Complainant

Respondent

Parties

Valentin  Arghiropol

Michael Dixon International Transport Limited t/a Dixon Transport

Complainant

Respondent

Anonymised Parties

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Representatives

Barnaba Dorda SIPTU

 MP Guinness B.L. instructed by B. Vincent Hoey & Co, Solicitors

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-00053852-001

24/11/2022

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

CA-00053852-002

24/11/2022

The hearing took place in person and although a witness for the respondent undertook to give evidence under affirmation and the complainant undertook to give evidence under oath, it was agreed that the facts and detail of the termination were not in dispute, merely the interpretation of the documentation.  However, the complainant did give evidence and was cross examined in relation to mitigation factors regarding loss of earnings.

The complainant submitted that he complained that he started his employment with the respondent as a domestic truck driver in October 2018. He submitted that he was dismissed from his employment on 4 August 2022. In June 2022 the complainant sought 4 weeks annual leave to collect his new car from Romania. On 8 June he received a response stating “I understand that you say you must go home again for a car!!! But I want to stress that this is a break again in your full-time employment contract as a domestic Irish driver and that we reserve the right to fill the position that you leave vacant. Please check with JK when you are available again and he will confirm if your position in domestics is available or if we can accommodate you in another area like UK or Europe driver positions. I'm sure we will accommodate you with some position within the company”.

The complainant submitted that he went to Romania on 6th July for approximately 4 weeks. He notified his employer about his return on four August 2022 and got an immediate response from his employer who stated that his departure meant a break in his contract and there was no work for him at that time.

The complainant submitted that he considered this a dismissal and lodged a complaint to the WRC. The claimant submitted text exchanges between himself and the respondent in support of his complaint.

The claimant submitted that the manner in which his employment ceased amounted to a dismissal and that he was not afforded any procedures prior to his dismissal.

The complainant stated that he started work with another company on 29 August 2022 but left that company in October. He submitted a pay slip and documentation from the revenue commissioners outlining his income with the respondent and his income with his subsequent employer.  The complainant stated that although he made efforts to contact other employers, he had no documentary evidence as he could not find his emails, he said he made the efforts by phone by e-mail and by talking to friends and applying on company websites for employment.

The respondent submitted that the complainant was not dismissed but that he effectively resigned when he took unpaid leave knowing that this leave would constitute a break of his employment contract. The respondent submitted that the complainant had taken in excess of his annual leave on a number of occasions throughout his employment. The respondent indicated that while it accommodates additional unpaid leave the complainant sought more accommodations than most, in 2019 he took 30 days, in 2020 he took 47 days, and in 2021 he took 80 days leave. In 2022 the complainant took 28 days leave up to the date that he left employment.

The complainant worked the first eight weeks of the year and took the ninth as holidays in the normal way.  Following this he took an additional week off and returned to work on March 6. Upon his return he did not get his usual truck as it was required for international haulage.

The complainant was absent again from 19 March to 14 May and informed the respondent that his brother's child was unwell. Upon his return he worked for a few weeks.  On 8 June he contacted the respondent to indicate that he needed to go back to Romania for about a month as he had ordered a new car. In response the respondent confirmed that the complainant had worked only 15 out of 23 weeks that year and his contract allowed four weeks paid holidays. The respondent noted that his request to go for four weeks to Romania to pick up a car constituted a break in his full-time employment as a domestic Irish driver and that they reserved the right to fill his position which had now become vacant. The communication also indicated that they would accommodate him with some position within the company on his return in UK or Europe driver positions.

The respondent submitted that the complainant acknowledged that he understood it would be a break in his contract and he took his leave.

CA-00053852-001

The complainant’s representative indicated that the complainant was aware that there was a difference between a contract of employment for an international driver and a contract of employment for a domestic driver. In fact, it was clarified that the complainant had previously resigned from a contract for an international driver with the respondent and took up at a later stage contract for a domestic driver with the company.

There was no conflict between the parties regarding the factual aspects of the end of the complainant’s employment. The difference between the parties relates to the interpretation of the email sent by the respondent and the complainant’s subsequent response.  The paragraph in contention reads as follows “I understand that you say you must go home again for a car!!! but I want to stress that this is a break again in your full-time employment contract as a domestic Irish driver and that we reserve the right to fill the position that you leave vacant. Please check with JK when you are available again and he will confirm if your position in domestics is available or if we can accommodate you in another area like UK or Europe driver positions, I'm sure we will accommodate you with some position within the company."

Having regard to the employment history outlined be the complainant’s representative I am satisfied that the complainant knew that there were different contracts between international drivers and domestic drivers given that he had previously resigned from an international contract with a view to getting a domestic driver's position somewhere. He subsequently got a domestic drivers contract with his employer.

The complainant confirmed to the adjudicator that he did not need an interpreter and that his English was good enough. Neither he nor his representative ever sought an interpreter. Therefore, when the complainant’s representative submitted that this client did not understand the exchange I am satisfied that this was not down to the complainants linguistic ability.

The respondent clearly outlined to the complainant that there would be a break in his employment contract if he left to pick up his new car in Romania. In response he sent a message saying “thanks for understanding and replying. It's seem fair enough (sic)”.

Having regard to the complainants understanding of English and that he had previously resigned from an international drivers position in order to get the domestic driver's position, i am satisfied that he understood that his employment would come to an end if he chose to return to Romania to collect his new car.  Therefore, I find that the complainant knowingly left his position as a domestic driver and in effect resigned from his position. I find that the complainant was not unfairly dismissed.

CA-00053852-002

Arising from my finding that the complainant was not dismissed, I also find that he was not entitled to a period of minimum notice.

CA-00053852-001

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

CA-00053852-002

Having considered all the written and oral evidence presented in relation to this complaint, my decision is that the Act was not contravened.

Unfair dismissal – no dismissal established – Minimum notice – no entitlement – Act not contravened