Complainant

Respondent

Parties

Thomas  Kasak

Munster Derivatives

Representatives

Self-represented

Tom O'Regan, Tom O'Regan & Co., Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00058859-001

16/09/2023

The Complainant commenced his employment with the Respondent on 7 April 2021. He was paid €460 gross per week. His employment was terminated on 14 September 2023.

The Complainant referred his claim to the Director General of the WRC on 16 September 2023 alleging that he was unfairly dismissed.

The Respondent rejects the claim.

The Respondent submits as follows.

The Complainant began working with the Respondent as a delivery driver in April 2021.

The Complainant was involved in a number of incidents while driving company vehicles.

The first incident took place in 2021. In this first incident, the Complainant severely damaged the engine of the company van and he had to be given a spare van. The Respondent attributed this to the Complainant’s severe and reckless driving. On this same day, the Complainant then badly damaged the side of the spare van he had been given. The Complainant claimed that another driver had come onto the wrong side of the road and caused him to hit the wall.

In a separate incident, the Complainant sent a picture of a broken wingmirror on the van to the Respondent. The Complainant claimed that another van had caused the damage.

The Respondent asserted that the Complainant’s driving was known to be reckless, with other employees of the Respondent refusing to drive with the Complainant because they did not feel safe with his driving. The Respondent did warn the Complainant about his speeding; however, this was only a verbal warning.

In early January 2022, the Complainant was involved in an incident at a named store.

The Complainant had a row with one of the store workers dealing with the deliveries at the rear of the shop. The Respondent then had to get a different delivery driver to deal with this store as the store had barred the Complainant from the premises. The Respondent did not issue a written warning to the Complainant with respect to this incident.

Correspondence between the Respondent and its client with respect to the matter was exhibited at the hearing.

The Complainant was involved in another incident in or around 28 August 2023 at another named store. The store made an official complaint on 28 August 2023.

The store provided a copy CCTV footage of the incident together with their complaint. The store complained that the delivery driver, confirmed as being the Complainant, could be seen throwing the newspapers from the van against the wall. The Complainant was then seen opening the newspapers that were to be returned and throwing these across the pavement. The store stated that the papers that had been delivered were wet from the being left on the pavement and that some of the papers were damaged and ripped as a result of the Complainant's behaviour.

Following this incident, the Respondent issued the Complainant with a written warning during a meeting with respect to this incident. The Respondent contended that the Complainant did not want to take the written warning with him and simply left it behind on the desk.

During this meeting, the Respondent showed the CCTV provided by the shop to the Complainant. The Complainant then walked out of the meeting and out of the job.

Copies of the CCTV and the official complaint were exhibited at the adjudication hearing.

In or around September 2023, the Respondent was informed that the last two shops on the Complainants' route were not being completed.

The Respondent spoke to the Complainant with respect to the issue and informed him he would have to put the Complainant on a different route as a result of the issue. The Complainant then stated that he was too busy and had to be back for a different job at 7am. This was the first instance in which the Complainant was also working a separate job. The Complainant was working roughly a 36-hour week for the Respondent.

The Complainant then contacted the Respondent to stating he was willing to quit if the Respondent was willing to make a deal with him regarding a redundancy payment.

The Respondent said that he would organise to have the company van picked up from the Complainant.

The Complainant contacted the Respondent several times over the coming days, to which the Respondent informed the Complainant that all future correspondence was to go through the Respondents' legal representative as the matter had now been referred to the WRC.

Copies of the correspondence between both parties were exhibited at the adjudication hearing.

Summary of direct evidence and cross-examination of Mr O’Neill, Director

With regards to the incident on 28 April 2021, Mr O’Neill said in his evidence that the van that the Complainant drove was not parked properly and it rolled backwards. The Complainant was caught beside a pole. It was a dangerous incident. Mr O’Neill said that the Complainant obtained a video of the incident from the shop in question and sent it to him alleging that the van was not roadworthy. Mr O’Neill disputed the Complainant’s assertion  that another driver was driving the van on the day. He said that it was the van that was assigned to the Complainant. The Complainant was the only person driving the van and there was nobody else in the video.

Mr O’Neill said that the Complainant damaged engines of two vans. He said that the mechanic would not deal with the Complainant as he was abusive.

