ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00009626
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | A Haulage Company |
Representatives | Myles Gilvarry Gilvarry & Associates | Ronnie Lawless IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00012523-001 | 15/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00012523-002 | 15/07/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00012523-003 | 15/07/2017 |
Date of Adjudication Hearing: 10/04/2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 79 of the Employment Equality Acts, 1998 - 2015, andfollowing the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Respondent is a haulage business which was set up in 1994 with two drivers. The Respondent became a limited company in December 2001. Subsequent expansion of the business over the years has resulted in the current position where the Respondent now employs 35/40 drivers and services 130 clients throughout Ireland.
The Complainant was one of the two initial drivers when the company started in 1994. The Complainant worked as a driver and, for over 14 years, combined his driving a role with the planning of deliveries for other drivers. |
Summary of Complainant’s Case:
Background: The Complainant stated that, in September 2015, he was informed by the Respondent that an external consultant was being engaged to conduct a review of the business. The Respondent stated that the consultant commenced his meetings with individual drivers in October 2015 and over the following two months contacted all drivers and spoke with them.
The Complaint stated that his consultation with the consultant took place on 8 December 2015, when he was interviewed over the phone. The Complainant stated that he provided the consultant with a number of ideas and was told that he would receive a further call after Christmas. However, the Complainant stated that he had no further interaction with the consultant.
According to the Complainant's evidence, he was contacted by the Respondent in early January 2016 and informed that the transportation element of his job was being advertised internally and externally, with a closing date for applications of 29 January 2016. The Complainant did not apply for the job for a number of reasons, including: the fact that the consultant did not contact him until 8 December 2015 and the fact that he was the last person to be contacted. The Complainant also stated that the Respondent's decision to take the office phone from him on 3 September 2015 was also a factor in his not applying for the job.
The Complainant further stated that on 28 March 2016 he was informed by the Respondent that an appointment had been made to the advertised position. The Complainant stated that the Respondent provided him with a letter stating that he would continue in a driving role only but that his salary would remain as it was.
According to the Complainant's evidence, when he returned the phone to the office he was informed by the Respondent that he was too old for the job. The Complainant worked on, in his sole role as a driver, until August 2016 when he developed heart problems, which required the fitting of stents and was also diagnosed with sleep apnoea. The Complainant was on certified sick leave from 8 August 2016 to 30 October 2016. The Complainant states that despite being certified to return to work and to drive HGV’s by both his cardiologist and the consultant treating him for the sleep apnoea, he was not allowed to return to work.
The Complainant stated that he then engaged a solicitor, who raised his grievance with the Respondent on a number of occasions. However, according to the Complainant, despite this, the Respondent made no valid effort to allow him to return to work. He stated that it was unreasonable of the Respondent to leave him out of work for nine months, without pay, while making no attempt to address his grievance. Consequently, the Complainant stated that he had to consider himself as dismissed. According to the Complainant's complaint form, his employment with the Respondent ended on 3 July 2017.
Complaint CA-00012523-001: Discriminatory Dismissal and Failure to provide Reasonable Accommodation on the grounds of Age and Disability.
With regard to his complaint on the age ground, the Complainant stated that he was discriminated against in this regard when the Respondent told him in early 2016 that he was too old for the job. He further contended that he was discriminated against on the age ground when, what he regarded as "his job" was offered to a man in his 30s.
With regard to his complaint on the disability ground, the Complainant contended that he was always fit and able to do his job despite his disability. He claimed that he produced medical evidence that his disability did not prevent him from driving. However, despite this, the Complainant claimed that the Respondent was determined to get rid of him by refusing any reasonable accommodation in this regard.
The Complainant stated that the Respondent used the excuse of the difficulty they had getting insurance for him as a means of getting rid of him. According to the Complainant, he could have done a managerial/organisational job but the Respondent made no attempt to make any accommodation for him.
The Complainant contended that the Respondent's conduct was so unreasonable as to render him constructively dismissed. The Complainant claimed that the Respondent never contacted him while he was off sick, never enquired as to his health, despite the fact that he had been an employee for so many years.
Based on the above, the Complainant requested that he be awarded the maximum compensation for these breaches of the Employment Equality Act.
Complaint CA-00012523-002: Penalisation under Employment Equality Act, 1998.
