaint has to be deemed Not to Succeed.

Unfair Constructive Dismissal, Employment Equality.