Complainant

Respondent

Parties

Veacelav  Gafton

Amira Trans Ltd

Complainant

Respondent

Representatives

Self-Represented

Company Managers

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-00055511-001

11/03/2023

The Complainant had been employed as a Lorry Driver by the Respondent Company. The Employment began on the 10th of May 2021 and finished on the 16th of February 2023.

The rate of Pay was stated bythe Complainant to have been a net of € 850 a week for 70-hour week. This was disputed bytheRespondent and stated to be approximately €500 basic plus tax free allowances that could vary depending on hours worked.

The Complainant gave an Oral testimony supported by extensive copy Text Messages, Working Time and Bank Records.

He had worked very diligently, without complaint, for the Respondent. Initially the Relationship was good.  He had worked very long, allegedly illegal hours, often slept in his truck as required and tolerated various mechanical issues with the vehicle, (especially coolant leaks and noxious chemical smells.) He had an issue with an occasion when illegal migrants were found in his trailer. He was completely unaware of how they had got on board and was completely innocent. This had been accepted by the Irish Police. He was reluctant to take EU originating trips after this and was also reluctant to go to Northern Ireland as his GPS did not work there, making finding of drop offs difficult. He had some difficulties with Transport/Planning Manager, Mr M, and things had got heated on a few occasions.

The attitude of the Employer had changed towards him following an issue over proper taillights on his vehicle (the Tractor Unit) in October 2022. The lights had been damaged in an accident in Dublin Port. He did not accept the Employer view that the issue was minor once a trailer was attached. He had taken a few days sick leave due to a severe cold and this had also annoyed the Employer.

In February 2023 he was informed by the Owner / Manager Mr C that there was “no more work” for him and he was let go.

There was no Appeal offered, no discussions of alternatives and other Drivers with much shorter service were kept on. He could easily have done a shorter week of 2/3 days, but this was never considered. It was his view that he was seen as a “difficult driver” due to his various quite reasonable complaints.

All told he was seen as “trouble”, and he was let go on this basis. There was no talk or procedures. It was completely Unfair.

The Respondent gave a detailed Oral Testimony supported by a brief statement and extensive Working Time records. The Respondent was the Owner Mr C but supported by the Manager/Administrator, Ms M.

The Respondent stated that they were a small Transport Company heavily reliant on a few major customers. The Transport/Haulage market was very difficult in late 2022/early 2023 with “vicious” competition among Hauliers for all business. In early 2023 they had lost a few major Accounts.  The Company was faced with making severe cutback to simply survive. In total 21% of all staff were let go. This had included 7 drivers including the Complainant. In the Complainant’s case a major account that had been lost represented nearly 40% of his work. In addition, it was an Account that was very close to the Complainant’s home base in Cahir. He was allowed to take his Vehicle home and start from Home the following day. The Company was based in Kildare and the Complainant lived and operated from Cahir, Co Tipperary.

The decision to choose which drivers to let go had been based on Geographical factors and Driver flexibility. LIFO was not a viable option in this context. From mid-2022 it was clear to the Respondent and their Managers that the Complainant was not happy with his job, he disliked Overnights in his Truck, (a necessary part of the business) was imposing restrictions of types of Trailers (especially EU originating Trailers for fear of Migrants) he would lift, was unrealistic in his views on Vehicle maintenance and was disputing the instructions of the Fleet Planer, Mr M. All told he was coming across as very inflexible in his approach to work. Taken with his remote Geographic location he had to be one of the drivers let go.

He was paid his two weeks’ notice period. In cross examination from the Complainant the Manager/Administrator, Ms M, agreed that here were other drivers with shorter service who had been kept on. There had never been a question of any Appeal, to the Employer Decision, being offered. They were a small Company struggling to survive and it was very regrettable, but seven drivers had to be let go to keep the business afloat.

There was nothing Unfair and LIFO or other options were simply not viable.

3:1       The Relevant Law

The relevant Law is the Unfair Dismissals Act ,1997 supported by the provisions of S.I. 146 of 2000 -Statutory code of Practice on Grievance and Disciplinary Procedures. There is also a most extensive body of Legal precedents. The overriding Legal Principles are those of Natural Justice which have to be seen to be followed at all times.

Section 1 of the UD Act, 1977 under Definitions defines Dismissal as

“ 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,

Section 6 of the UD Act,1977 provides

Unfair dismissal.

6

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Legal precedents as set out in Redmond on Dismissal Law, Bloomsbury, 2017 and Meenan, Employment Law, Round Hall, 2015 make the following points.

In a Dismissal situation the first point that must be considered is whether a Dismissal actually took place and then, if it was at the instigation of the Employer or if the Employee resigned – a Constructive Dismissal.

In all procedures that follow the Employee has to be given the full benefits of Natural Justice – he or she has to have a full impartial investigation, to be made aware of all charges or complaints against him, have a full opportunity to answer these charges, to have a decision made that is not tainted by other non-related issues and that is “reasonable”.  The maker of the Dismissal decision has to be as independent as possible and not an actor or participant in the scenario leading to the Dismissal.  An Appeal to an Independent Body has then to be offered. The Employee is expected to participate fully in all Employment Procedures involved unless there are particular and good reasons for not doing so.

All cases rest on their own facts and particular local circumstances and I will now look at these.

3:2        Review of Evidence presented

In this Unfair Dismissals case much rested on the Oral testimony of the Parties.  Much of the Written Material was related more directly to the parallel Working time case Adj-00046795 (Organisation of Working Time Act, 1997)

The Respondent Managers, Ms M, supported by the Owner Manager, Mr C, were clear cut in their evidence. The Complainant had been dismissed from a small Company facing a severe financial prospect. The grounds were a perceived Employer view of a lack of flexibility/work attitude from the Complainant and his remote Geographic location. It was accepted that there were other Workers with shorter service and that no Appeal/Discussion had been offered.

The Respondent was a business in a survival mode in early 2023 and letting seven drivers and some office staff go was essential in their view. Survival, in the Respondent view, was the primary issue and tough decisions, essentially regardless of Employment law “niceties” had to be made.

In his Testimony the Worker/Complainant had listed a lot of issues that he had raised with the Respondent Employer ranging from alleged Working Hours irregularities to issues with the planner/Manager, Mr M, to Defective Vehicles and unreasonable Employer Demands to Sleep in the Truck. (It has to be noted that most large HGVs have sleeping compartments and sleeping in the truck is quite normal). In cross examination these were discussed but did not appear to be anything extraordinary for a professional trucking Driver.

3:3       Adjudication view.

As stated above in the Legal paragraph (3:1) an employee is absolutely entitled to Natural Justice -this means a proper investigation, all the Employer complaints set out for him, an independent Investigation, and a Disciplinary Hearing by a party unconnected to the Investigation with an Appeal Hearing by a non-involved independent Person against any Employer decision.

In this case there was a very strong employer business case for staff cutbacks. Ms M and Mr C were detailed and convincing in their Testimony.

Seven drivers were let go. However, it appeared that no Employment Law procedures were followed. This was most regrettable as the result, following Procedures, might well have been the same end situation.

However, no matter how compelling the Employer/Respondent case is, normal Employment Law procedures cannot be shortcut. In this case the Employer choose, it appeared, to simply make a short cut decision. A finding of Unfair Dismissal, in favour of the Complainant, is accordingly inevitable.

Unfair Dismissal, Breach of Procedures.