Evidence presented by the Complainant refers to a letter, dated 19 January 27, from his solicitor to the Respondent. In this correspondence, it is stated that, in the absence of proposals to make reasonable accommodation for the Complainant, a complaint would be made to the Workplace Relations Commission under the Employment Equality Acts.
In his complaint, the Complainant stated that, as a result of this threat to make a complaint to the WRC, the Respondent penalised him by not allowing him back to work.
Complaint CA-00012523-003: Penalisation under Organisation of Working Time Act, 1997.
This complaint was withdrawn by the Complainant's legal representative at the oral hearing.
Complaint CA-00012523-004: Hours of Work
Likewise, the complaint in relation to excessive hours was also withdrawn at the oral hearing. |
Summary of Respondent’s Case:
Background: The Respondent stated that, prior to 2016, the Complainant worked part-time as a transport planner along with his driving duties. In 2015, the Respondent engaged a consultant to do a review of the business and advise on areas that needed improvement. When the consultant's report issued on 22 December 2015, it proposed the creation of a full-time, office-based transport planner/manager. According to Respondent this proposal was underpinned by the continual expansion of the business, which resulted in it no longer being feasible to manage the transport element of the business on a part-time basis.
The Respondent stated that, on the basis of the consultant’s proposal, a full-time position for a Transport Manager was advertised in January 2016. The Respondent stated that the advertisement was placed with a number of recruitment agencies and that it was also advertised internally with all drivers receiving individual letters inviting applications for the role. The Respondent stated that, while applications were received from internal drivers and external candidates, the Complainant did not apply for the position.
According to the Respondent's evidence, once the new appointee took up the new full-time role, the Complainant was no longer needed to perform this part-time duty. Consequently, the Respondent stated that the Complainant’s duties were solely as a driver from then on and these changes, which did not include any change to salary, were notified to the Complainant, by way of letter dated 28 March 2016.
The Respondent stated that the Complainant went on sick leave due to hypertension on 8 August 2016. According to Respondent, the Complainant provided medical certificates up to 31 October 2016. The Respondent stated that, on 1 November 2016, the Complainant advised that he was fit to return to work and provided a medical certificate confirming that he was fit to drive heavy goods vehicles. The Respondent stated that the Complainant's medical certificate also referred to his medical history of sleep apnoea.
In evidence, the Respondent stated that as the Complainant was a HGV driver, they contacted their insurance brokers on 1 November 2016 to make sure that he was still covered under the company's motor insurance policy.
According to the Respondent, their insurance brokers notify them on 2 and 8 November 2016 that they were unable to provide further cover for the Complainant due to his medical condition. The Respondent further stated that on 16 November 2016 they contacted their insurance broker again and requested them to look for an alternative insurance policy to cover the Complainant. The Respondent stated that, on 20 December 2016 they received a reply from their brokers saying that they were unable to obtain any insurance even on a single policy basis to cover the Complainant. The Respondent stated that they updated the Complainant in relation to the situation on 29 December 2016.
The Respondent stated that they received a letter from the Complainant’s solicitors, dated 19 January 2017, requesting them to make reasonable accommodation for the Complainant. The Respondent stated in evidence that, on receipt of the correspondence from the Complainant's solicitors, they contacted their own solicitors who, on 25 January 2017, wrote the insurance broker on their behalf advising that the Complainant’s solicitor was suggesting a breach of the Equal Status Acts by the insurers.
The Respondent stated that, despite these representations, it was not possible to acquire insurance, on an individual/single policy basis, for the Complainant. However, the Respondent stated that upon renewal the overall fleet insurance in June 2017, they were notified by their insurance brokers that the insurers were happy to provide cover for the Complainant, if his medical conditions, especially sleep apnoea, were accepted by the Irish Licensing Authority and that the conditions were endorsed on the Complainant's driver’s license.
According to the Respondent's evidence, they wrote to the Complainant, by way of letter dated 15 June 2017, advising that once his licence had been updated with the relevant endorsements, they would forward same to the insurance brokers. However, the Respondent stated that the Complainant failed to provide the evidence which would lead to the Respondent sourcing the necessary cover on the insurance policy.
Complaint CA-00012523-001: Discriminatory Dismissal and Failure to provide Reasonable Accommodation on the grounds of Age and Disability.
