EMPLOYMENT APPEALS TRIBUNAL
Stobart (Ireland) Driver Services Limited
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 C. Corcoran B.L.
Members: Mr. J. O'Neill
Mr P. Trehy
heard this claim at Dublin on 4th January 2016 and 23rd February 2016
Claimant: Mr John Scott BL instructed by Howard Synnott, Solicitors, Ballyowen Castle, Ballyowen Shopping Centre, Lucan, Co Dublin
Respondent: Purdy Fitzgerald, Solicitors, Kiltartan House, Forster Street, Galway
The claimant gave direct evidence that he commenced working for the respondent company in February 2011. He was employed as a driver and drove an articulated truck. He told the Tribunal that he suffered an injury to his back while making a delivery in August 2012. He contacted a manger in the depot informing her of his injury and requested assistance. However he received no assistance and was told to return the truck to the depot yard. He subsequently attended a spinologist but continued to work as he could not afford to take time off work. He took a personal injuries action as a result of his injury, and gave evidence that his working relationship with the respondent deteriorated from then.
He gave evidence that in May 2013 he was driving his vehicle on the Dublin to Cork motorway when he came across his work colleague who had been involved in a serious accident. He lent assistance to his colleague, comforting him. He contacted the emergency services and when the Gardai arrived he was told to stay at the scene of the accident as he was a witness. He gave evidence that he was treated disgracefully by the respondent and was instructed to leave the fridges on his truck on, and to continue and make his delivery which he subsequently did. When he returned to the depot he made a statement to the company. He believed that he should have been offered counselling and been given time off work but he was offered neither. He was forced to drive the same route five days later, a task he did not want to perform. When he informed a manager (LP) that he was treated disgracefully he was invited to a meeting. However no satisfactory outcome emerged from the meeting and he believed that the only matter investigated was the fact that he had a conversation with (LP).
He subsequently raised a number of grievances in July 2013, September 2013, and January 2014 concerning rosters, shift patterns (to allow for adequate sleep) and driver representatives signing agreements without his consent. He told the Tribunal that these grievances were never adequately addressed. He attended his doctor on 4 October 2013 and provided a medical report to the company stating that he was suffering from acute stress related to work issues. As a result of this he attended a meeting on 10 October 2013 and was represented by his union representative. In that regard a copy of a letter dated 17 October 2013 from the company, outlining the matters discussed was opened to the Tribunal.
The claimant raised a further grievance in February 2014 regarding being forced to undertake shunting duties. He told the Tribunal that he was unable to carry out those duties as a result of his injuries suffered in August 2012. He refused to undertake those duties and attended a training session on shunting duties simply to prove to the company that he could not carry out the duties. He had never been required to carry out shunting duties in the previous three years working for the company. It was his understanding that if he did not carry out shunting duties he would be sacked. He was subsequently asked by a manager, (BD) to carry out shunting duties. He decided that he could no longer remain with the company and was advised by his doctor to leave or he would become seriously stressed.
He resigned from his employment on 3 July 2014 and gave evidence to the Tribunal of his efforts to mitigate his loss. He has worked for a number of employers and has been in full time employment since 19 January 2015. Evidence was provided to the Tribunal that his total loss amounts to €8,500.
Under cross examination the claimant confirmed that he took up alternative employment on 4th July 2014 having resigned from the respondent on 3rd July 2014. However he denied that the reason he left the respondent was to take up this other employment and that the claim before the Tribunal was opportunistic.
It was put to the claimant that the General Manager (SD) had contacted him while he was at the scene of the accident on 24th May 2013 and that she first enquired as to how GH and the claimant were. It was not until later on that SD enquired as to whether the truck fridges were being kept on. The claimant confirmed that this was true, despite having previously said that the first thing SD enquired about was the fridge and that he suffered memory loss when he was under stress. The claimant felt that he should have been brought home with GH that day but instead he was told to carry on and complete his delivery.
The claimant also felt that he should have been offered counselling and/or time off following the accident on 24th May 2013 as he was at the scene shortly after it occurred and he was the person who went to the car containing the fatality to see was there anyone else inside it.
The claimant felt that GH and he were very badly treated by the company in the aftermath of this accident and that it was from thereon that he began to feel he could no longer work for the respondent. He confirmed that he was asked on several occasions if there was anything the company could do for him but he told the Tribunal that the word counselling was never used.
There were a number of issues raised as grievances by the claimant up to the date of his resignation and each was the subject of meetings between the claimant (accompanied by his union representative) and the respondent. Each issue was responded to in writing and the claimant confirmed that he did not appeal the outcome of any of these grievances.
