EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Christopher Robinson -appellant
against the recommendation of the Rights Commissioner in the case of:
Johnston Logistics Limited -respondent
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr R. Murphy
Mr. J. Dorney
heard this appeal at Dublin on 27th August 2014
Appellant: Mr. David Boughton B.L. instructed by Keans, Solicitors,
Unit 3, Griffeen Centre, Lucan, Co. Dublin
Respondent: A number of witnesses were present on behalf of the company.
This appeal came before the Tribunal by way of an employee (the appellant) appealing against a Rights Commissioner’s Recommendation under the Unfair Dismissals Acts, 1977 to 2007 (reference: r-129208-ud-12/JC.)
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced in the course of this oral hearing. The appellant makes the case that he was constructively dismissed in circumstances where his working hours were being interfered with to such an extent that he believed he could no longer be expected to perform his duties.
The appellant started his work with the respondent company in 2005. The appellant had come to the company with a background in logistics and it appears to be common case that the appellant had great ability and experience in logistics and was a valued employee and his employer’s acknowledged that he had garnered great respect amongst the workforce.
By 2012 the appellant worked an early morning shift commencing at 7am until 4pm. These hours particularly suited the appellant who spent the afternoons minding his granddaughter in ease of his own daughter.
The appellant worked in accordance with his contract of employment, which said contract was updated in response possibly to updated legislative requirements and obligations to include certain matters in contracts of employments. It certainly seems to the Tribunal that the contract of employment of the 3rd of August 2012 was a more fulsome document than its predecessor.
It was argued by the appellant that the clause relating to hours of work introduced the concept of night work which had heretofore not been included in the contract of employment. A comparison of both contracts certainly seems to bolster this observation. In addition it is noted that the issue of overtime which had recently become an issue in the workplace was included in the August 2012 contract if only for the purpose of confirming that overtime would be paid at a flat rate as a cost-saving measure.
The evidence adduced and largely uncontradicted was that during the course of 2011 and 2012 the company was being forced to respond rapidly to a changing economic environment and in particular they lost many of their larger clients who opted to move their warehouse and distribution centresback to the U.K. as cost-saving measures.
The Warehouse Manager on behalf of the respondent indicated that there had been a number of redundancies. He gave evidence to the effect that the customers’ demands moved to making orders later in the day than heretofore. Gradually, there was an expectation that orders could be placed after 6pm and sometimes right up to 10pm.
At management level the decision was taken to change the work patterns in the warehouse to meet the external demands. Fluidity and flexibility were required. In consequence of this decision, management called a meeting with all the staff and explained that a new system of shifts would be implemented which would see the latest shift run until 10pm at night. This concept was met with general dissatisfaction and the Warehouse Manager on behalf of the respondent company accepted that no one was happy with this proposed change in working patterns and there was general antipathy towards the proposed 2pm to 10pm shift being introduced. Nobody was volunteering for same.
Although the company does not generally operate a rota system this suggestion was made to the workforce but there was unanimity amongst the workforce to reject this option. Consequently, the management had to make a call on who to place on which shift. In selecting each person for each shift the management claims it was objectively driven and decided in the best interests of the company.
The appellant was very disappointed when it became apparent that he was being selected to work on the 2pm to 10pm shift. There was no monetary gain to the appellant and it would interfere with his family obligations (although it is noted that the fact that he minded his grandchild was not universally known in the workplace). The appellant genuinely felt that he had been selected for this shift as a punishment for his general vocalness and in particular his recent brush with the labour relations body on the issue of overtime. The appellant noted that he was the longest serving member of warehouse staff and therefore should not be selected for this post.
The company was emphatic in its insistence that the appellant was selected for this late shift because of his skill and experience and because he could operate without the backup of an open office.
The warehouse operative working hours were published by general notification on the 2nd October 2012. The appellant initiated a grievance procedure which was heard on the 12th October. The outcome of this meeting was a refusal on the part of the company to change its decision - citing that the changes best suited company requirements.
A right of appeal to a more senior member of staff was availed of and the Logistics Manager heard this. The outcome of this meeting was significant in that, although the appellant would be expected to take up the 2pm to 10pm shift in the immediate future there was a proposal that by April 2013 certain identifiable operatives could be trained up and given the relevant experience to be ready to take over the 2pm to 10pm shift thereby allowing the appellant return to his previous hours.
The Tribunal accepts that this suggestion contained in the letter of the 31st October was not as clear cut as it might have been but it was certainly intended to provide some comfort to the appellant and the Tribunal accepts that it was open to the appellant to engage with this suggestion with the view to obtaining a definite proposal fromhis employer. In evidence the Logistics Manager states he saw the proposal as an “opening of the door” and allowed the company start their change in shift pattern with the best people in the most significant positions with a view to ironing out any start up difficulties which may occur.
Whilst the appellant did acknowledge that there was an intended “review” in April 2013 he did not make any overtures with respect to this suggestion and instead opted not to attend the workplace for the first of his 2pm to 10pm shifts as scheduled.
The Tribunal does not accept that there was a history of mala fides and obstinacy on the part of the respondent company such that the appellant could assume that the proposal would not be implemented and anyway in circumstances where the appellant simply refused to engage with the respondent company the outcome can never be known.
The tribunal finds that there was no constructive dismissal and the appellant was unreasonable in leaving his workplace without opening up the appropriate conversation with respect to the introduction of shift work. The appeal under the Unfair Dismissals Acts, 1977 to 2007, fails. Accordingly, the Tribunal upholds the Recommendation of the Rights Commissioner (reference: r-129208-ud-12/JC.)
Sealed with the Seal of the
Employment Appeals Tribunal