In response to this element of the Complainant's complaint, the Respondent denied making any comment in relation to the Complainant age. On the contrary, the Respondent stated that they always tried to reduce the Complainant’s workload in order to make sure he was comfortable and fit to perform his duties.
The Respondent stated that, prior to 2015, the Complainant delivered three loads himself and organised the driver planning at the same time. According to the Respondent, as the business grew, it was too much for the Complainant to coordinate all deliveries and continue to deliver loads himself. In order to make sure the Complainant had enough time to organise the deliveries and to take enough rest periods, the Respondent reduced his driving requirements from 3 to 2 loads per day and allowed him to use the extra time for delivery planning.
The Respondent stated in evidence that, during the years of business expansion, the Complainant was requested, on three separate occasions, to come off the road and manage the planning from an office. However, the Respondent stated that the Complainant refuse to accept these offers.
According to the Respondent, before the reduction in the Complainant's workload, he was paid €180 per day for three delivery runs and the driver planning. When the Respondent reduced the delivery runs to 2 per day, the payment rate of €180 per day was maintained. Consequently, the Respondent contends that while the Complainant’s workload and working time had reduced, his wages remained the same.
The Respondent stated that, in 2015, after the business review had been completed and a full-time, office-based Transport Manager had been appointed, the Complainant continued to be paid at the rate of €180 per day even though he was no longer coordinating deliveries.
In evidence, the Respondent stated that, in 2016, the Complainant, at age 62, was one of five drivers aged above 60. In further evidence, presented at the oral hearing, the Respondent evidenced a current employee who is still working/driving at age 65. The Respondent stated that it would not be possible for the Respondent to make a comment to the Complainant that he was too old, when other drivers continue to drive over the age of 62.
The Respondent restated that the only reason the Complainant could not return to work was because the insurance brokers could not find insurance cover without his medical conditions being approved by the Road Safety Authority (RSA).
Consequently, the Respondent stated that they never discriminated against any employee by reason of age, or any of the other discriminatory grounds.
With regard to the Complainant's complaint on the ground of disability, the Respondent stated that it was not disputing that he had a disability as defined by the Employment Equality Acts.
In addition, the Respondent stated that it does not dispute that sleep apnoea is a disability. In this regard, the Respondent pointed out that sleep apnoea is listed under the RSA’s diseases/disabilities which need to be reported on application for renewal of a driving licence. The Respondent stated that it is clearly the Complainant's responsibility to report his medical condition. It further contended that, in the absence of the endorsement, the insurance companies are not allowed to provide insurance policy for the Complainant. The Respondent stated that this was the only reason why the Complainant did not return to work.
Therefore, the Respondent denies any discrimination by reason of disability. The Respondent then responded to the Complainant's complaint in relation to the provision of reasonable accommodation. The Respondent stated that in the previous 12 months, as the business had continued to grow, a second person had come on board to work alongside the Transport Manager. It was stated in evidence that both individuals, require HGV licenses and insurance as they needed to be available to do relief driving, if and when required.
The Respondent stated, in evidence, that they had explored all possible office positions and tried to accommodate the Complainant's medical conditions. However, the Respondent stated that a HGV licence and insurance are a requirement for all staff, the only exception being two office-based employees who work exclusively on the accounts/payroll.
According to the Respondent's evidence, in the absence of the Complainant’s endorsements with the licensing authority, it was impossible to secure insurance cover for him. Consequently, the Respondent contended that there was no available position in the company that could possibly accommodate the Complainant in the context of his medical conditions.
In support of their argument in this regard, the Respondent referred to the case of Hegarty Metal Processors (Intl) Ltd v Kieran Byrne (EDA 1437). Based on the Labour Court decision in this case, the Respondent contends that there is no statutory obligation on an employer to provide alternative work. The Respondent further stated that it relies on the Court decision in that case where it states: "the statutory obligation is to provide reasonable accommodation to undertake the work for which the Complainant was employed".
