Complainant

Respondent

Parties

Gerard Davin

Martin Barnes Haulage Limited

Representatives

John Forde John Forde HR Advisory & Support

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-00061673-001

20/02/2024

The Respondent states that the Complainant was dismissed because he failed, refused and/or neglected to exchange his UK driving licence for Irish HGV licence. The Complainant stated that he was let go due to the Respondent losing a contract.

Gerard Davin took the affirmation and gave his evidence as follows:

The Complainant started working for the Respondent in 2021. At that time, he presented his UK licence to Ann Hade. Each year he presented his licence. It was accepted each year that he worked there. At the end of the third year, he had to renew his licence. He has a residence in the UK so he decided to renew it here. Even when he was stopped for speeding and had to present his licence, it was not mentioned to him. The Garda asked for his licence, he presented the UK one and nothing was said about it. Then the Respondent lost a big contract and that is the reason why he was let go. It had nothing to do with the licence. The Respondent was just trying to get out of paying redundancies. Two employees were TUPE over to a new entity who took over the milk business when they secure the new contract. At no time during his employment was the issue of his UK licence ever mentioned to him. If it had, he would have done something about it.

John Forde, after taking the affirmation, read out the submission and gave is evidence as follows:

Mr Davin was employed as an HGV driver working in the Republic of Ireland, primarily collecting milk from farmers premises and delivering it to processing facilities. The address on his contract of employment, his payroll records, with Revenue, on his complaint form he submitted to the WRC and used for all correspondence with him is an Irish one.  As a professional driver Mr Gerard Davin, who is a resident in Ireland and driving on a UK driving licence, would be well aware of the requirement for him to exchange his UK licence for an Irish licence in order to comply with the legal requirements for driving in Ireland. The Respondent has been informed that a UK visitor can stay in Ireland and use a UK driving licence for up to 1 year before exchanging. That information is gathered from the NDLS. To ensure compliance the Respondent notified Mr Gerard Davin that he must exchange his licence. He was spoken to on numerous occasions. However, he was allowed to continue to drive while the Respondent believed that he was engaged in the process of exchanging his licence.

 In July 2022 Mr Davin received a speeding fine and we were required to submit his driving licence to the authorities. When the Respondent checked they discovered that he still had his UK licence. Mr Davin had not exchanged his licence as requested and was driving Respondent vehicles on Irish roads with a UK driving licence when it was no longer valid to do so. At that time, he was reminded that he must exchange his UK licence for an Irish licence in order to comply with the legal requirements for driving in Ireland.

Mr Davin was asked again about his licence in November 2022.  The Respondent had an RSA inspection at that time, and were required to get a copy of all the drivers documentation for their own records. It was noted that he still had not exchanged his licence as requested and asked again that he do so.

In an email to Mr Davin on 17th October 2023, as part of the preparation for a WRC inspection the Respondent notified Mr Davin that his UK Driving Licence was due to expire on the 29th of October 2023 and asked him to provide his employer as a matter of  urgency with his Irish equivalent from NDLA as per Exchange my UK/NI Licence applicable from 1st January 2021. Mr Davin informed the Respondent that he had been using his UK driving licence since January 2021 and this was the first he had heard that he was required to exchange his UK licence for and Irish one. He then informed the Respondent that he had renewed his UK licence and it was now valid until 10th March 2028. He was informed that the NDLS confirmed that his driving licence is his own responsibility to manage and, in this case, exchange it. They said that he can only drive for 1 year on a “Foreign License”. After this, it must be exchanged for an Irish Licence. A link was attached for him to begin this process.

Mr Davin was asked in July 2022, November 2022 and October 2023 to exchange his licence which we now know he continued to refuse to do. Mr Davin went on certified sick leave on 6th October 2023. Up to the time of the termination of his employment, 14th November 2023, Mr Davin was allowed the opportunity to exchange his licence, but he still held on to his UK licence. Because he did not have and Irish driving licence, he did not have the qualifications necessary to carry out his job as an HGV driver living and working in the Republic of Ireland. He was given ample opportunity to rectify the situation and he choose not to therefore his employment was terminated.

Mr Davin’s employment was terminated because he did not hold a valid Irish driving licence which is the qualification necessary of the employee to perform the work for which he was employed. He did hold a UK licence which we have been informed is no longer valid for driving on the roads in the Republic of Ireland. Mr Davin was given every opportunity to exchange his UK licence for an Irish licence but failed to do so.

In fact, having been reminded that his UK licence was due to expire on the 29th of October 2023 and he should avail of the opportunity to exchange it for an Irish licence he instead renewed the UK licence. The NDLS - National Driver Licence Service informed everyone that from 1 January 2021 if you are resident in Ireland and hold a UK/NI driving licence it is no longer valid to drive on here in Ireland. It is not legal for driving purposes and must therefore be exchanged. The Respondent’s insurance company have advised us that drivers are no longer insured to drive if they have a UK/NI licence and Ireland is their country of residence.

In keeping with section 6 (4) (a) of the Unfair Dismissals Act, 1977, which stated that 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. Mr Davin was employed as an HGV driver which required the qualification of holding an appropriate Irish driving licence and as he did not possess one, his employment was terminated. This termination of his employment was solely as the result of him not having the qualifications necessary for performing work of the kind for which he was employed, therefore the dismissal was not an unfair dismissal. Mr Davin is not allowed to drive on Irish roads with his UK driving licence. This is the law of the land, not a decision made by Martin Barnes Haulage Ltd.

Ann Hade took the affirmatio and gave her evidence as follows:

The Complainant did produce his UK licence both in 2021 when he started and again in 2023 Thereafter he only presented his CPC.

The Complainant alleges he was unfairly dismissed from his employment with the Respondent. He states that he should have been made redundant when the Company failed to secure the renewal of its milk collection contract. The Respondent refutes the allegation and states that the only reason h was dismissed was because he refused to exchange his UK licence for an Irish one and that meant that the insurance on the lorry he was driving was negatively impacted.

Having heard evidence from both parties I am satisfied that the Complainant did not have a valid Irish driving licence. To date he still possesses a UK licence only. I am further satisfied that he is resident in this jurisdiction. I am also satisfied based on the evidence of the Respondent that in order to meet the legal requirements to legally drive an HGV in this jurisdiction he needs to have an in date valid Irish licence. He does not. I am further satisfied that the Respondent did have several conversations with the Complainant about this issue, sent him the relevant link, and gave him amble opportunity to rectify the situation prior to dismissing him.

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 compliant fails.

Unfair Dismissal. Breach of Statute law. Valid licence.