Complainant

Respondent

Parties

Victor  Caraus

Sysco Foods

Complainant

Respondent

Anonymised Parties

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Representatives

Alan Devaney RDJ LLP

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-00061226-001

26/01/2024

The Complainant alleges he was unfairly dismissed due to a back injury he sustained at work. The Respondent contests the allegation and states that his dismissal arose due to his refusal /failure to secure a valid Irish driving licence.

The Complainant states that this story started when he injured his back. After a period of recovery, he was medically advised to return to work for four days. He couldn’t do four days as that meant that he had to do two days in a row and that hurt his back. That was when it all went wrong.

In the five years he was working for the Respondent nobody ever mentioned anything about his licence being invalid. He had a Romanian licence. The Respondent commenced a check on all licences in the months prior to his dismissal. All drivers were asked to secure Irish driving licences. During that process all of the drivers were being asked for updates regularly about their Irish licence application but he was never asked. At the first meeting about the issue, they were all told they had 8 weeks to get their licence and during that time they had to think about what they wanted to do. He had an Irish B licence and that is why he asked about van driving job. He got nowhere with that. Others came back with the same licences, and they were rehired. He was fired.

On cross examination the Complainant accepted that the law here in Ireland is that if he is here for more than 12 months he has to apply/ covert his licence for an Irish licence. The Complainant stated that that law applies to everyone and not just him.

The driver licence declaration was completed by him. The Country of issue was Romania and he had a Category C and D licence. He did not declare that he had an Irish Licence at all. He accepted that on cross examination.

On the 19th June 2023 he received an email entitled “Holders of drivers licences from other countries”. The documents relevant to his application were attached.  He accepts that he received it on 19th June 2023,  but he denied that he was asked about his licence in that email.

Again, on the 4th July he was written to and was again told his licence was not valid in Ireland. He was advised to get a B licence first and then he could apply for his C licence but he didn’t tell the Respondent he already had a B licence. The Complainant stated that he didn’t tell the Respondent he had an Irish B Licence because there were no van driving roles available.

25th August 2023 Mr Young stated that he had a meeting with him over the past few weeks and he was told that the Complainant had not made any progress. The Complainant denies he was spoken to but admits he didn’t write back to set the matter straight. He was offered other positions, but he accepted he did not apply because he wanted the “helper” job and he was told he couldn’t do that at the same salary.

The Complainant is still not working. He is doing online courses since October 2023. He finished working on the 4th September.

Mr Webber – affirmation

The Respondent had a vehicle repossessed in Dublin that was seized by An Garda Siochana due to a licencing issue. The driver had a non- Irish issued licence with 70 MD on the back of it. He was instructed to start a check on all the licences. He started researching all non-EU Irish licences. He also did a check of how many employees who held such licences. One of the drivers came to them and made them aware of the “70MD” issue on the back of licences.  He couldn’t exchange his licence because Moldova is not a recognised state.  Also, during an open day Mr Webber asked the speaker for some more information about the issue. He gave him the information that he needed.

The Complainant stated all drivers had to exchange their licences if they did not have an Irish licence. The Complainant said that he had a colleague who was working with the same licence as him and he left but when he came back, he was rehired but he didn’t have the correct licence. Mr Webber was unaware of this issue and stated that the company hasn’t hired anyone since this issue was noted.

 Jennifer O Donoghue – affirmation.

Throughout June 2023 there was talk about and issue with licences. Everyone was aware that the flet management team were investigating it. She linked in with her transport manager to see what the next steps were. There were 15 drivers affected. They were immediately stood down. Letters were issued to all 15 on the 4th July advising them of the situation and advising them to rectify the situation. They were given 8 weeks to do that.  Some of the employees came back stating that they needed more time to rectify the situation. The end date was the 26th August. Some of the drivers had the issue resolved by then. While they were sorting it out, they were placed on different duties and were paid accordingly. Once the issue was resolved for them, they returned to their driving duties and their normal salaries.

The Complainant stated that at the first meeting he was told that he had 8 weeks to think about  what he was planning to do, i.e. stay or leave. Later he was told that the 8 weeks was to rectify the situation. Other drivers were asked about their status, but the Complainant wasn’t asked. He thinks it was because he had a back injury and he was only working 3 days a week. They wanted to get rid of him.  All of that is not correct. There was a process in place at the time for him. It was a phased return to work. That was a separate process and had nothing to do with the 70MD issue. They were dealt with by different people.