The penultimate grievance raised by the claimant before he resigned was in relation to being forced to do “shunting training”. The claimant had undergone this training under protest and after having done so a letter issued from BD stating that the claimant was not required to carry out shunting duties. The claimant confirmed that he was never rostered to do shunting duties nor was he ever asked to do these duties by BD or DM. However the claimant maintained that he was asked by another manager (G) but that he told G that he was exempt from these duties and referred him to BD’s letter. The claimant did not shunt on that day or any other day. The claimant accepted that this grievance was in relation to being forced to do shunting training and not being actually asked to carry out shunting duties.
The final grievance raised by the claimant was in relation to a phone call made by him at 15:51 to a particular employee in the Ballymun Depot (J) enquiring as to the claimant’s start time for the next day. J was unable to give him a start time at that point and asked him to ring back later. However when the claimant rang the Donabate depot 6 minutes later at 15:57 another employee (S) could tell him that his start time next day was to be 06:45. This grievance was submitted by the claimant on 18th June 2014 and although he had resigned in the meantime he agreed that this grievance had been dealt with by way of letter dated 10th July 2014.
The claimant contended that he no longer had any faith or trust in the respondent and that he had no choice but to resign on 3rd July 2014. He told the Tribunal that he had been advised by his doctor that continuing to work for the respondent would damage his health but that the decision to resign was his own.
The respondent addressed issues and grievances that had arisen since the accident of 24th May 2013 which were as follows.
- The investigation by the respondent into a conversation between the claimant and a manager (LP) on 31st May 2013 regarding the road traffic accident with GH on 24th May 2013.
- Grievance by the claimant dated 4th July 2013 in relation to when drivers should be notified of their shift for the next day.
- Grievance by the claimant dated 3rd September 2013 in relation to being asked to attend work earlier than his rostered start time.
- Letters from claimant’s doctor, first one dated 4th October 2013 stating that the claimant was suffering from acute stress, related to work issues.
- Grievance by the claimant dated 17th January 2014 concerning non-elected driver representatives.
- Grievance by the claimant dated 25th February 2014 regarding being forced to undertake shunter training.
- Grievance by the claimant dated 18th June 2014 concerning phone calls made by him on the previous day enquiring as to his start time on 18th June 2014.
The Transport Manager for the respondent (BD) gave evidence in respect of the grievances at numbers 2, 3 and 7 above. All of these grievances were dealt with by way of meetings between the claimant together with his union representative and BD along with a note taker. BD referred to the minutes of these meetings and how the grievances were handled. On each occasion the claimant was written to with a conclusion and was informed of his right to appeal. The claimant did not appeal the outcome of any of these grievances. The grievance at number 7 above was concluded after the claimant had left the employment.
DM for the respondent gave evidence in respect of his involvement in dealing with the issue at number 4 above and the grievance at number 6 above.
In relation to number 4 BD told the Tribunal that the doctor’s letter of 4th October 2013 had been left on his desk by the claimant and that he reported this to HR and held a meeting with the claimant and his union representative in relation to this letter. The purpose of this meeting was to see if the company could do anything to address the stress being felt by the claimant. The minutes of this meeting were referred to by this witness and it was stated that the claimant was asked 4 times if there was anything the company could do for him. The claimant requested that holiday forms be signed off on promptly and BD undertook to look into this issue. The claimant also told BD that he just wanted to be left alone to get on with things.
There was no request made by the claimant to have counselling and BD had no further contact with the claimant in relation to stress issues.
BD agreed that the claimant had participated in shunting training under protest and a grievance in respect of this was dealt with by him. A meeting was held with the claimant and his representative in relation to this and it was decided that although the claimant had been forced to do the shunting training he would not be scheduled for shunting duties because of a back injury he had suffered at work in 2012.
The claimant was never scheduled for shunting duties nor was he ever asked to perform those duties by BD or DM. BD could only surmise that G had forgotten that the claimant was exempt from shunting and asked him to carry out this task. The claimant did not perform shunting duties on this occasion or at any other time.
An assistant Transport Manager for the respondent (LP) gave evidence in respect of his conversation with the claimant on 31st May 2013 about the accident of 24th May 2014. LP told the Tribunal that the claimant made serious allegations against the company regarding how he was treated in the aftermath of this accident. The claimant had alleged that the first thing he was asked by the General Manager (SD) when she phoned him was “are the fridges still on”. The claimant alleged that he was on the scene of the accident and nobody seemed to be bothered. LP referred the matter to his line manager (CB) and had no further involvement in the matter.
