Complainant

Respondent

Parties

Alexandru Sirbu

Derby Transport Limited

Complainant

Respondent

Anonymised Parties

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Representatives

Seamus Collins BL instructed by Melissa Wynne of Sean Ormonde & Co. Solicitors

 Ian Derby

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-00055357-001

02/03/2023

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

CA-00055357-002

02/03/2023

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

CA-00055357-003

02/03/2023

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

CA-00055357-004

02/03/2023

The Complainant’s employment commenced on the 6th July 2020 and ceased on the 15th February 2023. The Complainant submitted his complaints to the WRC on the 2nd March 2023.

At the hearing on the 9th May 2023 the Complainant withdrew his complaints under the Organisation of Working Time Act 1997 and the Unfair Dismissals Act 1977 (as amended). 

The Complainant claimed that he was subjected to victimisation by the Respondent and that he did not receive his notice entitlements when his employment ended on the 15th February 2023. The Complainant’s complaints were disputed by the Respondent.

There were attempts by the Respondent to rely on hearsay evidence and this has not been taken into consideration in arriving at this decision.

CA-00055357-001 – Employment Equality Acts 1998 (as amended)

The Complainant submitted a complaint to the WRC under the Employment Equality Act 1998 (as amended) on the 12th July 2022. The Complainant gave evidence that by letter dated the 12th January 2023 he received notification of the first hearing date on the 14th February 2023.

On the 30th January 2023 the Respondent’s Representative telephoned the Complainant and informed him that the Complainant would have to take annual leave or unpaid leave on the 14th February 2023 if he wished to attend the hearing, which he duly did. According to the Complainant the Respondent’s Representative advised him that in his view the WRC hearing was a waste of time and that he would not be attending.

The Complainant stated that on the 2nd February 2023 he received a written warning for alleged continued late attendance and failing to following company procedures, the contents of which he took issue with.

The Complainant had a telephone conversation with the Respondent’s Representative on the  6th February 2023. The Complainant gave evidence that the Respondent’s Representative threatened him and said he was coming after him for opening up internal company information to the WRC regarding other HGV drivers.

On the 13th February 2023 the Transport Manager asked the Complainant to return his truck to the yard instead of bringing it home because another driver would be driving the truck the following day.

According to the Complainant his truck went home with him in the evening and there was always a spare truck in the yard which could have been used by the other driver. He found the request to be unusual and had a bad feeling therefore he took his personal belongings out of the truck on the 13th February 2023.

The Complainant attended the remote hearing of his complaints under the Payment of Wages Act 1991 and the Employment Equality Act 1998 (as amended) on the 14th February 2023. In the normal course he would have received his schedule for the following day some time on the 14th February 2023 however no message was received by him therefore he sent a WhatsApp message to the Respondent’s Representative stating “I’m off tomorrow or unemployed?”. He did not receive a reply so he sent a further WhatsApp message to the Respondent’s Representative on the morning of the 15th February 2023 stating “I need an answer about my employment”.

The Complainant gave evidence that the Respondent’s Representative telephoned him on the 15th February 2023 and told him that he was no longer employed by the Respondent and he was not to contact the Respondent again because he had taken his belongings out of the truck. The Complainant stated that it was a short conversation.

The Complainant stated that he emailed the Respondent asking for the reasons why he was dismissed however he never received a reply.

The Complainant commenced employment with a new employer on the 3rd March 2023 and did not suffer any loss of wages.

Under cross examination the Complainant denied resigning from his employment with the Respondent. When it was put to him that the Transport Manager was annual leave at the time and that it was an officer worker who instructed him to leave his truck in the yard on the evening of the 13th February 2023 the Complainant stated in evidence that he would have never resigned to an office worker and a yard man and that he informed the Respondent’s Representative on the 15th February 2023 that he wanted to continue working for the Respondent. He stated that he cleaned out his truck because he did not want the other driver using his bedding and pillows or his other personal belongings.

CA-00055357-002 – Organisation of Working Time Act 1997 – This Complainant was withdrawn at the hearing.

CA-00055357-003 – Unfair Dismissals Act 1977 (as amended) – This Complainant was withdrawn at the hearing.

CA-00055357-004 – Minimum Notice and Terms of Employment Act 1973

The Complainant commenced employment with the Respondent on the 6th July 2020. The Complainant stated that he did not receive his notice entitlements when his employment ended on the 15th February 2023.

CA-00055357-001 – Employment Equality Acts 1998 (as amended)

The Respondent’s Representative gave evidence on behalf of the Respondent. 

He stated that prior to the 12th July 2022 the Complainant had never raised a complaint of discrimination with the Respondent. The Respondent received the notification that the Complainant had submitted complaints to the WRC under the Payments of Wages Act 1991 and the Employment Equality Act 1998 (ADJ-00040395) and the Complainant continued in employment without raising any complaints of discrimination.

By letter dated the 12th January 2023 the Respondent was notified of the hearing date in respect of the complaints under ADJ-00040395.