In response to the complaint of discriminatory constructive dismissal, the Respondent referred to the definition of constructive dismissal set out in Section 1 of the Unfair Dismissals Act 1997. In this regard, the Respondent made specific reference to the burden of proof placed on an employee when pursuing a claim of constructive dismissal. In particular, the Respondent referred to the established principles, adopted by Tribunals and the Courts with regard to (a) termination of a contract of employment by virtue of a demonstrated breach of contract on the part of the employer or (b) termination of the contract of employment by virtue of the unreasonableness of the employee's behaviour such that continuation of the employment contract was intolerable, to the extent that it was reasonable for the employee to resign.
The Respondent contended that neither of these criteria have been met in the Complainant's case and, therefore, he cannot claim constructive dismissal.
The Respondent contends that the first time it became aware that the Complainant considered himself dismissed, was when he made his complaint to the WRC, in July 2017. However, the Respondent pointed out that the Complainant never raised a grievance internally with the company. The Respondent contends that, in the case of constructive dismissal complaints, there is a high burden of proof on an employee to demonstrate that they acted reasonably and had exhausted all internal procedures formal or otherwise, to resolve the grievance in advance of claiming constructive dismissal. In support of this argument, the Respondent referred to 2 cases: (1) McCormack v Dunnes Stores (UD 1421/2008) and (2) Conway v Ulster Bank (UD 474/1981).
The Respondent stated that the Complainant was never dismissed after he went on sick leave. On the contrary, the Respondent stated that they actively sought solutions to cover the Complainant under their insurance policy. However, the Respondent pointed to the Complainant's failure to engage in his application to the licensing authority as the reason for his "out of work" status.
In support of their submission in this regard, the Respondent referred to the case of Ms C v A Community Care Centre for People with Disabilities (DEC-E2012-200). The Respondent referred to the Tribunal’s findings in that case, which was that the employer was entitled to avail of the Section 16 defence as the employee was not fully competent, capable or available for work. The Respondent made specific reference to the Tribunal's findings in that case that the employee's failure to engage with the employer’s reasonable attempts to accommodate them, resulted in her claim for discriminatory dismissal failing.
Complaint CA-00012523-002: Penalisation under Employment Equality Act, 1998.
In response to this element of the Complainant's complaint, the Respondent denied any penalisation or victimisation.
The Respondent referred to the definition of victimisation as contained in the Employment Equality Acts. In addition, the Respondent referred to the burden of proof placed on the Complainant to establish a connection between the action and the alleged victimisation. The Respondent stated that this means the Complainant is required to establish that "but for" this action, he would not have suffered the alleged detriment.
The Respondent contends that the Complainant did not establish the connection between the action of "threatening a complaint to the WRC” and the alleged penalisation of "not being taken back to work".
In light of the remaining complaints been withdrawn at the oral hearing, the Respondent’s submissions in relation to these was not heard.
In relation to the standing complaints, the Respondent concluded by stating that every possible step had been taken to accommodate the Complainant's conditions. However, due to the Complainant's non-cooperation under licence endorsements, the Respondent had no control over the insurers’ refusal to provide insurance cover for him.
The Respondent stated that there has been no discrimination because of the Complainant's age or disability. On the contrary, the Respondent stated that they actively sought alternative insurance policies to cover the claimant to allow him to return to work.
The Respondent stated that the Complainant never raised a grievance internally under the company’s grievance policy.
Based on the above, the Respondent requested that all complaints be dismissed. |
Findings and Conclusions:
Having carefully considered all the evidence adduced, it was possible to establish the following facts pertaining to the details of the complaints:
· Up to the end of 2015, the Complainant carried out the dual roles of truck driver and deliveries planner.
· Following a review carried out by an external business consultant, which concluded in December 2015, a new, full-time role of Transport Manager was created and this role was to replace the part-time deliveries planning role carried out by the Complainant.
· The new role of Transport Manager was advertised in early 2016 both externally and internally within the company, with all drivers, including the Complainant, receiving written invitations to apply. The Complainant did not apply for the new role. The appointment of the new Transport Manager was made in March 2016.
· By way of letter dated 28 March 2016, the Complainant was advised that, with the appointment of the new Transport Manager, he would now be concentrating solely on driving and would not have any further responsibility in relation to delivery planning. The Complainant was also informed that the rest of his terms and conditions, including salary, remained unchanged.
· From April to August 2016, the Complainant continue to work for the Respondent in the role of truck driver.
