ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00003964
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012
Date of Adjudication Hearing: 12/07/2017 and 06/02/2018
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012, following 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.
The complainant contends that the respondent breached the Regulations governed by Statutory Instrument S.I. No. 36/2012 and that he was constructively dismissed from his employment.
Summary of Complainant’s Case:
The complainant made extensive written and oral submissions summarised as follows:
He started working as a full time bin lorry driver on 27th March 2003 and there was a transfer of undertakings to the present employer on 22nd August 2011. From the start of his employment transfer he had problems with heavy workload and longer working hours. He brought this to the attention of the Transport Manager, who promised to reduce the workload. However, this was never done. After two months of inaction on his complaint, the complainant decided to leave some tasks incomplete for health and safety reasons. He was subjected to disciplinary action by the respondent employer in 2012. A written warning was issued to the complainant on 9th October 2012. The complainant sought records from the employer and the right to verify the accuracy of these records himself, as he did not accept the veracity of them. The employer refused his requests and in May 2013 he was invited to another investigation meeting. Management promised to furnish him with the material evidence he requested but did not do so. In June 2013 Management exchanged his route with another colleague. The new routes were going smoothly until gradually it grew again to a heavy workload. The complainant had to again leave some work undone. He submits that he had to do so for his health and safety, that he brought the matter to management’s attention who did nothing to alleviate the situation, and that he always informed management when he could not complete tasks. Fresh disciplinary procedures were taken against him for failure to obey legitimate management instructions and serious neglect of duty. He was issued with a final written warning. At this stage the complainant raised a grievance against his work conditions which he deemed intolerable. He had requested the material evidence used to find him guilty of misconduct but this again was not given to him. He received a letter of suspension dated 18 April 2016. On 20 April 2016 he raised a formal grievance. On 22 April 2016 he was told of his dismissal and that his P45 and holiday pay would reach him by post on 25 April 2016. Instead, he received an acknowledgement of his grievance on 29 April 2016 and that his dismissal was put on hold to allow his grievance to be heard. In the end, after many grievance meetings, his grievance was ruled unfounded and a 2nd final written warning was issued to the complainant on 22 July 2016. The Management main focus then shifted to getting the complainant back to work for the appeal process. After a long saga, the management did send the complainant a fraction of the material documents requested e.g. minutes of meetings and some non-computer generated print-out of daily work details. The complainant contends that the materials provided are not accurate and were falsified. The complainant wrote to management calling into question the reliability and trustworthiness of all the material documents. Management refused to check their veracity. After the complainant exhausted all the internal grievance and disciplinary procedures coupled with the fundamental breach of his contract of employment he was forced to resign his employment on 27 August 2016.
Summary of Respondent’s Case:
The Company argues that there is no foundation to either of the complainant’s claims. The complainant resigned his employment of his own volition without exhausting the company grievance procedures. The complainant was a Domestic RCV Driver whose employment was transferred to the respondent in August 2011. In the transfer of undertakings the respondent received disciplinary documents from the previous employer which related to conduct issues from June 2011 similar to those which arose in his time with the respondent. In October 2012 the complainant was issued with a written warning for 12 months for similar offences (not completing his runs). There were also continued issues with him not completing his designated runs, starting his route late and taking longer than the standard time to empty each bin. His route was revised in November 2015 to accommodate him leaving out a section on the Monday run that he had issue with. Despite this, the complainant began to leave out a different part of the route and not collect bins in that area. This amounted to 18 bins not collected on 30 November 2015 and 36 bins not collected on 14 December 2015. On 3 December 2015 the complainant did not complete his collections and did not inform his line manager, leaving 57 bins not collected, as a consequence of which an extra truck had to be despatched the next morning. Disciplinary action was invoked resulting in a first written warning on 22 January 2016 to stay on his file for 12 months. The complainant did not exercise his right to appeal. Despite this warning, and the fact that the complainant’s run had been specifically adjusted to suit him, he continued to not complete his run in February 2016 resulting in the same group of customers having their collections delayed, which represented a serious possibility of losing these customers. Following a lengthy period of investigation and disciplinary process, during February, March and April 2016, during