EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Pat O'Connor UD413/2013
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. E. Harrington
Members: Mr. P. Casey
Mr. O. Wills
heard this case in Cork on 24 July 2014
Mr. Don O'Connor, Don O'Connor & Co Solicitors, Percival Street, Kanturk, Co. Cork
Mr. David Waters, Sullivan Waters & Co, Solicitors, 19 West End, Mallow, Co. Cork
The determination of the Tribunal was as follows:-
Unfair dismissal and minimum notice claims were lodged on behalf of a driver who had worked for the respondent for over six years. It was alleged that on 3 October 2012 his employment with the respondent was ended without oral or written notice. He had not received any oral or written warning. Constructive dismissal was claimed. He had driven a company vehicle when driving for the respondent but the keys to the said vehicle were not available to him on 3 October 2012.
On 2 November 2012 the claimant’s solicitor wrote to the respondent alleging that in early October 2012 the claimant had been suspended without notice, that this had not been explained to him and that the claimant’s job was now being done by a younger man. It was alleged that two others who had much less service than the claimant were still in full-time employment. It was acknowledged that TOC (the respondent’s principal) had offered the claimant a three-day week of factory work but it was alleged that the claimant had contacted JH (who ran this factory work) only to be told that there was no work available to him and that the factory was quiet. It was further alleged that JH had told the claimant that the work situation did not look good for him and that he should look for work elsewhere.
On 7 November 2012 the respondent’s solicitor wrote to the claimant’s solicitor that the claimant’s employment had not been terminated but that, owing to a business slowdown, there had been no driving work for the claimant work would be paid at €8.65 per hour and that there would be driving work for the claimant in early 2013 after the retirement of another driver.
In giving evidence, the claimant confirmed that his truck keys were unavailable when he arrived at the respondent’s yard at 5.00 a.m. on 3 October 2012. He was subsequently told to take holidays. TOC offered him a three-day week of factory work on the same money but he was subsequently told by JH that his hourly rate for factory work would be €8.65 (down from €10.50) and that things were not looking good. He got no further explanation then or since.
The claimant denied that there had been a slowdown saying that another man was driving his truck and that a youth he had trained was still working for the respondent. He denied ever having refused to work for the respondent but maintained that he had been told that he would be better off working elsewhere.
In cross-examination it was put to the claimant that his solicitor had first alleged that the claimant had been suspended (rather than dismissed). The claimant replied that this was what it looked like until JH told him to look elsewhere. He had no objection to working in the factory. When it was put to him that he had said that he was a driver he replied that he had said that he was taken on as a driver and that he did not know if other drivers were working in the factory. He had never seen this.
The claimant maintained that there was work there and another man was doing his job. He did not accept the contention that he would continue to receive his full pay. He felt that there had been a breakdown in employer-employee communication and that solicitors took over.
In giving evidence, TOC said that there had been a decline in work and that he had twice unsuccessfully tried to phone the claimant the night before 3 October 2012, One vehicle was being taken off the road. There was not work for the claimant as a driver. He could work in the factory. This was the best TOC could do. KM (another driver) was to retire at the end of the year. When the claimant left TOC had to rehire MB (a driver who had previously been made redundant).
Under cross-examination TOC accepted that the claimant’s truck keys were removed. He had wanted to speak to the claimant about work getting scarce but he maintained to the Tribunal that the claimant would get his full pay even if working three days on factory work, that the respondent had not wanted to get rid of the claimant and that it was a lie to say that JH had told the claimant that it did not look good. The respondent had put money into training the claimant who could have contacted TOC. TOC maintained that the claimant’s wages would not have gone down but that the claimant had not been interested in factory work.
In giving evidence, JH said that he felt that the claimant was not interested in factory work. He would arrive late and not in work attire.
Under cross-examination JH stated that TOC was the boss and that he (JH) and the other employees did what they were told. JH did not deny telling the claimant that things did not look great.
JH was asked if he could have said to the claimant that things were not looking good and to look for other work. He replied things had been quiet and challenging. One could not get the work done when people did not turn up. He did not know what was in the claimant’s mind. JH could not recall exactly what he said to the claimant and told the Tribunal that the claimant probably got him on a bad day. Things were quiet. It was hard to get money in. It would gall JH if someone arrived in late and casually. JH believed that the claimant was not interested in factory work from the word go.
The Tribunal carefully considered the evidence adduced.
The Claimant was upset by the manner in which he was being taken off truck driving duties. He received no prior notification. In fact, the keys to the truck had been removed from their normal location and hidden by the employer.
The Respondent’s Principal said he tried to notify the Claimant of his intention by trying to phone him the previous night. He was unable to contact the Claimant, but he did not leave a note for the Claimant, nor did he attend the workplace to meet the Claimant, nor did he defer his decision to take the Claimant off truck driving duties.
The claimant was subsequently offered alternative duties in a factory operated by the Respondent’s Principal. The evidence of the Respondent’s Principal was that this was a temporary measure and the Claimant would not suffer any loss in income as a result. However, the Manager of the Respondent’s factory told the Claimant that the future did “not look good”, and the Manager was also of the impression that the Claimant was to work in the factory at a rate of pay that was lower than that paid to truck drivers. Moreover, the Manager was annoyed by the attitude of the Claimant, who had arrived late and who he perceived disinterested in factory work. The Manager demonstrated his annoyance to the Claimant, informing the Tribunal that the Claimant “probably got me on a bad day”. It appeared to the Tribunal that Respondent’s Principal and Respondent’s factory manager were at cross purposes
The Tribunal notes the high threshold to be met for a claimant to consider his employment at an end. Considering the actions of the respondent and the claimant’s contribution, the Tribunal, allowing the claim under the Unfair Dismissals Acts, 1977 to 2007, finds compensation to be the appropriate redress to award and unanimously deems it just and equitable to order that the respondent pay the claimant the sum of €8,000.00 (eight thousand euro) under the said legislation.
The claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005, fails because the Tribunal did not find the Respondent to have committed a breach of that legislation.
Sealed with the Seal of the
Employment Appeals Tribunal