The General Manager for the respondent (SD) told the Tribunal that she was phoned shortly after 2am on 24th May 2016 by the Duty Manager and informed of the accident involving GH in which there had been a fatality. SD was aware that the claimant was at the scene of the accident and spoke to him on the phone a number of times immediately after the accident. However SD categorically denied that the first question she asked of the claimant was about the fridges and she told the Tribunal that her first concerns were for GH and the claimant.
SD was asked about the procedure regarding accident report forms and she stated that the claimant was not required to fill out the accident report form as he was not involved in the accident and had arrived on the scene 11 minutes after it had happened (according to the satellite tracking system fitted to the lorries). SD believed that GH had checked the car involved in the accident to see if anyone else besides the fatality was in it. It was put to SD that the claimant would say that it was he and not GH who checked the car and SD said she would find that strange as 11 minutes had elapsed before the claimant arrived at the scene.
GH was given a week off after the accident and was offered counselling. However he wanted to come back to work after the week off.
The claimant was not offered time off but SD believed there was an offer of “anything we can do”.
A meeting took place between the claimant together with his union representative and the then Transport Manager for the Respondent (CB) on 12th June 2016 and the minutes of this meeting were referred during the hearing. CB wrote to the claimant on 18th June 2013 informing him that CB had concluded her investigation and had decided not to proceed any further in relation to this matter.
Dissenting opinion (P. Trehy)
The Claimant came across a serious road traffic accident while delivering to Cork.
He went to assist the Driver a Colleague and also went to the other Vehicle involved and found the person who was driving that car to be fatally injured.
He rang Emergency Services and when Garda arrived he was told to stay at the scene of the accident.
He received a call from Management and what stuck in his mind was a reference to ensure the fridges were kept on in his vehicle and deliver the goods and return back to Dublin.
The finding of a person dead in a crashed car had an effect on the claimant.
He felt the Company threated him badly by not given assistance or be referred to attend a consultant to assist him overcome such a tragic event.
He felt the way the Company handled the whole episode showed the Company cared little for any of their staff.
On 31st May 2013 the claimant was discussing the accident in the Donabate Depot.
He made reference to the other driver and to how he felt the Company had treated him.
Reference was also made regarding SD and her comments about keeping the fridges turned on and not enquiring to the wellbeing of the driver involved in the accident.
The Acting Operations Manager LP was concerned that reference was made regarding the General Manager and reported this matter to his Direct Line Manager.
The Transport Manager called for an Investigation Hearing in Ballymun Depot on 12th June 2013 which could have led to a disciplinary hearing.
A request was made for a copy of any statements made by S.D. regarding her conversation with the Claimant.
They were advised that they did not have S.D.’s statement.
During the course of the Hearing the Employee Representatives stated “This is where the Company fell down in the Policies they never assisted the Driver for shock. Asking are you OK is not sufficient. He should have been assessed also he was never offered counselling and he certainly should not have been asked to continue with the run to Cork or wherever that location was.
The Claimant advised that he checked the other vehicle to see if there were children in the car. He stated after that he went back to his Truck and was sick. It was an awful sight.
There was no accident report handed into the Tribunal by any party.
The claimant was advised by letter dated the 18th June 2013 that the Company would not be proceeding any further with the matter, stating that they wanted to inform him that the company had taken on board a number of concerns that he had raised during the meeting and would be looking in to these matters further with the aim of improving the Procedures surrounding Accidents of this nature.
In August 2012 he contacted the manager and told her he had injured his back while making a delivery and requested assistance. He received no assistance and was told to return the truck to the depot yard.
He attended a Spinologist but continued to work as he could not afford to take time off work.
He also took a Personal Injuries Claim as a result of this injury and also gave evidence that his working relationship with his employer deteriorated from then.
The claimant had other grievances with the Company.
In relation to start times for each shift and the delivery of the next shift the question of adequate rest period and ensuring drivers should be coming back refreshed as this could lead to driver fatigue if not properly rested.
The Employee Rep stated that this matter was before the courts and stated he could not understand how they would not recognise the determination and recommendation of the LRC.
Another grievance was shunting where the claimant had suffered an injury which was accepted that he has a medical problem which was confirmed as a disc problem in his neck and shunting could exacerbate the problem by continuous repeated twisting of the neck.
The company medical advisors stated there is a discrepancy between the provided description of shunting driving and the claimants own description.
The company wrote to the medical advisor re clarification of further driving.
The opinion given was it may be worth ensuing that Driving Instructor observe the claimants work to ensure that his work is within the recommended guidance.