· The Complainant was on sick leave from 8 August 2016 to 31 October 2016, having been diagnosed with heart problems, which required the insertion of stents and also with sleep apnoea.
· In November 2016 the Complainant provided the Respondent with a medical certificate from his doctor, confirming his fitness to return to work and to drive heavy goods vehicles.
· Between November 2016 and January 2017, the Respondent engaged in a series of communication with their insurance brokers with regard to getting motor insurance cover for the Complainant. The outcome of this was that it was not possible to get insurance cover for the Complainant either as part of the Respondent’s fleet insurance or through a single insurance policy. The matter was then deferred, by the insurers, until the renewal of the fleet insurance, which was due to take place in June 2017.
· By way of letter dated 12 June 2017, the Respondent’s insurance brokers advised that the insurers were now willing to provide cover for the Complainant on the basis that he (the Complainant) would provide evidence that the licencing authority had accepted both his medical conditions.
· The Respondent advised the Complainant of this development by way of letter dated 15 June 2017. The Complainant was informed that once he had updated his licence with the required endorsements same would be forwarded to the insurance company to arrange cover. However, the Complainant did not respond to the Respondent and, as of 3 July 2017, considered himself as having been constructively dismissed.
Against the background of the above established facts, I proceeded to consider the various aspects of the Complainant's complaints as follows:
Complaint CA-00012523-001: Discriminatory Dismissal and Failure to provide Reasonable Accommodation on the grounds of Age and Disability.
I find the Complainant failed to provide evidence to support his contention that he was discriminated against on the grounds of age. The Complainant had based this element of his complaint on two factors. Firstly, he contended that the Respondent informed him, in March 2016, that he was "too old for the job". While I note the denial by the Respondent that such comments were made, of more significance, from the perspective of the Complainant's complaint, is the fact that the Complainant continued to work as a driver for the Respondent up to August 2016.
This clearly demonstrates that the Respondent had no issue the Complainant continuing in his role as a driver. In addition, the Respondent opened the new position of Transport Manager to all existing employees, including the Complainant. While the Complainant's decision not to apply for the position is noted, the fact that the Respondent was clearly willing to accept an application from him for the position undermines any contention that the Respondent considered the Complainant too old for the position.
The second factor put forward by the Complainant in support of his contention that he was discriminated against on the grounds of age relates to the fact that the new position of Transport Manager was offered to a candidate in his 30’s. As already stated above, the Complainant was free to apply for the position but chose not to do so. Consequently, in such circumstances, the age of the successful candidate cannot be construed as evidence of age discrimination.
Consequently, taking all of the above into consideration the Complainant's complaint that he was discriminated against on the grounds of his age is not upheld.
The second element the Complainant's complaint of discrimination related to alleged discrimination on the grounds of his disability. In this regard, the Complainant contends that the Respondent failed to give reasonable accommodation in relation to his disability.
Having carefully considered all the evidence adduced in relation to this element of the Complainant's complaint, it is clear that it relates directly to the issue of the provision of insurance cover which would allow the Complainant to return to work in his role as a heavy goods vehicle driver. This followed a period of illness during which he had been diagnosed with and treated for sleep apnoea and had stents inserted to address a cardiac issue.
As is set out above, the evidence presented clearly shows that the Complainant was certified, in November 2016, by his various doctors, as being fit to return to work and to drive heavy goods vehicles. It is clear that the Respondent accepted and had no issue with this certification. However, the Respondent's insurers refused to provide insurance cover for the Complainant either by way of inclusion in the fleet policy or on a separate single policy.
The evidence adduced in this regard clearly shows that, during the months of November 2016 to January 2017, the Respondent engaged in a series of communication and interactions with their insurance brokers in an effort to resolve the problem and obtain insurance cover for the Complainant. The evidence shows that this communication also involved correspondence from the Respondent's own solicitors to the insurance brokers with a view to trying to resolve the problem. However, despite all of these efforts, the Respondent failed to secure insurance cover for the Complainant.
Evidence presented by the Respondent, in support of their position in this regard, included a letter dated 20 December 2016 from their insurance brokers in which it is recognised that the Respondent was “keen to ensure that the above employee [i.e. the Complainant] had access to driving”. This clearly demonstrates that the Respondent’s intention was to acquire insurance cover for the Complainant and that this had been clearly conveyed to the insurance brokers. Against this background, I do not accept the Complainant’s contention that the Respondent did not do enough to ensure that insurance cover was acquired or that they failed to challenge their insurers in this regard. At the end of the day, the decision in this regard lay with the insurers and not with the Respondent.