Mr O’Neill said that the Complainant was to deliver newspapers to the front of a named store and books to the back, but he delivered everything to the front. The Complainant was asked not to do so by the store staff and he became abusive to the staff. Mr O’Neill said that over 30 years there was never any complaints until the issues with the Complainant arose. The named store cancelled deliveries and asked for the Complainant to come and sort it out. The Complainant said that he did so but the named store said he did not engage. Mr O’Neill said that he spoke with the manager of the store and was told that the Complainant never spoke with him. Mr O’Neill said that he needed to get another person to do the deliveries to the store.  He said that the employment of 10-12 people could be compromised as a result of the Complainant’s behaviour.

With regard to the second incident, Mr O’Neill said that he spoke with the Complainant on 30 August 2023. He showed the Complainant the video and the Complainant accepted it was him. Mr O’Neill said that the Operational Menager also attended the meeting. There were no minutes of the meeting.

Mr O’Neill said that the Complainant went to Turkey to get a gastric band surgery at the end of March 2023. He was off for about three weeks. Mr O’Neill exhibited a copy of a text message from the Complainant of 3 April 2023 regarding the surgery. The Complainant accepted that it was a message sent from his mobile number. Regarding the CCTV footage, Mr O’Neill said that the Complainant was much heavier prior to the surgery.

Mr O’Neill said that on 11 September 2023 deliveries to and collections from the last two shops on the Complainant’s route were not completed. The shop in question complained. Mr O’Neill contacted the Complainant and the Complainant said he would deliver the papers.

Mr O’Neill said that on 12 September 2023, he received another call with a complaint that the newspapers were still not delivered. He contacted the Complainant who, again, said that he would deliver the papers. On 13 September 2023, Mr O’Neill got a phone call saying that a breadman delivered the newspapers.

Mr O’Neill said that he spoke with the Complainant three days in a row, the Complainant kept saying “yeah, yeah” but nothing changed. Mr O’Neill said that he issued the warning on 12 September 2023. The Complainant did not collect it and it was sent by standard post to the Complainant’s home address.

Mr O’Neill said that the client told him to take the Complainant off the route in question. When the supervisor told the Complainant that he would have to start deliveries on another route, the Complainant said that he would have to be back in Shannon for 7am as he had another job. Mr O’Neill said that he rang the Complainant on 14 September at 10am. The Complainant returned the phone call at 11am and said that he needed to be back in Shannon for 7am. Mr O’Neill explained to the Complainant that the job was 4hrs – 4 hrs 15min. If the Complainant started at 4am, he would not finish until approximately 8am. The Complainant repeated that he needed to be in Shannon for 7am so someone else had to do deliveries. Mr O’Neill said that there was no way the Complainant could do the two jobs at the same time.

Mr O’Neill confirmed that the decided to collect the van from the Complainant and that this decision was, in effect, a decision to dismiss the Complainant. 

The Complainant submits that he was dismissed on 14 September 2023 right after he finished work.

He submits that he received a call from his boss that he was dismissed and that someone would pick up company van from his house in the evening. The Complainant has been working for the Respondent as a van driver for over 2.5 years. He delivered newspapers every day regardless of the day of the week. He worked 7 days a week, 364 days a year. The Respondent has never paid him extra for working on a Sunday and he never received any extra pay for working on a bank holiday. The Complainant submits that he never received any payslip so he didn't really know how he was paid.

The Complainant submits that he was dismissed without any notice or a warning. He felt cheated because he was dismissed unfairly and without any severance pay.

Summary of direct evidence and cross-examination of the Complainant

The Complainant agreed that the route number LMK02 was his but asserted that he also had some shops on other routes and could give his newspapers to other drivers.

The Complainant disputed that the alleged incident in 2021 occurred.

With regard to the pictures of damage to the van which the Respondent exhibited at the hearing, the Complainant confirmed that he took them. He said that another driver hit him. He said that he gave the other driver’s insurance details to Mr O’Neill who told him not to worry.

With regard to the incident in the first named store, the Complainant said that he did not deliver books, he never had any argument with the staff in the store and was never asked to go and sort anything out.

Regarding the incident in the second named store, the Complainant said that it was not him. He said that he left the papers for another driver to deliver. 

The Complainant denied that it was him in the videos exhibited at the hearing.

