ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00058410
Parties:
| Complainant | Respondent |
Parties | Fernando Claassen | McElchar International Transport |
Representatives | complainant | Cleary & Co Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00070933-001 | 17/04/2025 |
Date of Adjudication Hearing: 09/06/2026
Workplace Relations Commission Adjudication Officer: Shay Henry
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant, Mr. Classen worked as a driver for the respondent company, McElchar International Transport. He alleges that he was dismissed due to his refusal to drive in excess of the legally permitted hours without rest. The respondent denies the allegation and contends that he walked off the job notwithstanding that the respondent offered evidence that he had not exceeded the permitted hours. The case was scheduled on four different dates and evidence was given by the respondent, Mr Philip McElchar, Owner, and Ms Miriam Kellegher, General Office Manager, under oath/affirmation on the third of these dates, 3rd March 2026. This evidence was subject to cross examination by the complainant. After the hearing was adjourned it was rescheduled for 9th June 2026. The complainant failed to attend the hearing and was written to subsequently to enquire if there was a justifiable reason for his nonattendance. No reply was received. I am satisfied that the said complainant was informed in writing of the date, time and place at which the hearing to investigate the complaint would be held.
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Summary of Complainant’s Case:
In his complaint form the complainant alleges that he was dismissed because he refused to drive in breach of regulations. The complainant did not give evidence at the hearing in this regard. |
Summary of Respondent’s Case:
On Monday 7th April 2025 the Complainant started work at 00.35 hrs and drove to Kerry and returned back to the yard on Tuesday 8th April 2025 at 19.11 hrs. The Complainant commenced work again on Wednesday 9th April 2025 at 19.37 hrs which showed a required weekly rest of 24hrs & 26 mins. The Complainant was advised on Friday 11th April 2025 of his work schedule for the weekend i.e. leaving Lisburn services and going to Larkhall, Scotland to load on Sunday 13th April 2025 departing Larkhall at 16.30 Hrs to catch the 19.30 Stena ferry to Belfast then back to the Respondent’s yard to have some of his load of fresh fish removed before going to Dublin to deliver the rest of his load on Monday morning and then parking at Lusk services to have his 11 hrs off before returning to the Respondent’s yard for his weekly 45hrs off. The Complainant called Philip McElchar (the owner of the company) on Sunday evening around 22.25 hrs saying his “Tacho” was showing him he was due a 45hr break in 2 hours’ time which was not correct. A print out from the computer showed he was not due a 45-hr break until Tuesday 15.04.2025 at 19.37 hrs. This was shown to the Complainant, and he was asked to finish his duties by taking the load to Dublin. At that point the Complainant stormed of saying, “I am finished, I am finished I am clearing all my gear out of the truck I am finished” and he left the loading bay. The Complainant proceeded to clear out his gear from the truck. The Respondent had no contact from the complainant on Monday14th April 2025 or Tuesday 15th April 2025. The Complainant then contacted the office on Wednesday 16th April 2025 and he was asked to call to the Office on Thursday 17th April 2025. At that point the Complainant was looking for his job back. However, given that he had clearly resigned, took his gear and stated “I’m finished”, the Respondent was obliged to employ another person. |
Findings and Conclusions:
In an unfair dismissal case the burden of proof is initially on the complaint to show that he was dismissed. In the case before me the complainant did not attend the hearing on 9th June 2026 which was the day on which he was due to give his evidence. I am satisfied that the said complainant was informed in writing of the date, time and place at which the hearing to investigate the complaint would be held. The complainant failed to attend the hearing and was written to subsequently to enquire if there was a justifiable reason for his non attendance. No reply was received. In these circumstances and in the absence of any evidence to the contrary having been adduced before me, I must conclude that the complainant has not been unfairly dismissed and I decide accordingly. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The complainant was not unfairly dismissed |
Dated: 24th September 2026.
Workplace Relations Commission Adjudication Officer: Shay Henry
Key Words:
Unfair dismissal, non-attendance by the complainant, evidence given by the respondent |