which the complainant failed to attend some meetings, and meetings were re-arranged to suit him, the complainant was issued with a final written warning on 5 April 2016. Both prior to this date and after it the complainant again left dozens of bins uncollected and the lack of service was impacting upon customers and other staff. On 12 April 61 bins remained uncollected and another driver had to cover after he completed his own work. On 15 April 2016 an investigation meeting was held and the complainant failed to respond or engage in the meeting. At this meeting, the complainant was informed that he was being suspended with full pay pending the disciplinary hearing. A disciplinary hearing was held on 22 April 2016 at which the complainant finally engaged, stating that he was “sick of being asked the same questions” and stated that the hours were too long and that he was too tired to complete his runs. On return to the office from this meeting, it was found that the complainant had mailed in a formal letter of grievance. The complainant stated that the long hours were having an affect on his mental wellbeing and proposed that his daily routes be cut down and be rerouted to allow him do 40 hours a week. The company responded on 29 April stating that if he had informed them of his grievance they would have postponed the disciplinary hearing and that the disciplinary process was now being put on hold pending the grievance process. Up to 5 grievance meetings were arranged / held with the complainant (the fifth he did not attend) between May and July 2016. The complainant was furnished with maps, documents, records illustrating how his run could be completed. On 21 July 2016 the outcome of the grievance was that it was unfounded. The complainant appealed the outcome but before the appeal could be heard the complainant resigned his employment. It is argued that the company acted totally and completely reasonably and in fact, went beyond in an attempt to get the complainant to fulfil his basic duties. Indeed it was the conduct of the complainant in this case which was unreasonable by not attending multiple scheduled meetings, refusing to participate in the process and then refusing to return to work when his grievance was determined to have been unfounded. In light of the definition of constructive dismissal, and the burden of proof, the complainant’s case should fail.
Findings and Conclusions:
Section 1 of the Unfair Dismissals Act 1977 (as amended) provides for the definition of constructive 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”
As established by case law, there is a burden of proof on the employee to demonstrate that the actions and conduct of the employer were so unreasonable that it was reasonable for the employee to terminate his/her employment.
In this instant case, having examined the evidence and submissions I find as follows:
The complainant has had a long history of failing to comply with management instructions to finish his bin collections, leaving customers with no service on many occasions. The management of the company has gone to great lengths to accommodate the complainant with modified runs and numerous meetings to address his grievances. He was subject to disciplinary action and I find no breach of procedures or natural justice in the way the company handled this. The complainant resigned his employment at a time when the company was arranging his appeal of the grievance outcome and, not unreasonably attempting to have him return to work following a lengthy period of paid suspension. In this instant case, I find that the respondent company did not act unreasonably in the treatment of the complainant employee and I do not uphold his claim of unfair dismissal.
Neither side provided cogent arguments in relation to the complainant’s claim that the respondent acted in breach of The EC Road Transport Regulations (S.I. 36/2012) and it may be a moot point as to whether the Regulations apply to bin truck collectors. I note the respondent did make this point that the Regulations do not apply. However, for completeness, I find as follows:
Regulation 18 of the EC Road Transport Regulations 2012 (S.I. 36/2012) provides that a complaint may be made that the employer has contravened Regulations, 5,8,10,11 or 12.
The complainant in his complaint form stated “I perform mobile transport activities and my employer will not provide records when required”. The complainant also stated that he was compelled to work beyond his written contract working hours.
These two complaints relate to Regulation 12 and Regulation 5 respectively. Having examined the evidence and submissions, I find that the respondent has provided records and is not in breach of Regulation 12. In relation to Regulation 5 which governs the maximum working hours, I find that the complainant’s contractual hours were 40 hours per week, after which overtime was to be paid.
Regulation 5 provides:
“5(1) Subject to any derogation under Article 8 of the Directive, a person performing mobile road transport activities shall not exceed –
- A working time of more than 60 hours a week
- An average weekly working time of 48 hours in any reference period”
In this instant case, the complainant has made some serious allegations regarding the veracity of the respondent’s records which I do not accept. I have examined the records of the respondent and I note the average weekly working hours for a period submitted as 47.35 hours. I do not uphold the complainant’s complaints in relation to breach of the Road Transport Regulations S.I. 36/2012.
For the reasons cited above, the complainant’s complaints are not upheld.
Workplace Relations Commission Adjudication Officer: Gaye Cunningham