It is further clear from the evidence presented that the Respondent, through their solicitors, made the insurance brokers aware of the Complainant’s contention that their failure to provide insurance cover for him was, in effect, a breach, by them, of the Equal Status Acts. Notwithstanding this, the evidence presented by the Respondent clearly demonstrates that the insurance company were still not willing to provide insurance cover for the Complainant.
On the basis that they could not acquire insurance cover for the Complainant, the Respondent was clearly not in a position to allow him to return to work as a HGV driver. The Complainant remained out of work until June 2017 when, on the renewal of the Respondent’s fleet insurance, the insurance company advised that they were willing to provide insurance cover for the Complainant, subject to his medical conditions being endorsed onto his driver’s licence. However, the Complainant failed to comply with these conditions and resign from his employment on 3 July 2017.
The Complainant’s complaint with regard to reasonable accommodation relates to the period between November 2016 and June 2017, during which he contends that the Respondent should have provided him with alternative, office-based work, while the issue with his insurance cover was being resolved. In submissions made by the Complainant’s legal representative, subsequent to the oral hearing, significant emphasis was placed on the judgement of the Court of Appeal in the case of Nano Nagle School v Daly [2018] IECA 11.
In his submission, the Complainant’s legal representative stated that, as the Complainant’s original duties included those of organisation and booking of deliveries, it would be entirely reasonable for the Respondent to make a reasonable accommodation by placing him in that position while they procrastinated over what they would do in relation to the third-party discrimination against the Complainant by the Respondent’s insurers.
Based on the findings set out in the earlier part of these considerations, it is clear that the position of Transport Manager had become a full-time position in early 2016. Clearly, as this position was now filled by somebody else on a permanent full-time basis, it was no longer open to the Respondent to merely return the Complainant to that position. In addition, in the five months prior to his departure on sick leave in August 2016, the Complainant had been operating in the sole role of HGV driver. Consequently, it was, in that role, that the Respondent had to consider the Complainant’s return to work and also the provision of reasonable accommodation.
I have given careful consideration to the case law referred to by the representatives of both the Complainant and the Respondent when making their submissions. In particular, given the extent of the Complainant’s legal representative’s submissions made subsequent to the oral hearing, I have given serious consideration to the judgement in the Nano Nagle School case. However, having done so, I am not satisfied that it supports the Complainant’s case in this regard, as the Court of Appeal found that the Labour Court’s and the High Court’s construction of Section 16 of the Employment Equality Act 1998, with regard to the obligations imposed on an employer were incorrect.
Consequently, taking all of the above into consideration I am satisfied that the Respondent took all reasonable steps open to them to persuade their insurers to provide insurance cover which would have allowed the Complainant to return to work as a HGV driver. I am further satisfied, based on the evidence adduced that the opportunity to return the Complainant to the role of transport planning was no longer open to the Respondent, without removing others from their particular roles.
Therefore, I find that the specific accommodation being sought by the Complainant was not feasible and, in that context, it cannot be construed that the Respondent failed in their obligation with regard to reasonable accommodation.
The final element of the Complainant’s equality complaint relates to the contention that the Respondent discriminated against him by dismissing him for discriminatory reasons. In expanding on this aspect of the complaint, the Complainant stated that he was not allowed to return to work after a period of illness and, as a result, was out of work without pay for nine months. The Complainant stated that the Respondent failed to address his grievance and, given this unreasonable behaviour, he considered himself dismissed.
Having carefully considered all of the evidence adduced in this regard, I find nothing to support the view that the Complainant was in fact dismissed. On the contrary, the evidence clearly shows that it was the Complainant who, in effect, terminated his employment. Consequently, the complaint of discriminatory dismissal amounts to a complaint of constructive dismissal.
