Complainant

Respondent

Parties

John Patrick  Kehoe

Timothy Neville Limited

Representatives

John Fitzgerald of JJ Fitzgerald & Co. Solicitors

Dorothy Donovan BL

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00060326-001

30/11/2023

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

CA-00060326-002

30/11/2023

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

CA-00060326-003

30/11/2023

The Complainant was a driver working for the Respondent delivery company. He drove rigid delivery trucks, mostly at night, to and from distribution depots for major retailers.

He began working for the Respondent in August 2021 and ceased working for them in July 2023. The circumstances of his employment ending are in dispute.

The Complainant alleges that he was dismissed without notice after being involved in an accident. The Respondent alleges that the Complainant resigned following his being taken off night work. 

The Complainant’s solicitor provided written and oral submissions on his behalf.

The Complainant provided evidence under affirmation.

He delivered goods to regional centres of large retail outlets. Over time his routes did change and he was unhappy with some of that change. In May 2023 he was reprimanded for his trucks indicator and wheel being scratched. He took the view if they were arguing over 50c plastic caps then they might as well call it a day and resigned. He withdrew this resignation after a discussions with Mr Neville and they agreed to move forward.

On the 5th of July 2023 he was driving out of Middleton at about 7 in the morning. He had just loaded the truck. He was going down a hill which had a junction at the bottom.  The Complainant’s evidence was that he was tapping his brakes to moderate his speed while going down the hill. At first they were working then the air pressure in the brakes went. The air brakes did not lock when the air pressure went and instead became ineffective.

The Complainant swerved into a different lane of traffic to avoid a van which he clipped. He then pulled the handbrake. The Gardaí came and he was taken to hospital. The truck couldn’t be moved as there was no air pressure and the Gardaí had it moved to their depot.

This was the last day he worked for the Respondent. There was follow up between the Complainant and Mr Neville regarding the circumstances of the incident, his going on illness benefit due to the incident, the dashcam footage and engagement with an Garda Siochana.

On the 11th of July Mr Neville, after having reviewed the footage told him he was unhappy with how the Complainant had handled matters and was letting him go. He issued him with letters for social welfare. The Complainant requested redundancy and notice but these were not given to him.

The Complainant received two points on his license for the incident.

The Complainant also outlined that he believes that he was owed 5 bank holidays as he did not receive leave for working them. He did not work the June bank holiday weekend and got paid.

The Complainant was cross examined by Ms Donovan for the Respondent.

He disputes saying he was going to leave the Respondent’s service to go on illness benefit. He was told by one of the paramedics that he was concussed though he was discharged by CUH after tests.

He accepts that he was doing nightwork when he first started working for the Respondent and that the situation had changed in May 2023. He disputes that nightwork finished, there was just less of it.

He never received a contract and disputes the Mr Neville left a contract in the truck for him.  

The Respondent’s owner Timothy Neville attended the hearing represented by Ms Donovan BL who made oral and written submissions.

Mr Neville gave evidence under affirmation.

The Complainant had joined the company via an ad on indeed.ie. He was one of eight drivers employed by the Respondent. When the Complainant started he left two copies of his contract in his truck, one for him and one for the company. This was how they would normally deal with paperwork. Mr Neville would leave paperwork into the cab and collect it at the end of the week. Mr Neville remembers that there was one copy of the contract left in the cab at the end of the week. He picked it up but didn’t realise it was unsigned.

The Complainant was doing nighttime work which began to fall off in December 2022. The rest of this work ceased in the first half of 2023. The Complainant wanted to resign and take social welfare in May 2023 but Mr Neville didn’t feel he could give him letters saying there was no work when there was still some nighttime work left.

After the incident Mr Neville had concerns about the Complainant’s driving. The Complainant stated that he believed things were not working out for him and if Mr Neville would give him the letters for social welfare he would go.

The Complainant put pressure on him via whatsapp messages which suggested that he wanted to see how Mr Neville “would behave” when it came to his requests for outstanding expenses and wages before deciding if he wanted to make a statement to an Garda Siochana about the crash.   

Mr Neville issued the requested letter on the 14th of July. This stated that they no longer had night work for the Complainant, and he had left by mutual agreement.

Mr Neville had nothing to fear from a Garda statement. The Respondent was obviously already liable for the incident. He entirely disputes the Complainant’s evidence about the brakes failing and points out that air brakes lock when the pressure fails rather than stop working.

Mr Neville was cross examined by Mr Fitzgerald for the Complainant.

