Case Number: ADJ-00006787. Workplace Relations Commission

• Docket Number: ADJ-00006787
• Date: 01 January 2018
• Court: Workplace Relations Commission
• Parties: Van Sales Driver v A Bakery

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00006787

Complaints:

ActComplaint/Dispute Reference No.Date of Receipt Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00009177-001 19/01/2017 Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00009177-002 19/01/2017 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 CA-00009177-003 19/01/2017 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 CA-00009177-004 19/01/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 CA-00009177-005 19/01/2017 Date of Adjudication Hearing: 13/4/2017 and 19/05/2017 Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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.

Background:

The complainant commenced employment on 8th of November 1999 and his employment ceased on 8th of October 2016. He was employed as a Van Sales person with a basic wage of €650 gross which with commission was on average €830.5 weekly and was engaged mainly on Route X delivering the respondent’s products.

Summary of Complainant’s Case - CA-00009177-001:

The complainant worked for 17 years with the respondent working mostly on Route X, a route of 250km which he developed to become a very successful route. On 7th June 2016 while finishing work he was requested by Mr A, the Depot Sales Manager to attend a meeting in a local hotel on 9th June 2016. He asked in advance what the purpose of the meeting was but was told they could not say. In attendance at the meeting was Mr A, Mr B Head of HR and Mr C another manager but they told him they were not ready for him and to come back. He returned a short time later and Mr A left to take a call. At the meeting Mr B told the complainant that the company were restructuring and that Route X, his route, would be leased out to an agent and therefore, he would be placed on a different route. The complainant was shocked by this and expressed how upset he was. He was told at the meeting that he did not own the run but was assured that any change in his working conditions would not happen for a number of weeks after consultation with him over which route he would move to. He advised that he left the meeting very angry. The next day 10th June he was horrified to find that when he presented himself for work, his route had been changed and he was allocated Route Y which is a distance of 60km versus 250km, therefore, significantly reducing his earning potential. He contacted his doctor for an appointment as he felt unwell and secured an appointment for Monday 13th June and his doctor certified him sick. He never returned to work. On 28th June while out sick, he wrote to the respondent through his solicitor advising that he wanted to return to work and was available for work and that the issues needed to be resolved. It took some time before a meeting could be arranged but a meeting was eventually arranged on 6th September 2017 and it was confirmed to the complainant that Route X was gone and he would be allocated another route. He was advised that he would be ring-fenced for a period of six months, which would result in no loss of income to him for this specific period. When the complainant raised his concerns about the manner in which the decision had been made, there was no answer forthcoming. The complainant also asked why he was not given the opportunity to take over the route and become the ‘agent’ but the respondent advised the decision was made. A letter was sent to the respondent on 22nd September 2016 detailing the complainant’s grievances including the loss of opportunity for future earnings due to the decision to lease the route to a third party and the conduct of the respondent in how his terms and conditions were changed and the unwillingness of the respondent to engage with him meant that their treatment of him amounted to unfair dismissal. The respondent replied on 29th September refuting this and thus due to the unreasonableness of the respondent the complainant felt he was left with no alternative but to commence employment with a competitor on 10th October 2016. On 14th November 2016 the complainant wrote to the respondent seeking compensation for his losses arising out of his dismissal but no compensation was forthcoming. Evidence given by a colleague Mr D, confirmed that agents had been engaged by the respondent but that it was unusual to engage an agent for a route as good as Route X . The complainant’s representative detailed that the complainant had raised the issue through detailed correspondence so many times such that it was a grievance but that regardless, in line with Stobart (Ireland) Driver Services Limited and Keith Carroll [2013] IHC581 the company cannot hide behind a failure by the complainant to invoke the grievance procedure if the respondent knew of the grievance which they did.

Summary of Respondent’s Case - CA-00009177-001:

The respondent outlined that the complainant worked mainly on Route X and that the respondent is continually striving to deliver its services in line with changing customer demands. The expectation is that staff must be flexible to take on additional duties or perform them in a different way to meet these demands. The complainant was invited to attend a meeting on 7th June 2015 with the Mr A, Mr B and another manager Mr C. The complainant was advised that they were restructuring and that Route X was being leased by the company to an agent. He was advised that he would be allocated a similar type of route and that his salary and commission would be ring fenced for six months. To their surprise the complainant did not engage in any meaningful discussions and used offensive language and made insulting remarks and said he would not attend work from Monday onwards. The following day Friday the changes that the complainant had been advised of were implemented and the complainant went out on medically certified sick leave for work-related stress from 13th June and never returned to work. On 28th June the complainant contacted the company to say that he was available for work and he was advised by Mr B that they wished to meet him again and discuss an alternative route. This meeting took place on 6th September 2016 and it was explained to the complainant the reason they leased out Route X and it was further reiterated that the respondent would ring-fence him for a period to ensure there was no loss of income. They were surprised at the manner in which the complainant rejected all their suggestions and the manner in which he questioned the decision making of the company. At the meeting of 6th September the complainant requested a redundancy package even though there was no redundancy situation and even if there had been, the company operate a LIFO policy such that the complainant would not have been impacted owing to his length of service. On 22nd September the complainant looked for compensation for what he claimed was the respondent’s refusal to reinstate him onto Route X. However, the respondent had never dismissed the complainant therefore, they were not in a position to pay him compensation. The respondent had made every efforts to engage in discussions around an alternative route but the complainant refused to do so and replied to this letter on 29th September 2016. On 14th November 2016 the complainant contacted the company advising that he had taken up alternative employment and detailed out his estimated losses. The company reiterated their position on 16th November and issued a P45 to the complainant as he had taken up alternative employment. Evidence from Mr B was that they did not get a chance to exhaust the process as it was clear that the complainant was not going to engage. He also outlined that it was because of performance issues that the decision was taken to outsource the route to an agent. It was confirmed that the complainant had not been disciplined in relation to such poor performance. Evidence from Mr A was that every effort was made to resolve the issue but that an agent is hungrier than an employee for sales and that this business decision was taken 2-4 weeks before the conversation with the complainant. It was outlined that issues had been raised in the past with the complainant regarding the need to add on additional calls on his route but that he would not engage with this request. The respondent detailed that they at all times acted within the contractual terms...