Complainant

Respondent

Parties

Petr  Kunert

Driver Leasing Europe Ltd.

Representatives

Petr Bláha Romodrom o.p.s.

Lukas Sklar Driver Leasing Europe Ltd.

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-00053050-001

08/06/2022

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

CA-00053050-002

30/09/2022

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

CA-00053050-003

30/09/2022

The Complainant worked for the Respondent business as a truck driver from 21st of September 2020 until the 3rd of March 2022 when he was dismissed for allegedly not providing sick certs. The Complainant had been on sick leave from April 2021.  The Complainant also submitted a complaint under the minimum notice act which is contained within ADJ-00039301. That complaint was submitted on the 8th of June 2022 whereas this complaint was submitted on the 30th of September 2022, outside of the 6 month time limit.

Unfair Dismissal Act Claim - CA-00053050-001

It is clear from the narrative in the first form, ADJ-00039301, that the Complainant was disputing whether his dismissal was legal, though he only ticked the box under the minimum notice act.

It is well established that the WRC complaint form is not a statutory form. The Unfair Dismissals Act makes no reference to the WRC form and simply outlines that a claim for redress under that Act is initiated by giving a notice in writing to the WRC. The Complainant has substantially complied with that obligation in his initial form under ADJ-00039301.

When the Complainant submitted the form relating to these complaints, he referred to the earlier form and associated the complaints. In the circumstances I am satisfied that in considering CA-00053050-001 I am dealing with a complaint under the Unfair Dismissals Act that was contained in the narrative of the form relating to ADJ-00039301. I note the position outlined by McGovern J in County Louth VEC v Equality Tribunal [2009] IEHC 370:

If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same

As such I take the view that the complaint form in this case, ADJ-00042570, amended the complaint submitted on 8th of June 2022 regarding both the notice period and dismissal. As such I have amended the date of receipt in CA-00053050-001 to reflect the earlier form.

For transparency I would note that instead of proceeding to consider CA-00053050-001 as in time and under this decision ADJ-00042570, I could have instead had a new CA reference added to ADJ-00039301 and considered the Unfair Dismissal complaint that way. In the circumstances I am satisfied that this option would not have made any difference and relates more to the internal administrative systems within the WRC rather than the fair determination of the complaint.  

Organisation of Working Time Act Claims CA-00053050-002-003

Unlike the above claim under the Unfair Dismissal Act, the Organisation of Working Time Act complaints were referred to the WRC for the first time in the form submitted on the 30th of September 2022. The narrative submitted on the 8th of June 2022 does not refer to any alleged working time issues. As such these complaints are clearly out of time and there is no basis for me to consider the approach taken in CA-00053050-001.

Mr Lukasz Scarr for the Respondent gave evidence under affirmation and provided written submissions.

He disputed that the Complainant began working for the Respondent in September 2020. He had worked for the Respondent’s UK affiliate but changed to the Irish affiliate in January 2021. In April 2021 Complainant became sick and unable to work. For various reasons he did not have the requisite PRSI entitlements, and the Respondent tried to assist him while he engaged with the Department of Social Protection. These issues did not just affect the Complainant, but a wider group of employees and the Respondent found itself in a position where it was going between the Department and its employees, primarily due to a failure of the Department to renew special social insurance provisions related to intra EU truck driving.

The Respondent lent the Complainant money, but the Complainant kept requesting more and was argumentative towards management. Throughout his period of sick leave, the Complainant was not cooperating with the company and failed to produce medical certificates. 

The Complainant sent a letter to a series of clients alleging that the company had no insurance, this was misleading and damaging to the company’s reputation. They lost a major client over this incident.

For these reasons the Complainant was dismissed.

The Complainant provided evidence under affirmation. He submitted medical certificates to the Respondent. They had a significant issue with getting paid sick leave and tried to engage with the Department and the Respondent. He admitted to sending a letter to clients but only because he discovered that other drivers might be in the same situation as him.

In March 2022 the Complainant received a letter dismissing him. He had no prior warning that this was coming. The letter asserted that not only was he dismissed but that the dismissal would be backdated and would take effect from May 2021.  

The Complainant believes he would be able to work if he could get a lump sum to obtain the necessary medical treatment, enabling him to work.

Unfair Dismissals Act

It is clear that the Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act. The Respondent’s attempts to backdate his dismissal in no way alters his length of service.

Section 6 of the Unfair Dismissals Act outlines that any dismissal is an unfair dismissal contrary to the act, unless there are substantial grounds justifying the dismissal. It is for the Respondent to prove that such grounds exist and that they were the cause of the dismissal.

The Respondent argues they were entitled to dismiss the Complainant as Subsection 4 (b) provides that a dismissal shall not be an unfair dismissal if it results wholly or mainly from the conduct of the employee.

In examining the reasons given for the Respondent’s decision to dismiss, the approach I am required to take is well established. As outlined in British Leyland v Swift and endorsed in this jurisdiction in Bank of Ireland v Reilly, my role is not to take over the role of the Respondent consider whether in my view that the conduct of the Complainant ought to have resulted in his dismissal, but rather whether a reasonable employer might have reasonably dismissed him for the reasons given. An element of discretion is given to the Respondent in this approach by recognising that a band of reasonableness exists within which one employer might reasonably decide to dismiss but another might reasonably decide not to

Section 6 requires the Respondent to demonstrate not just that “substantial grounds” exist which establish that the dismissal was within the “band of reasonableness” but that the dismissal occurred because of those “substantial grounds.” As such a key issue to be determined in any Unfair Dismissal Act case is whether the “substantial grounds” put forward by the Respondent were properly arrived at, that is arrived at following a fair process.

No such process occurred. The reason given for the Complainant’s dismissal on the letter dismissing was an alleged failure to provide sick certificates. The Complainant disputes this and has argued that he kept the Respondent up to date via WhatsApp.

The Complainant was not offered an opportunity to respond to the Respondent’s assertion that he had not submitted sick certs. The Respondent also accepts that there was another reason for the Complainant’s dismissal. This was the letter he sent to his employer’s clients. This reason was not even mentioned in the letter dismissing the Complainant.

There was no proper or fair process followed by the Respondent to determine these issues. The Complainant was never put on notice of these issues or that they might be the basis of his dismissal or that he was in any way at risk of dismissal. In these circumstances the Complainant’s dismissal was in breach of the Unfair Dismissals Act.

Financial Loss

Section 7 of the Unfair Dismissals Act provides that I may make an award based on the financial loss attributable to the dismissal.

This is defined as to include “any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;”

The Complainant provided limited to no evidence as to the loss arising from the dismissal. While he did suggest that he had been looking for work he also contradicted this by saying he was not fit for work and needed money for further medical treatment before he could take up employment.

In the circumstances I am not satisfied that the Complainant has any financial loss arising from the dismissal. He was unable to work before the dismissal and received no renumeration. This situation has continued after the dismissal.

In the circumstances I am restricted by Section 7.1.C (ii). That is where the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

Having regard to all the circumstances I am satisfied that a payment of approximately 4 weeks salary or €3000 is warranted.

Organisation of Working Time Act

As outlined above I am restricted in hearing complaints which occurred 6 months before the date the complaint was submitted. Having reviewed the Complainant submissions and in particular the reasons given for the late submission I am satisfied that there are not reasonable grounds to extend the time limits proscribed.

CA-00053050-001

The complaint is well founded. I direct the Respondent to pay the Complainant €3000.

CA-00053050-002

The complaint is not well founded.

CA-00053050-003

The complaint is not well founded.