Constructive dismissal relates to a situation where an employee terminates their contract of employment, as was the situation in the case at hand. Section 1 of the Unfair Dismissal of Act, 1977, defines such a dismissal as follows: “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,” Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy the dual tests of (1) Breach of Contract and (2) Reasonableness. 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. However, it is now also generally understood that an employee must act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. All other reasonable options including grievance procedures must be explored. The reasonableness test requires that the Complainant must satisfactorily demonstrate that the Respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in their employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing, the Complainant must also show that their action/behaviour in resigning was reasonable in all the circumstances. This is regularly referred to as the mirror image concept. The application of these tests to the case in hand does not support the Complainant’s allegation that he was constructively dismissed. Firstly, no evidence was presented by the Complainant to suggest that a breach of contract had taken place. With regard to the reasonableness test, while it is clear that the Complainant considered the Respondent’s failure to bring back to work as unreasonable, the evidence clearly shows that the reason the Complainant was not brought back to work was clearly and solely linked to the Respondent’s inability to obtain insurance cover, which was necessary to allow him resume his role as a truck driver.
As has already been referred to above, the Respondent made significant efforts to source insurance cover. However, the resolution of this matter lay with independent third parties and was outside the Respondent’s immediate control. Consequently, I am satisfied that it would be both unfair and unreasonable to apportion the blame to the Respondent for the failure to source insurance cover.
I also note that, when the matter was eventually resolved, at the point in time of the annual renewal of the Respondent’s fleet insurance, the Complainant failed to engage with the Respondent in having the matter resolved. At a point in time when compliance with the not unreasonable and not onerous conditions set down by the insurance company would have facilitated his return to work, the Complainant considered himself dismissed and terminated his contract. In a context where the Respondent’s compliance with the requirements of the insurance company would have resulted in his return to his role as a HGV driver, the Complainant’s decision to resign instead can only be considered as unreasonable.
Consequently, taking all of the above into consideration I find the evidence does not support the Complainant’s complaint of constructive dismissal and, as a result, his allegation of discriminatory dismissal is not upheld.
Complaint CA-00012523-002: Penalisation under Employment Equality Act, 1998.
The Complainant contends that the Respondent’s refusal to allow him back to work with directly related to a comment contained in his solicitor’s letter, to the Respondent, dated 19 January 2017. In this letter it was stated that failure to make reasonable accommodation for the Complainant would result in an application being made to the Workplace Relations Commission under the Employment Equality Acts.
As can be clearly seen from the findings set out earlier, the fact that the Complainant was out of work for nine months was directly and solely related to the Respondent being unable to source insurance cover which would allow the Complainant resume his position as a HGV driver. The issue in relation to the insurance cover arose as early as 2 November 2016 when the Respondent’s insurance brokers first advised that the insurance company was unwilling to provide cover for the Complainant to drive any of the Respondent’s vehicles.
Given that the statement in relation to the potential application to the WRC under the Equality legislation was contained in the letter of 19 January 2017, it is clear that there is no causal link between the alleged penalisation and the comments contained in the aforementioned letter.
Consequently, taking all of the above into consideration, I am fully satisfied that the fact that the Complainant remained out of work for nine months was directly related to the Respondent’s inability to source insurance cover which would have allowed him back and was not related to the statement in relation to making application to the WRC.
Therefore, I find the Complainant’s complaint in this regard is not upheld.
Complaint CA-00012523-003: Penalisation under Organisation of Working Time Act, 1997 and Complaint CA-00012523-004: Hours of Work
As these complaints were withdrawn at the oral hearing, by the Complainant’s legal representative they were not considered for decision. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 79 of the Employment Equality Acts, 1998 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Having carefully considered all the evidence adduced and based on the considerations/findings as detailed above, my decisions in relation to the various aspects of the Complainant’s complaints are as follows:
Complaint CA-00012523-001: Discriminatory Dismissal and Failure to provide Reasonable Accommodation on the grounds of Age and Disability.
The Complainant’s complaints under this heading were not upheld.
Complaint CA-00012523-002: Penalisation under Employment Equality Act, 1998.
The Complainant’s complaints under this heading were not upheld.
Complaint CA-00012523-003: Penalisation under Organisation of Working Time Act, 1997 and Complaint CA-00012523-004: Hours of Work
No decision issued as these complaints were withdrawn at the oral hearing.
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Dated: 25th July 2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Employment Equality Age Discrimination Disability Discrimination Reasonable Accommodation Penalisation |