Complainant

Respondent

Parties

Colin Connolly

a

Representatives

Self-represented

Séamus Phibbs, Owner

Act

Complaint Reference No.

Date of Receipt

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

CA-00055198-001

20/02/2023

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

CA-00055198-002

20/02/2023

The Complainant worked as a driver for the Respondent, a road transport company. The Complainant contends that he was unfairly dismissed by the Respondent.  He also asserts that he did not receive his breaks.

The Respondent rejects the complaints.

The Transport Manager said that he rang the Complainant on Friday 22 July 2022 and asked him to bring two machines into the city centre.  He got a mouthful of abuse from the Complainant who said that he was going to see his father.  That was the first he heard about the Complainant having to go to see his father.  Another driver did the delivery and was back in the yard at 16.45.

At the hearing, the Transport Manager played a number of recordings from the Respondent’s call recording system.  He also exhibited an extract from the Respondent’s call logs showing phone calls to and from the Complainant on 21 July 2022.

The first recording played at the hearing was of phone call from Transport Manager to the Complaint which took place at 15.13. In this call, the Transport Manager asked the Complainant to make a delivery to Molesworth Street that evening.  The Complainant refused to do the delivery because the traffic would be very heavy, and his father was going into the hospice at 6.30pm.

The second recording played at the hearing was of a phone call from the Complainant to the Transport Manager at 15.15 to say that Molesworth Street was right down on the Green, and it would be madness to go there on a Friday evening.

The third recording played at the hearing was of a phone call from the Complainant to the Transport Manager at 15.24 clarifying the Molesworth Street was near St Stephen’s Green.

The fourth recording played at the hearing was of a phone call from the Complainant to the Transport Manager at 15.29 to say that his father was going into the hospice for a week and that he wouldn’t be able to see him while he was in the hospice.  He needed to be home at 18.30 so that he could see his father before he went in.  The Complainant then complained about the heavy Friday traffic and said that he was not going into town.  The Transport Manager asked the Complainant if he was going in or not.  The Complainant replied, “don’t you know I am going to have to”.

The Transport Manager thought that the Complainant was going to do the delivery, but then he heard that the Complainant had been seen walking across a nearby bridge on his way home.  The Transport Manager rang the Complainant, but he did not answer.

The Owner said that he had been in the yard on 22 July 2022 and told the Complainant that if he had to go home, then to go home.  The Owner said that the Complainant constantly refused to carry out deliveries that were assigned to him. In the years the Complainant had been working for the Respondent, he had walked out several times.  The Respondent would always take him back as it was very difficult to recruit drivers – they were desperate for drivers and could not afford to let any driver go.  The Owner said that the Complainant had also left early on 47 different occasions and had been granted 22 days of compassionate leave. The Owner said that he was aware that the Complainant was driving a lorry most nights for another company when working for the Respondent.

The Transport Manager said that the Complainant didn’t come to work on the following Monday 25 July 2022, and he tried to ring him 2 or 3 times on Monday and Tuesday, but the Complainant’s phone was turned off. 

The Transport Manger sent a letter to the Complainant on 26 July 2022 in which he wrote:

“Dear Colin

Following on from Friday (22/07/20233) when you failed to complete tasks given to you by your manager and subsequently failed to report to work either yesterday or today.  I feel it is only fair to advise you at this point that you will face formal disciplinary action the details of which I will furnish to you upon your return to work.

In line with our company handbook all absences must be reported to your supervisor before the start of business or as close to.  You are now deemed to be absent without authorised leave.

Failure to contact the office by close of business on Friday 29th July and we will assume that you are terminating your employment with Phibbstrans.

If you have any queries regarding the contents of this letter then it is important to you contact me to discuss them.

Yours sincerely

Ray Behan

Phibbstrans”

The Complainant did not respond to the Transport Manager’s letter. The Transport Manager said that he was aware from neighbours that the Complainant had a new job, so he felt that there was no need to follow-up.

The Respondent did not hear anything from the Complainant until the Complainant contacted his supervisor, the Transport Planner, in the first week of August 2022 looking for his stuff out of the lorry.  The Transport Planner asked the Complainant for his phone and diesel card.  The Complainant said that he would drop them up, but he did not.

On 26 September 2022, the Complainant contacted the Respondent looking for a letter for Social Welfare.  The Respondent did not understand what the Complainant was looking for and wrote to him on the same day seeking clarification.

The Complainant submits that he was asked to go back into Dublin city centre to do a delivery on Friday 22 July 2022.  He told the Transport Manager that he had to go home as his father was going into the hospice that evening.  The Complainant said that he got a call to leave his van and go home.  The Complainant submits that he left his van back in the yard after he was told by the Owner to go home.  The Complainant asserts that he did not have time to do the delivery that the Respondent wanted him to do as he wanted to see his father before he went into the hospice for a week, during which time he would not be allowed to visit him.

The Complainant said that he went home at 16.05 on Friday 21 July 2022.  He believed that he had been dismissed.

He tried to phone the Respondent the following Monday and Tuesday, but his phone was cut off.

The Complainant referred to the letter which the Respondent said it had sent to him on 26 July 2022.  He confirmed that the letter was posted to his mother’s address which was his home address, but he didn’t get it because he was staying elsewhere at the time.