The Complainant states that  Cyril Young was at the July 2023 meeting, the 2nd meeting.. He wasn’t asked about the licence, it was all about him returning to work. That is not correct. Ms. O Donoghue stated that the issue of his return to work would not have been discussed with any other drivers present as it was a private issue between him and the Company.

Cyril Young – Transport International Manager. – affirmation.

He did the research into the issue of 70 MD licences. He met with the Complainant on June 19th. He made him aware of the issue with the licence. There were 6 drivers at the meeting. The Complainant never stated that he had a valid licence. On the 4th July we met with him again and issued him with a letter and gave him a timeframe to rectify the situation. The letter stated :

Dear Victor, I am writing to you in follow up to our meeting today where we advised you that your position as C Licence – Multi Drop Delivery Driver is at risk following the finding that your Drivers licence holds a restriction code, namely 70MD. As discussed, you have been stood down from driving duties while we sought clarity on the restrictions attached to your licence. From liaising with the relevant authorities, professional drivers holding a Romanian licence with the 70MD restriction have a period of 12 months to convert their licence to a European licence from the time they enter a European country outside of Romania. From our records we note that you are resident in Ireland for more than 12 months and therefore your current Driving Licence is no longer valid. We have identified that in order for you to obtain a valid Driving Licence to drive in Ireland, you will be required to apply for a provisional Driving Licence, obtain a B category licence and complete the application process for a C category licence. Should you wish to undertake the necessary actions to obtain your licence Sysco Ireland will support you to enable you to return to driving duties, you must however have completed same by no later than August 26th 2023. We encourage you to seek your own advises and apply for the relevant licence to drive in Ireland so that you can return to driving duties. As mentioned, we will support you to complete these steps over the next eight weeks with a view to getting you back to full driving duties and securing employment. Should you decide not to obtain the relevant licence required to carry out your role, we will not be in a position to continue to employ you as a professional Multi Drop Delivery Driver and your employment will be at risk of termination unless you are successful in securing an alternative role within Sysco Ireland.”

 He did say 8 weeks wasn’t enough time.  Mr. Young had another conversation on the 18th July and asked him about his progress. He hadn’t done anything and no progress was made at all. He was issued with another letter on the 25th August advising him that he was being issued his notice as he was no longer available to drive for the Respondent. One of the shift managers gave him the letter. He did not respond to that letter. 

He was dismissed from his employment by Mr Young. He was dismissed because he did not have a valid licence. That was the only reason he was dismissed. He was on three days, and he was facilitated with that due to his injury. He was in the phased return to work process at the time. Mr. Young did have the medical report from occupational health stating that he was fit to return to full duties. Mr Young did ask him when he might be able to return full time. He denies the allegation that he said “if you can’t work full time there is no job for you”. Mr. Young stated that there was no pressure on him to return to full time work.  If he had his licence he could have returned and would have continued on the phased return to full time work.

The Complainant stated that he asked if he could do a helper position and if so, would he get the same salary. He was told that if he was making progress with the licence application, he would have been able to carry out that role until the licence came through.

The Complainant states that the letter from August was just given to him and nobody explained it to him. Mr. Young and the Complainant’s manager did explain it to him.

The Complainant states that he told Mr Young that he had an Irish B licence and he could drive a van. Mr. Young does not recall that but in any event, they were only looking for C Licence.

The Respondent became aware of an issue in relation to its non-Irish driver’s licences when a lorry being driven by a driver with foreign licence was seized on the Quays in Dublin. They carried out extensive research into the issue and discovered that all drivers who had licences from other EU jurisdictions who were resident here for more than twelve months had to convert their licences. The Complainant was given amble notice about the issue and amble time to rectify the situation. He failed to take any action to secure his Irish C licence.

Section 6 (4) (a) of the Unfair Dismissals Act, 1977 stated “without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

I find that in the circumstances where the Complainant failed and/or refused to secure a valid Irish licence he was unable to continue to work for the Respondent without being in contravention of Irish law. Therefore, I find that the dismissal was not unfair. The complaint fails.

The complaint fails.