Complainant

Respondent

Parties

Paul  Kenny

Thornton Waste Disposal Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

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-00069512-001

24/02/2025

The complainant submitted a claim of Unfair Dismissal on 24th of February 2025.   The complainant was employed by the respondent as a truck driver from 14th of June 2019 to 13th of February 2025.

The complainant alleges that he was left with no alternative but to resign his position after the respondent ceased to provide him with a vehicle to commute to and from his place of work.

The respondent disputes the claim stating that the complainant walked out on 13th of February 2025 but has not resigned and remains on the books. 

The complainant submits that he was employed by the respondent as a truck driver from 14th of June 2019

He submits that while he out of work on sick leave the manager took the company van that was provided to him by his employer which he had received in January 2024

The complainant submits that he sold his own personal vehicle as he had a company van for transport to and from work

The complainant submits that when he tried to go back to work the respondent changed the verbal agreement that he had with the employer since 2019 regarding overnight use of a lorry and he was told he could no longer bring the lorry home at night as it was needed for the night shift drivers  

The complainant submits that according to his verbal contract he was to be the only person who drives that lorry as he leaves his personal belongings in it overnight and after spending the night out working, he could not drive back to yard doing long distance drops.

The complainant submits that when he was due to return to work after sick leave, he left his personal belonging in the lorry and was told by the manger that he had had to return the lorry for the night driver to use

 The complainant submits that when he received the lorry the next day his personal belonging had been moved and opened.

The complainant submits that he was told when due to return work that his employer would organise to return the company van to him but that was not provided as he was told that all vans were in use

The complainant submits that he had no means of transport to work once the company stopped providing him with a van and refused to allow him to bring the truck home with him overnight and so he had to rely on his daughter to give him a lift to and from the truck depot.

The respondent submits that the complainant walked out of work on 13th of February 2025 but has not resigned and remains on the books. 

The respondent submits that the complainant did not return following an incident in which he asserted an entitlement to a company van for commuting to and from work after he was instructed not to take a truck home at night

The respondent submits that following issues where the respondent discovered that the complainant had been bringing an Arctic truck home at night dumping the trailer unit on a hard shoulder on the N3/N4 and then parking the truck unit outside his house the complainant was instructed not to brig the truck home at night but to leave it in Park West and drive home himself.

The complainant requested a van for the commute and as a temporary measure in January 2024 it was agreed that he could use a company van for commuting whenever one was available.

The respondent submits that even with this arrangement the complainant continued to bring the truck home as he didn’t want other drivers using it, but this became unsustainable when the truck was required to work night shifts also.

The respondent submits that the complainant was absent from work from November 2024 to February 2025 on sick leave and on his return that the complainant requested a van for commuting but was informed by the respondent that no vans were available as all were being deployed by the company.

The respondent submits that the complainant returned to work as planned in February 2025, but the vehicle tracker showed that he continued to take the truck home at night despite instructions not to do so.

The respondent submits that the complainant was asked about this and cited personal belongings in the truck as the reason.

The respondent submits that following this the truck was again taken home by the complainant.

The respondent submits that this matter was raised with the complainant reiterating that he did not have permission to bring the truck home at night

The respondent submits that it advised the complainant that it was unable to provide him with a van in place of the truck for commuting to work and he would have to use his own transport to and from the depot

The complainant replied stating that commuting without a van was not workable and he did not return to work.  This happened on 13th of February 2025.

He returned the truck and trailer, collected his belongings, and left in his own car (Renault Laguna).

The complainant made no further contact other than to submit his work hours for payment.

Section 1(b) of the Act defines a constructive dismissal as: -

“(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(1) of the Act states:

“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.”

Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy either one or a combination of both of the following “tests”.

There are two sets of circumstances in which a resignation may be considered a constructive dismissal.  The law is well settled here, and these tests are known as the “contract” test and the “reasonableness” test.  The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign.  It is now generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. 

The reasonableness test requires that the employee must satisfactorily demonstrate that the employer behaved or acted in a manner, which was so unreasonable as to make it impossible for the employee to continue in the employment.  The employee must show that his behaviour/action in resigning was reasonable in all the circumstances. 

In Berber v. Dunnes Stores [2009] 20 ELR, the Supreme Court held as follows:

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them.  The term is implied by law and is incident to all contracts of employment unless expressly excluded.  The term imposes reciprocal duties on the employer and the employee.”

In the English case of Western Excavating (ECC) Ltd v Sharp [1978] IRL 332 Denning J stated:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one of more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance.”

The complainant advised the hearing that he was left with no option but to resign his employment after the respondent discontinued his use of a work van and left him with no means of commuting from his home to work.

The complainant submits that he had worked as a truck driver for the respondent and had always brought the truck home with him at night until the respondent raised an issue in this regard stating that the trailer was being left in a dangerous place on the side of the road by the complainant and could cause an accident.

This complainant disputed this but stated that he was told not to bring the truck home with him at night but that he should instead park up the truck in Park West, and he could then use a company van to commute to and from Park West.  The complainant stated that this was a verbal agreement.

The complainant advised the hearing that he was told on 6th of February that there was no van available for him to use and that he had to leave the truck at Park West to be used by an overnight driver.

The complainant stated that he told the respondent that this would leave him with no means of commuting to work as he had sold his own car and stated that he would now have to rely on his daughter to drive him to and from work.  The respondent at the hearing disputed this stating that the complainant had his own vehicle and could drive himself to and from the depot in Park West. 

