Worker

Employer

Anonymised Parties

A Driver

A Courier Company

Representatives

The Driver’s wife

Ellen Walsh Peninsula

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00059792-001

13/12/2022

I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings.

The worker making this referral (“the Driver”) was accompanied/represented by his wife. The Driver was employed by the Respondent “the Courier Company” as a driver from the 23rd of June 2022 until the 12th of December 2022. His weekly gross pay was €752.75 and net pay was €605.61. He was dismissed by letter dated the 12th of December 2022. The reason for the dismissal stated in the letter was his for failure to demonstrate his skills and ability to perform his role. The Driver contended that the reason for his dismissal was because he had an accident arising from which he made a personal injury claim. After he was dismissed, he said that he tried to appeal his dismissal by telephoning the number provided on his letter of dismissal dated the 12th of December 2022 and looking to speak to the individual named in that letter but when he called the number a woman answered who said that she did not know the person who he was looking to speak to. For this reason, he did not pursue the appeal. The Driver said that he was taken by surprise by the dismissal, and he claimed that he had not been given any prior warning or notice that there were issues with his performance. After the dismissal he was out of work for a period of less than one month and has secured another job from the 3rd of January 2023 which he still holds. His losses arising from the dismissal were limited to the period between his dismissal and securing the alternative employment less the payment in lieu of notice received from the employer. 

The Courier Company was represented by Peninsula. The managing Director and the Transport Manager were also present.

The Driver was dismissed for excessive absences from work. Of the 124 working days throughout his employment he was absent for 46 of those days, representing just under 40%. The problem was exacerbated by the fact that the Driver frequently called in sick or unavailable at the last minute which created operational difficulties for the Company trying to cover the Driver’s work. The Company denied that the Driver’s accident had anything whatsoever to do with the decision to dismiss him which decision was based solely on his excessive absenteeism which frequently arose with very short or no notice to the Company as to his unavailability for work. The Company could not understand how the Driver had made the call that he said that he made or how he had been told that the person he was to speak to was unknown to the woman (who was not identified by the Driver) who allegedly answered the call. The Company made the point that in any event the appeal was to be made in writing and this was clearly stated in the letter of dismissal and the Driver failed to put any appeal in writing.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

It was acknowledged by the Company that the Driver was facing challenges at home as one of his children has health issues. Nonetheless I accept the Driver had excessive absences which apart from representing a fundamental failure to provide regular service, frequently caused disruption to the Company’s business when the Driver called at very short notice to say that he would not be coming to work. I accept that the dismissal was not related to the Driver’s accident as was suggested by the Driver. I also accept the Company’s submission that the Driver was frequently informally warned about the issue and that he was given several chances to address the issue but that he failed to do so. However the warnings were not put in writing to make it clear that the employment would be terminated if further issues arose, nor when the employment was terminated was any process followed whereby the Driver was given an opportunity to explain his situation and/or to apologise or to offer firm promises of improvements in his attendance. For this reason, I take the view that the dismissal although based on understandable frustration on the part of the Company was procedurally flawed and for that reason unfair. In relation to the issue of the appeal, I am of the view that the Driver did not pursue this with any degree of commitment. He did not put the appeal in writing as he was directed to do in the letter of dismissal dated the 12th of December 2023 and thus it is immaterial whether he made a telephone call or not, as more than a telephone call would have been required in any event.

Having taken the view that the dismissal was unfair I also consider that that the Driver by his own conduct contributed significantly to this dismissal. 

Taking all of the foregoing into account, I recommend that the Company pay to the Driver one week’s pay by way of compensation, that is to say the sum of €605.61 in settlement of the dispute.

Unfair Dismissal – contributory conduct – failure to provide regular service – Industrial Relations Acts