Complainant

Respondent

Parties

Tomasz Godlejewski

Prince And Sons Expess Transport Limited

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015

CA-00054906-001

07/02/2023

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

CA-00054906-002

07/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00054906-003

07/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00054906-004

07/02/2023

The Complainant worked for the Respondent as a truck driver from the 2nd of September 2019  until his dismissal in November 2022.

The Complainant alleges he was unfairly dismissed and that he received no contract of employment. The Respondent disputes the claims.

The Complainant attended the hearing and provided evidence under oath with the assistance of a translator.

He made written submissions before and after the hearing.

Where relevant, I have referred to the Complainant’s evidence in the Findings and Conclusions section of this decision.

Mr Victor Rudjka attended the hearing and gave evidence and made submissions on behalf of the Respondent. The Respondent emailed in further documentation after the hearing.

Where relevant, I have referred to the Respondent’s evidence in the Findings and Conclusions section of this decision.

CA-00054906-001 Industrial Relations (Amendment) Act, 2015

The Complainant identified no SEO that applied to his employment relationship.

CA-00054906-003 Redundancy Payments Act, 1967

Neither party submits that the Complainant was made redundant.

CA-00054906-002 Unfair Dismissals Act 1977

Summary of the Respondent’s Evidence

Mr Victor Rudjka, the Complainant’s Supervisor gave evidence regarding his dismissal. 

The Respondent position is that they dismissed the Complainant because they believed he was a threat to others. He was driving a faulty vehicle and had been given warnings for this in the past.

The Respondent is a family company that deals with transportation of concrete. They own and operate four trucks.

The trucks are constantly inspected for safety and are serviced every three months. They are all 2019 and 2020 models. A Renault garage services them and asses them technically. These trucks specifically manufactured for transportation of concrete.

Before drivers leave in the morning, they are required to fill out a report assessing the truck.  Each driver is obliged to do this do this routine. At the end of the shift drivers are required to fill in another report.

There had been incidences of drivers bypassing the checks and driving on underinflated tyres. This is extremely dangerous. Every one to two weeks management would do assessments and check that the drivers were filling in the reports.

The trucks are loaded at a Roadstone plant. They have special ramps to slow down the vehicles in the approach to their loading areas.  If a driver goes on a on high speed over these ramps then suspension springs get damaged. A suspension spring breaking could cause a huge amount of damage.  

The truck that the Complainant drove had these sort of faults. It happened a few times. Management would discover the faults and bring the vehicle into to service and this issue would repeat. Warnings have been issued on a number of occasions as well as directions to drive slow in the city.

The Complainant was dismissed because the Respondent discovered three of the four springs on his vehicle were broken and he had continued to drive with only one of them still functional. He could have damaged the axel and caused a crash. They had told him not to leave the depot with a damaged vehicle but left anyway. His reply was that he’s a driver and not obliged to know all of this.

This time the company owner decided to dismiss him. They then tried to come to an agreement about outstanding amounts owed to the Complainant but they failed to come to terms.

The Complainant was fired as he was irresponsible and a threat. This was during a severe driver shortage. They didn’t want to let him go.

Summary of the Complainant’s Evidence

The Complainant maintains that he was driving this truck as normal. He did the precheck as always. It was dark so he couldn’t properly inspect the vehicle. Once he got out on the road he could feel something not right with truck. He then noticed a further issue after he had received his load.

The Complainant texted the Respondent to let them know something wrong with the truck. He was told go to the service mechanic. He went emptied the concrete but then didn’t go to the service mechanic. He doesn’t remember why. He completed his shift and left.

The owner then rang him and told him to give to Mr Rudjka his diesel card and keys. He was dismissed and had no prior warning.

The Complainant got another job as a delivery driver 4 weeks later. He was paid the same as with the Respondent.

The Law

The Complainant has the requisite service to be covered by the protections afforded under the Unfair Dismissals Act.

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 a result of his conduct in damaging his vehicle and continuing to drive that vehicle while it was damaged.

Section 6 requires the Respondent to demonstrate not just that “substantial grounds” exist which justify the dismissal 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.

As the Labour Court set out in their decision in Panasov v Pottle Pig Farm UDD175 where a Respondent fails to properly investigate the facts on which the dismissal is based and in particular, does not allow the Complainant put forward their account of what occurred, the dismissal will be deemed to be unfair.

It is quite clear that the Respondent followed no process in this matter. The evidence of both parties was that the owner decided that the Complainant was behaving unsafely and damaging his vehicle in the manner he was driving it, so decided to dismiss him.

In the circumstances and considering that the burden of proof rests with the Respondent in this matter, the Complainant’s case must succeed.   

Redress

Section 7 of the Unfair Dismissals Act outlines the options for redress that I must consider. The Complainant is not seeking reinstatement or reengagement since he has secured alternative employment.

As such I will limit considering redress to Section 7.1.C, that is financial loss.

7.1.C states at subclause (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,

Section 7 goes on to state that in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.

Sub section 3 then defines “financial loss”, in relation to the dismissal of an employee, includes 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 made no submissions on loss or diminution of his loss under the Redundancy Payments Acts or superannuation. He did provide information as to how long he was out of work which was four weeks. The Complainant was paid €3000 per month.

While the Complainant disputed much of the Respondent’s case, he did accept that he drove a damaged and unsafe vehicle out on the public road rather than bring it to the mechanic as instructed. Considering the importance of safety in the Respondent’s business and the above section 7.2.f I am of the view a reduction of 50% is appropriate and that an award of €1500 is just and equitable having regard to all the circumstances.

CA-00054906-004 Terms of Employment (Information) Act, 1994

The Complainant in evidence stated he never received a contract.

Mr Victor Rudjka in evidence stated that the Respondent has a standard written contract that he himself signed. They did not have a copy of the Complainant’s contract at the hearing.

The Respondent then sent in a supplemental submission which contained a document which is supposed to be the Complainant’s contract. The Complainant emailed the WRC stating he never received that document before and that contained had different dates to his start date.

As the alleged contract was never presented in the hearing and the Complainant stated in evidence he never received a contract, I find that on the balance of probabilities it was not issued to him.

As such the complaint succeeds and I award the Complainant 4 weeks salary.

CA-00054906-001

The complaint is not well founded.

CA-00054906-002

The complaint is well founded, and I direct the Respondent to pay the Complainant €1500.

CA-00054906-003

The complaint is not well founded.

CA-00054906-004

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