The Respondent’s representative accepted that he informed the Complainant on the 30th January 2023 that he would not be attending the WRC hearing on the 14th February 2023 in respect of ADJ-00040395, however he stated that on the 7th February 2023 he changed his mind and decided that he would attend the hearing.

The Respondent’s Representative accepted that he was unhappy that as part of the Complainant’s complaints he was making allegations regarding the terms and conditions of other drivers. The Respondent employed 25 HGV drivers and the Respondent’s Representative was of the view that the Complainant’s complaints should have been confined to his own grievances and that he should not have brought other employees’ personal business into his complaints.

The Respondent’s Representative gave evidence that the Complainant was incorrect when he stated that the Transport Manager rang him and asked him to bring his truck to the Dunshaughlin Depot on the 13th February 2023. The Transport Manager was on annual leave at the time and it was an officer worker who advised the Complainant to leave the truck in Dunshaughlin as it was going to be used by another driver on the 14th February 2023.

The Respondent’s Representative stated that the Complainant was never asked to clear out his truck on the 13th February 2023. According to the Respondent’s Representative the Complainant took every piece of his belongings from the truck which was entirely unnecessary. The Respondent’s Representative denied that this was the first occasion on which the Complainant was requested to return his truck to the yard or that there was a “spare” truck in the yard which the fellow worker could have used. The spare truck was not on the road because it was not insured.

The Respondent’s Representative stated that the Respondent had no intention of dismissing the Complainant and that the Complainant resigned from his employment with the Respondent making the resignation clear to two employees of the Respondent in the yard on the 13th February 2023.

The Respondent’s Representative stated that he was not made aware of the event of the previous day until the remote WRC hearing ended on the 14th February 2023.

The Respondent’s Representative gave evidence that he had no contact with the Complainant on the 13th February 2023, that he attended the hearing before the WRC on the 14th February 2023 and that on the 15th February 2023 he rang the Complainant and informed him that he accepted the Complainant’s resignation.

Under cross-examination the Respondent’s Representative denied that he informed the Complainant on the 15th February 2023 that he had no more work for him. He acknowledged that he received correspondence from the Complainant after their telephone conversation on the 15th February 2023 but stated that it contained lies and therefore he did not respond to it. He confirmed that at no time did he telephone the Complainant and inform him that he was dismissed from his employment with the Respondent. The Respondent’s Representative stated that as far as the Respondent was concerned the Complainant had resigned from his employment and it was happy to accept the resignation in circumstances where the Complainant had made allegations against the Respondent, which the Respondent denied, regarding the terms and conditions of other drivers.    

CA-00055357-004 – Minimum Notice and Terms of Employment Act 1973

The Respondent submitted that the Complainant resigned and is not entitled to notice.

CA-00055357-001 – Employment Equality Act 1998 (as amended)

The Law

Victimisation is defined by section 74(2) of the Employment Equality Act 1998 (as amended) (hereinafter referred to as “the Act”) as follows: -

“74(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

In the case of Tom Barrett v. The Department of Defence EDA1017 the Labour Court set out the three components which must be present for a claim of victimisation under section 74(2) of the Act to be made out. It stated that (i) the complainant must have taken action of the type referred to in paragraphs (a) to (g) of section 74(2) of the Act – what the Labour Court terms “a protected act”, (ii) the complainant must be subjected to adverse treatment by his or her employer and (iii) the adverse treatment must be in reaction to the protected act having been taken by the complainant.

It is apparent from the above that there must be a detrimental effect on the Complainant which is caused by him having undertaken a protected act of a type referred to above.

Section 85A of the Act refers to the burden of proof that rests upon a complainant. It is incumbent upon a complainant to establish facts from which discrimination, and in the instance case victimisation, may be inferred and only then does the burden shift to the respondent.

The burden of proof was considered in the case of A Female Employee v. A Candle Production Company DEC-E2006-035 wherein the Equality Officer stated that:

“The first issue for consideration… is whether the complainant in the present case has established a prima facia case of victimisation. I must therefore consider whether the complainant has adduced evidence to show that she was penalised and secondly, whether the evidence indicates that the pensalisation was solely or mainly occasioned by the complainant having in good faith opposed lawful means an act which is unlawful under the Employment Equality Act.”

The Complainant claimed that he was dismissed from his employment on the 15th February 2023 for having submitted an earlier complaint of discrimination to the WRC on the 12th July 2022 which came on for hearing before the WRC on the 14th February 2023 and that the said dismissal was a victimisatory dismissal.

The Respondent disputed the Complainant’s claim of victimisation and contended that he did not undertake any of the “protected acts” within the meaning of section 74(2) of the Act.

In the instant case I must decide, in the first instance, whether or not the Complainant took an action that could be regarded as a “protected act” within the meaning of section 74(2) of the Act.