Mr Neville left the contract in the truck cab on the 25th of August 2022. He presumed that the Complainant received and held on to his copy as there was only one copy in the cab remaining.

Mr Neville did tell the Complainant that he was unhappy with his driving on the 11th of July. However, he did not dismiss him. He says he told him night work had finished and they only had day work for him. The Complainant was unhappy about this and resigned. He would have been happy for the Complainant to stay doing day work but might have had to get his driving assessed.

He disputed the Complainant’s claims about brakes and says that the incident occurred on a relatively flat stretch of road, not a hill.

While he had been critical of the Complainant’s driving in the past he did not dismiss him.

CA-00060326-002- Unfair Dismissal Act 

Where the fact of dismissal is in dispute the burden is on the Complainant to establish that dismissal occurred. The Respondent’s evidence was that the Complainant’s exit was by mutual agreement and was not a terminated. The Complainant’s evidence was that he was dismissed on the spot.

During the hearing the following two text messages from the Complainant to Mr Neville were brought into evidence. These were sent on the same day sometime between the 10th and 14th of July 2023.

At 12.02

That’s fine, it’s up to you when you give the 2 weeks paid notice Tim as long as the date I’m officially finished is on the letter and on your system for the social welfare to see and I keep getting paid my wages for being injured during work hours until I receive the termination of employment notice and I would like to be compensated for the above bills for making my own way back from hospital too. So I full expect my wages in my account today as discussed using the AL days to finish last week. 2 weeks paid notice up to the termination date from whenever you send the letter and 1 weeks redundancy as we have passed the 2yr employment date according my bank account.

At 22.09

Just to let ya know that the garda from Cork was on, I know he rang you too, I’ve told him I’ll get back to him in a couple of weeks regarding whether I make a statement or not as I want to see what way your going to behave. I saw no wages today when I was at the doctors so I hope  your putting them and my expenses in tonight, the direction this goes in completely in your hands Tim (shrug emoji). 

While the Complainant’s texts do seem to refer to him being made redundant, either by agreement or compulsorily, they do not refer to him being dismissed for alleged dangerous driving which was his evidence to the WRC. He also directly states that his engagement with the An Garda Síochana will depend on how Mr Neville responded to his requests. This obviously makes his evidence to the WRC difficult to rely on by itself.

Finally, the Complainant never appeared to challenge the letters issued by Mr Neville on the 14th of July which referred to the Complainant’s employment ending by mutual agreement due to the absence of nightwork and that the Respondent was voluntarily giving him two weeks’ pay in lieu of notice. He did not respond to these letters or seek to correct the record in anyway until he filled the WRC complaint form over four months later.

In the circumstances I am not satisfied that the Complainant was dismissed.

CA-00060326-001 Terms of Employment Act

Section 3 of the Act states that An employer shall, not later than one month after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment.

The onus is clearly placed on the employer to ensure the employee is given a statement of particulars. Mr Neville has provided evidence that he left two copies of the contract, each signed by him, into the Complainant’s truck cab and collected one later in the week. The retrieved copy was not counter signed by the Complainant.

Considering the Complainant’s evidence that he never received the contract I am not satisfied that the Respondent discharged their duty under section 3.

Section 7 of the act gives me jurisdiction to award up to 4 weeks salary. Section 17 also provides that weekly wages should be calculated in line with the regulations set out in Section 17 of the Unfair Dismissals Act, that being SI 287 of 1977.

Section 13 of the regulations state: For the purposes of Regulations 4 and 7 of these Regulations, account shall not be taken of any sums paid to an employee by way of recoupment of expenses incurred by him in the discharge of the duties of his employment.

As such I am limited to the Complainant’s actual salary, not inclusive of his overnight subsistence allowance. That is a salary of €596.50 per week or €2386 in total. In the circumstances, particularly noting the differences between the parties regarding the Complainant’s working hours which should have been specified in a statement of particulars, I award the Complainant €2386.

CA-00060326-003 -Organisation of Working Time Act

This complaint relates to public holidays. There was only one public holiday identified within the cognisable period of 6 months from the date the complaint form was lodged. That being the 2023 June bank holiday. The Complainant accepted in evidence that he had not worked the bank holiday but had been paid.

As such no breach of the act within the relevant time period has been identified.  

CA-00060326-001

I find that the complaint is well founded and direct the Respondent to pay the Complainant €2386 in compensation.

CA-00060326-002

I find that the complaint is not well founded.

CA-00060326-003

I find that the complaint is not well founded.