The Law

Section 1 of the Unfair Dismissals Act provides the following definition of dismissal:

“dismissal”, in relation to an employee, means—

“(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer.”

Was the Complainant dismissed by the Respondent?

As the fact of dismissal is in dispute between the parties, the first matter for me to address is whether the Complainant was dismissed by the Respondent. 

A key area of conflict in this case relates to matters that occurred on the afternoon of Friday 22 July 2022.  The Complainant contends that he was dismissed when the Owner told him to go home.  The Owner, however, contends that while he told the Complainant to go home, he did not dismiss him.

At the hearing, the Owner asserted that the Complainant had walked out before and had left early on 47 separate occasions.  This was not disputed by the Complainant.

The Complainant’s behaviour on Friday 22 July 2022, seemed to be part of a pattern whereby he would refuse to complete a task that was assigned to him, he would walk off the job and return the next day.  He was never dismissed for his behaviour as the Respondent was short of drivers and didn’t want to let him go.

It would appear to me that when the Owner told the Complainant to go home on Friday 22 July 2022, he was just accepting the inevitable – the Complaint did not like what he was asked to do so he was going to walk off the job as he done on my occasions in the past.

I accept the Owner’s assertion that he was so desperate for truck drivers that he would not have dismissed the Complainant for his behaviour on 22 July 2022.  To my mind, the fact that the Complainant had not been dismissed for the 47 times when he had previously left early supports the Owner’s assertion.

The Transport Manager tried to contact the Complainant on the Monday and Tuesday following the 22 July 2022.  Only when he was unsuccessful, did he write to the Complainant on 26 July 2022, at the address the Complainant had provided, to inform the Complainant that he would face disciplinary procedures when he returned to work.  There was no reference to the Complainant’s dismissal in the Transport Manager’s letter – the purpose of the letter appeared to give forewarning to the Complainant of what was likely to happen when he returned to work.

Given that the Transport Manager issued the Complainant with a warning letter and not a letter of dismissal and that the wording of the warning letter was indicative of an ongoing relationship rather than a relationship that has been terminated, I find that this evidence supports the Respondent’s position that the Complainant was not dismissed on 22 July 2022.

Findings

From the totality of evidence that was put before me at the hearing, it appears to me that at no time on or after 22 July 2022, the date of the incident which led to this referral, did the Respondent, in its dealings with the Complainant, act like an employer who had dismissed an employee.  Accordingly, on the balance of probabilities, I find that the Complainant was not dismissed by the Respondent on 22 July 2022 as he has alleged.

I find that this complaint is not well founded.

The Complainant submits that he did not get his breaks.  The Complainant said that he had to take his breaks when he was offloading and reloading.

The Respondent rejects the complaint.

The Transport Manager said that the Complainant was employed to drive artic and rigid trucks.  The Transport Manager submitted that truck drivers manage their own time.  The Transport Manager asserted that the Complainant was not told to take his breaks when he was offloading and reloading.

The Transport Manager said that the Respondent’s drivers use tachograph cards to record driving, rest and activity information.  The Transport Manager said that the Respondent’s drivers’ cards were reviewed more than once by the Road Safety Authority (RSA) and the Labour Inspectorate during the relevant period and no issues were raised.

The Complaint has submitted a complaint under the Organisation of Working Time Act 1997, as amended (the Act), asserting that he did not get breaks when he worked for the Respondent.  Section 12 of the Act covers rests and intervals at work.  The first matter for me to decide, therefore, is if the Complainant is covered by section 12 of the Act.

Regulation 4 of the Organisation of Working Time (Non-Application of Certain Provisions to Persons Performing Mobile Road Transport Activities) Regulations 2015 provides that sections 11, 12, 13, 15 and 16 of the Act do not apply to persons performing mobile road transport activities as defined in Directive 2002/15/EC.

The RSA Guide to the Road Transport Working Time Directive (Directive 2002/15/EC) provides the following definition of a mobile worker:

“A mobile worker is any worker who is part of the travelling staff of a company or business that operates transport services:

·        for passengers or goods, for hire or reward, or

·        to carry out the company’s own business. This generally means drivers and crew members or any other travelling staff and includes trainees and apprentices.”

The RSA Guide further clarifies that the Directive “applies to all mobile workers and self-employed drivers involved in road transport activities covered by the EU Rules on drivers Hours, or by the European agreement concerning the work of crews of vehicles engaged in international road transport (AETR). Generally, this means workers – that is, drivers, crew, other travelling staff and self-employed workers – who work in vehicles required to be fitted with tachographs.”

From the evidence put forward at the hearing, it is clear to me that the Complainant fulfils the above requirements as he was part of the travelling staff of a company that operates transport services, and he worked in vehicles which were required to be fitted with a tachograph.

I find, therefore, that in accordance with reg 4 of the Organisation of Working Time (Non-Application of Certain Provisions to Persons Performing Mobile Road Transport Activities) Regulations 2015, the Complainant is not covered by the provisions of section 12 of the Act.  Accordingly, I find that this complaint is not well founded.

In conclusion and having regard to all the circumstances of the complaint, I declare that this complaint is not well founded.

Doubt as to dismissal – professional drivers not covered by section 12 OWT