The respondent advised the hearing that the complainant was instructed not to bring the truck home at night as the respondent had become aware that he was parking the truck outside his house but was dumping the trailer unit it in a dangerous spot on the side of the road.

The respondent advised the hearing that the complainant was given the use of a company van when one was available in order to travel to and from the truck depot but that he still continued to bring the truck home as he didn’t want others driving it

The respondent stated that the complainant was advised on the week of 3rd of February 2025 that there was no spare van available in the company to give him and he would need to make his own way into work.   The respondent stated that the complainant was told not to take the tractor unit back to his house as the truck was required in Park West each evening for the night run drivers to use.

The respondent advised the hearing that the complainant had stated that he would have to think about this and in the following days went to the company head office and asked for a van for himself.  The complainant was advised that there were no spare vans available in the company.

The respondent advised the hearing that the complainant texted the respondent and advised that he would be returning to work Monday Feb 10th, and asked what truck to use.

The respondent stated that the complainant was advised of work plan and attended work on the 10th and 11th without issue however on the evening of the 11th the respondent after checking the vehicle tracker  saw that the complainant had taken the truck home to his house in Navan the respondent stated that the next day they queried with the complainant  as to why he took the truck home after being advised not to.

The complainant in reply stated that he needed to put his personal belongings etc back into it (LED backboard signs etc).   The respondent checked the tracker again that evening and, saw that the complainant had taken the truck home to his house again.

The respondent advised the hearing that the complainant again attended work on 13th of February when the respondent asked the complainant why he was still bringing the truck home after being instructed multiple times to stop driving the truck to his house in Navan.

The respondent stated that they were advised by the complainant that because he was not given k a van by the respondent upon his return, he had no other way to commute to work.

The respondent stated that they reminded the complainant that he was aware prior to returning that there was no van, and he agreed to come back to work on this basis.    The complainant stated that he had been promised him a van while he worked there.

The respondent submits that it was not aware of any such agreement and reminded the complainant that he was told the previous week there was no van available and he would need to make his own way to and from work.

The respondent advised the hearing that the complainant replied, ‘Well this isn’t going to work for me then’.   The complainant was advised that there was plenty of work for him with the respondent but that he could not bring the truck home as it is needed for night shifts.

The respondent advised the hearing that the complainant also queried where his Christmas bonus vouchers were and was advised that the were on the Killeen Road weighbridge after which the complainant ended the call.

The respondent at the hearing stated that upon checking the CCTV footage for the Park West CCTV cameras observed the complainant remove his personal belongings from the truck walk to the staff car park and using a key he got into a car in which he drove to the yard cabin returned the truck keys to the ‘Arctic’ security lock box.   The respondent stated that the complainant then drove the car into the Killeen Road depot. There was no one else in the car.  The responded stated that it reviewed the Park West truck park CCTV cameras to see when the car had arrived and noted that the complainant had arrived in the car on Monday morning (Feb 10th). The respondent stated that the car remained in the same spot all week with the complainant driving past his car in the evenings to drive back to Navan in the truck.  The complainant stated that he had borrowed the car.

The respondent received a text from the complainant on 18th of February with his work hours for payment. There was no further communication from the complainant after this text.

The respondent advised the hearing that the complainant had not sought to raise any grievance in respect of this matter he simply stated that it would not work for him and left.  The respondent advised the hearing that the complainant did not engage with them or seek to resolve the issue and remains employed by them as he did not resign and was not dismissed.

In examining this matter in the context of the test of reasonableness, I am mindful of the finding in the case of McCormack v Dunnes Stores UD 1421/2008 where the Employment Appeals Tribunal noted the high burden of proof on an employee in a case of constructive dismissal, including the need to demonstrate that all internal grievance procedures had been exhausted.    Thus, it is incumbent on the complainant to demonstrate that the actions of the employer were so unreasonable that he was left with no option but to resign, he must also demonstrate that he has acted reasonably and exhausted all internal procedures before taking the step of resigning his employment.

In resigning in circumstances that a complainant asserts amount to constructive dismissal, I am satisfied that such a complainant must act reasonably.    This includes affording the employer an adequate and reasonable opportunity to address and remedy any grievance/issue.  

In addition, I note the finding in Conway v Ulster Bank UD474/1981 in which it was held that a Complainant had not acted reasonably by resigning before having substantially utilised the relevant internal procedures.     

I am satisfied from the totality of the evidence adduced here that the complainant in this case has failed to demonstrate that the ‘’ employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

In addition, I am satisfied that the complainant in this case failed to fully engage with his employer before walking out and did not afford the respondent the opportunity to deal with matters accordingly I find that he did not act reasonably in so doing.

Having considered the totality of the evidence adduced, it is not possible to conclude that the complainant in this case had nowhere else to turn other than to consider himself dismissed.  

Furthermore, I am satisfied from the totality of the evidence adduced that the Complainant in this case has failed to establish that there was a fundamental breach of his contract which would meet the requirements of ‘the contract test’. 

The complainant has also failed to establish that the respondent’s behaviour was so unreasonable that it left the complainant with no alternative but to consider himself dismissed i.e., or ‘the reasonableness test’.    Accordingly, I declare this claim to be not well founded.

I declare this claim to be not well founded.