Furthermore it was to be kept in mind that this man does have a confirmed disc problem in his neck and if repeatedly or continuously twisting on neck or head on truck it will cause difficulties.
Another grievance was seeking start times and the claimant’s opinion was that the manager had an issue with giving start times to him. As another manager he called 3 minutes later supplied him with the information required.
The claimant medical advisor wrote to the company on numerous occasions regarding the state of his health and that he was suffering from acute stress and requesting if the company would see if modification of his working practise might be possible to help his situation.
These issues were never addressed by the company.
The company stated on numerous occasions they had a duty of care to all their staff.
This was not evident to the claimant who had 2 two major incidents at work.
- When he had an accident
- When he came across this horrific accident.
There was no offer of help or assistance from the company to ensure that his wellbeing would be looked after.
These grievances were handled in an adversarial manner rather than problems which should have been handled in a much more conciliatory way on foot of his Doctors many requests.
The Claimant was of the opinion that if he did not do the shunting he would be sacked.
His decision not to remain with the company was based on medical opinion which was that he would become seriously stressed.
The Respondent had a duty of care to ensure that the mental health of the Claimant was protected and assistance should have been given after such a horrific accident.
The Company stating that it had learned from this indicates the failure on their part.
I firmly uphold the Complainants claim that he was unfairly dismissed.
The claimant lost all confidence and trust in the company. The workplace became a very negative and hostile place to work. The company seriously fell down in its duty of care to this employee. His continued employment with the company would be detrimental to his health and he had no alternative but to resign from the company. The unreasonable actions of the company show clearly that all trust and confidence with the company was gone.
I uphold the claimant’s claim of Constructive Dismissal.
Having considered the totality of evidence adduced in this case, and bearing in mind that on its facts it is one of constructive dismissal, and accordingly the onus of proof is on the claimant to establish that he was unfairly dismissed, and having regard to the sentiments already expressed above, the Tribunal by a majority decision, finds that the claimant has not established the onus of proof required, to establish his case. Constructive Dismissal is a matter for the Tribunal to decide.
In making our decision the Tribunal notes that:
1. As already stated this case is one of constructive dismissal and places a heavy onus on the claimant.
2. The grievances tendered by the claimant in these matters were not appealed. Grievance Number 7 dealing with phone calls made by claimant relating to starting times on the 18th of June 2014 had concluded after he had left the company.
3. The evidence tendered by the respondent and in particular tendered by SD, was more credible than that tendered by the claimant.
4. The respondent had enquired from the claimant –“was there anything it could do for him” or words to that effect, without qualification, and that would have by implication included counselling.
5. The respondent acted reasonably in the circumstances.
6. Under cross-examination the claimant confirmed that he took up alternative employment on the 4th of July 2014 having resigned from his job with the respondent on the 3rd of July 2014.
7. Under cross-examination it was put to the claimant that the General Manager (SD) had contacted him while he was at the scene of the accident on the 24th of May 2013 and that she first enquired as to how GH and the claimant were, and that it was not until later on that SD enquired as to whether the truck fridges were being kept on. The claimant confirmed this was true, despite having previously said that that the first thing SD enquired about was the fridge, and that he suffered memory loss when he was under stress.
8. The claimant in resigning under the circumstances as outlined in this case did not satisfy the “Contract Test” or the “Reasonableness Test”
In making its decision the Tribunal is mindful of the following statutory provisions and case law.
Section (1) of the Unfair Dismissals Act 1977- “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.”
In relation to the “Contract Test”- Western Excavating v Sharp – 1978 ICR 221 “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or does something to show that he no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. The conduct must “------ be sufficiently serious to entitle him to leave at once -----.”
In relation to the “Reasonableness Test” -Conway v Ulster Bank Ltd., UD 474/1981: In this case the employee resigned his position without fully engaging with the company’s grievance procedures in order to resolve his difficulties. In the circumstances the Tribunal found that his resignation was unreasonable. His claim for constructive dismissal failed.
In relation to “Constructive Dismissal” - onus/burden of proof - Healy v Credit Card Systems Ireland Ltd. UD 148/2003. – In this case it was held that the burden of proof on the employee is quite onerous in such cases as the claimant must prove not only that his or her employer’s behaviour was unreasonable, but also that his or her response in resigning was reasonable.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
As the claimant left without giving notice to the respondent there can be no obligation on the respondent to pay the claimant in lieu of notice. Furthermore the claimant suffered no loss as he took up alternative employment immediately after leaving his employment with the respondent.
Accordingly the claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 fails.
Sealed with the Seal of the
Employment Appeals Tribunal