At the outset of the hearing the Complainant’s Counsel referred to section 74(2)(a) of the Act and submitted that the Complainant was victimised for making a complaint of discrimination to his employer. In his concluding submissions he referred to the bringing of proceedings under the Act as being the protected act and therefore it is necessary to also consider section 74(2)(b) of the Act.

It is clear from the wording of “victimisation” in the Act that a complaint for victimisation must relate to a complaint under the Act and not a general complaint of victimisation.

On the 12th July 2022 the Complainant submitted a complaint form to the WRC. Whilst the Complainant ticked the box on the WRC complaint form stating that his complaint fell under “Discrimination/Equality/Equal Status” he did not claim that he had been discriminated against by his employer. Instead he claimed that “[a]n employment agreement contains a provision which is discriminatory” however he did not identify the employment agreement which was alleged to contain a discriminatory provision. The Complainant did not state the relevant discriminatory ground(s), how the Respondent was alleged to have treated him unlawfully by discriminating against him or the most recent date of discrimination. In the narrative on the WRC complaint form the Complainant stated: “[n]ot sure under what section my issue has to go but this is the problem Some of his employers receiving Company phones and Phone bills are payed by company, the other part of drivers have to use their personal phones, emails, printers/scanners internet, cameras and so on… to keep work going…. When raised this question to him, Ian didn’t response with anything to us. Hoping probably we will keep the work going… its disgraceful what’s going happening in this company.”

On the 6th February 2023 the Complained emailed the WRC setting out further details in relation to his two complaints under ADJ-00040395. He described his complaint under the Payment of Wages Act 1991 as being a complaint in relations to “wages” and he set out in details the nature of his complaint under the 1991 Act as it related to him and “90% “ of the other drivers. The Complainant described his complaint under the Act as being the “second part of my complaint”. He made no reference to discrimination and in the narrative under the heading “second part of my complaint” he stated, inter alia, that the Respondent’s drivers were required to use their own sim cards and mobile telephones to carry out their work. The Complainant was aggrieved that his mobile phone broke while he was coupling a trailer and stated that he raised this with the Respondent however his mobile telephone was not replaced.

At the hearing before the WRC on the 14th February 2023 it was accepted by the Complainant that either prior to or subsequent to submitting his complaint form to the WRC on the 12th July 2022 he did not make a complaint of discrimination to the Respondent. Furthermore, the Complainant acknowledged that his complaints related to the unlawful deduction of wages and the fact that the expenses he incurred during the course of his employment were not paid for by the Respondent. He accepted that any difference in treatment regarding the payment of expenses by the Respondent did not arise as a result of one of the nine discriminatory grounds and that his claim under the Act was misconceived on the basis that he did not have a claim under any of the headings governed by the Act.

At the hearing on the 9th May 2023 the Complainant’s Counsel formally withdrew the complaint under the Act.

Taking account of the evidence of the Complainant and the witness on behalf of the Respondent and the oral submissions and documentation presented on behalf of the parties and the legal authorities cited above I find that the Complainant has failed to establish that he invoked or undertook to invoke any of the protected acts within the meaning of section 74(2) of the Act. I find that the Complainant’s complaint is a general complaint of relating to his terms and conditions of employment and is not a complaint for victimisation under the Act.

Accordingly, I find that the Complainant has failed to establish facts from which it could be inferred that he was subjected to victimisation within the meaning of Section 74(2) of the Acts in the within case. 

CA-00055357-002 – Organisation of Working Time Act 1997 - This Complainant was withdrawn at the hearing.

CA-00055357-003 – Unfair Dismissals Act 1977 (as amended) - This Complainant was withdrawn at the hearing.

CA-00055357-004 – Minimum Notice and Terms of Employment Act 1973

Section 4 of the Minimum Notice and Terms of Employment Act 1973 states:

4.—(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

The Complainant commenced employment with the Respondent on the 6th July 2020. The Complainant stated in evidence at the hearing that he did not receive his notice entitlement, namely two week's pay, when his employment ended on the 15th February 2023.

Although the Respondent gave evidence at the hearing that the Complainant resigned from his employment and that therefore he was not entitled to notice pay, the Respondent’s office worker and yard man who were witnesses to the Complainant’s alleged resignation did not attend the hearing to give evidence on behalf of the Respondent. In the absence of evidence contradicting the version of events as presented by the Complainant I find that the Respondent terminated the Complainant’s contract of employment without notice and that this complaint is well founded. The Complainant’s average net weekly pay at the date of the termination of his contract of employment was €866.00.

CA-00055357-001 – Employment Equality Act 1998 (as amended) - For the reasons set out above I find that this complaint is not well founded.

CA-00055357-002 – This Complainant was withdrawn at the hearing.

CA-00055357-003 – This Complainant was withdrawn at the hearing.

CA-00055357-004 – Minimum Notice and Terms of Employment Act 1973 - For the reasons set out above I find that this complaint is well founded and direct the Respondent to make a payment of €1,732 to the Complainant in respect of the breach of the Act.