With regard to the meeting on 30 August 2023, the Complainant said that it never happened, he was never spoken to about his performance. He said that he never got the letter of 12 September 2023.

The Complainant said that he worked some 38-40 hours a week for the Respondent (Monday-Friday and Sunday from 3am to 8am and Saturday from 3am to 10am). He said that he had another job from 7.30am to 3pm, three days a week. He said that he started on 13 September 2023, he did not double-job.

In cross-examination, the Complainant said that he moved to the job in Shannon after the termination of his job with the Respondent.

The Complainant confirmed that he lost some 15-20kg following the surgery in Turkey.

The Complainant could not remember who was with him in the van on 28 April 2021. He said it could be a friend or a cousin. Despite the seriousness of the incident, he could not recall who was driving the van. He said that he often got other people to drive the van for him when he was not available.

With regards to his financial loss, the Complainant said that he started a new job on 13 September 2023. He was paid €14.79 per hour and worked 38 hours a week. He finished that employment on 2 August 2022 and he would now make effort to look for another job.

Section 1 of the Unfair Dismissals Act provides the following definition of “dismissal”:

“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 Act stipulates as follows:

‘Unfair dismissal

(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.

 (4) 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,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(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.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to 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 section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.

In The Governor and the Company of Bank of Ireland v James Reilly (2015) IEHC 241, Mr. Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: 

‘It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.’

Furthermore, in Bunyan v United Dominions Trust (Ireland) 1982 ILRM 404, the EAT endorsed and applied the view in the case of N.C.Watling Co Limited v Richardson 1978 IRLR 225 EAT (ICR1049) where it was stated: ‘The fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved. The Tribunal therefore does not decide the question whether, on the evidence, before it, the employee should be dismissed. The decision to dismiss has been taken and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.‘

The Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 (S.I. No. 146/2000) promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The core tenet of the Code is that all employees are entitled to fair procedures and natural justice in all of their engagements with their employer.

The combined effect of the above requires me to consider whether the Respondent's decision to dismiss the Complainant was reasonable in the circumstances. The Act places the burden of proof on the Respondent to demonstrate that the dismissal was fair. As part of exercising this burden of proof, the Respondent needs to show that fair process and procedures were applied when conducting the dismissal.

The Complainant alleges that he was unfairly dismissed by the Respondent. The Respondent relies on the incidents that occurred during the Complainant’s tenure with the Respondent and contends that the Complainant’s dismissal was due to his conduct.

The Complainant was dismissed on 14 September 2023 and his dismissal seems to have been triggered by the events from 11 September 2023 where he failed to fulfil his duties. The Complainant made a decision to abandon part of his delivery on 11 September 2023 in another shop without reaching the destination and, despite assuring Mr O’Neill that he would complete the job, he did not do so. It seems that a random third-party driver picked up the newspapers and delivered them to the destination shop on 13 September 2023.

The Respondent asserted that there were other incidents prior to September 2023. Mr O’Neill gave evidence that he and the Operational Manager met with the Complainant on 30 August 2023 after a complaint was received on 28 August 2023 from a store on the Complainant’s route. The Respondent asserted that a verbal warning was issued to the Complainant at that meeting. The Complainant contended that no such meeting took place.

The Respondent exhibited a copy of a letter dated 12 September 2023. Mr O’Neill did not dispute that there was no meeting at that juncture and the letter was sent by standard post to the Complainant’s home address. The letter entitled “Formal warning for Thomas Kasak” makes reference to the meeting of 30 August 2023 and the measures agreed regarding the Complainant’s performance. The letter outlined the grounds for issuing the warning and the steps to be taken to address these issues. The Complainant argued that he did not receive the letter.

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·       That employee grievances are fairly examined and processed;

·       That details of any allegations or complaints are put to the employee concerned;

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

Even if it was accepted that the Respondent met with the Complainant on 30 August 2023, it is clear that the requirements of the Code were not met. There was no evidence to suggest that the Complainant was aware of the allegations against him in advance or that he was advised of his right to be accompanied at the meeting. As there were no minutes of the meeting, it is impossible to ascertain whether or what opportunity the Complainant had to respond to the allegations.

The matter then progressed from a verbal warning to the written warning. Even if it was accepted that the letter of 12 September 2023 was issued to the Complainant, it is apparent that fair procedures were not adhered to at this stage. The Respondent confirmed that the warning was issued without meeting or discussing the matter with the Complainant.

Some two days after the warning was issued (if, indeed it was), the Respondent made a decision to dismiss the Complainant. It is clear that the Respondent did not follow any procedures before dismissing the Complainant. The Respondent seems to have dismissed the Complainant via a text message that informed the Complainant that the van would be picked up from him. At the hearing, Mr O’Neill confirmed that this decision amounted to a dismissal. There was no appeal afforded to the Complainant.

An employee has the right to a fair and impartial determination of the issues being investigated as provided for in the Code of Practice on Grievance and Disciplinary Procedures as well as case law. Put simply no procedure was followed nor were fair procedures applied whatsoever.

Based on the totality of the evidence adduced, both written and oral, and the submissions made, I find that the dismissal of the Complainant was procedurally unfair.

With regard to the substantive matter, I find that the Complainant denied that he was involved in any of the incidents described by the Respondent. He also denied that he met with Mr O’ Neill or that he received either of the warnings. In support of this, the Complainant seemed to describe his employment relationship with the Respondent as one resembling a contract for service. He alluded that he was entitled to rely on third parties to complete his deliveries. He said that he had his cousin and friends driving the van for him, that he could switch and swap the routes and deliveries. He did not accept that there were many implications, including insurance, that precluded him from doing so. This is in complete contradiction with the evidence of Mr O’Neill who stated that each driver had a van assigned and a route to be completed. On the balance of probabilities, I accept Mr O’Neill’s evidence as more credible. This is mainly because the Complainant was unable to recall any details and provide any information as to, for example, who were the people doing his job for him. His explanation was that he had many friends.

The Complainant appeared to have made a decision that he could take shortcuts to finish his work earlier. He adopted a very flexible approach to his role. He did not seem to comprehend that he was paid for doing a job and it was his job to complete.

I note that on the morning of 14 September 2023, the Complainant sent a lengthy text to Mr O’Neill saying that he was not a “stupid guy” and suggesting that he was ready to leave the job if a deal was made. He requested the Respondent to pay him redundancy and he would be gone. I was unable to establish what prompted this message, if the Complainant, as he claimed, did not receive the letter of 12 September 2023. It was only after this message that the Respondent decided to terminate the Complainant’s employment.

I find that the Complainant contributed in no small measure to his own dismissal.

Redress 

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of section 6 of the Unfair Dismissals Act. Accordingly, I find that the complaint is well founded.

Section 7 Redress for unfair dismissal of the Act provides:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c)

(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, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,…”

Section 7(2) of the Acts provides: -

“(2) Without prejudice to the generality of subsection (1) of this section, 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 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….”

Section 7(3) of the Act provides that future loss may be taken into account as follows: ‘”financial loss”, in relation to the dismissal of an employee, includes any actual loss and 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 2022, or in relation to superannuation;’

In accordance with the provisions of section 7(1) of the Act, I am obliged to determine which of the three forms of redress open to me is most appropriate having regard to the circumstances of this case. The Complainant sought compensation. In the circumstances, and in light of the fundamental breakdown of the relationship between the parties, I am inclined to agree with the Complainant that compensation is the appropriate redress in this case. In the circumstances of this case re-engagement or reinstatement are not tenable alternatives to compensation.

I note that the Complainant secured new employment on 13 September 2024, prior to his dismissal. He was paid €14.79 per hour and worked 38 hours per week (€562.02 per week). This employment relationship terminated on 2 August 2024. While the Complainant asserted that the role was secured through an agency for the period of 11 months, no evidence to that effect was provided. I find that the Complainant suffered no loss for that period. By his own admission, the Complainant would now start to seek new employment. If the Complainant was aware that the contract was for 11 months and was due to expire on 2 August 2024, I find that the Complainant has failed to produce credible evidence that he has made sufficiently rigorous attempts to mitigate his future loss.

Accordingly, I determine that the appropriate compensation payable to the Complainant is €460 which is equivalent to one week’s pay.

I declare this complaint to be well founded. I order the Respondent to pay the Complainant €460 in compensation for loss of remuneration arising from the Complainant’s unfair dismissal. 

Unfair dismissal – complainant contributed to his dismissal