UD1088/2012, RP831/2012, MN699/2012, WT302/2012

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Mr P. O’Leary BL

Members:     Mr N. Ormond

                     Mr P. Trehy

heard these claims at Dublin on 14 November 2013

Representation:

Appellant:

                    Mr Pat Reidy, Reidy Stafford Solicitors, Moorefield Terrace,

         Newbridge, Co. Kildare  

Respondent:

         Ms Nicola Hogan BL instructed by Mr Brian O’Meara,

         O’Meara & Co. Solicitors, 3 Colonel Perry Street,

         Edenderry, Co. Offaly

The determination of the Tribunal was as follows:

Dismissal as a fact being in dispute it fell to the claimant to prove that he had been dismissed. There was also a preliminary issue as to whether the claimant met the requirement of 12 months’ continuous employment in order to institute a claim under the Unfair Dismissals Acts.

The claimant who previously worked in the motor trade had premises, adjacent to his residence, which had been used for that purpose. These premises were rented out to a third party.

The respondent’s main line of work is in the provision of school bus services in both Offaly and Kildare in concert with and with approval from Bus Eireann. The claimant began work for the respondent as a school bus driver around the beginning of the school year in September 2010. It was common case that the employment was for 38 weeks per year with those weeks when schools were on holiday treated as periods of lay-off.

When the respondent approached the claimant towards the end of August 2011 about the new school year which was to begin on Monday 29 August 2011 the claimant was unwilling to return to work on the existing terms to the extent that he did not drive the bus that day. During the morning of 29 August the claimant phoned the respondent, “ate some humble pie” and agreed to return to work which he did the following day. In consideration of this the respondent agreed to pay the claimant an extra €20-00 per week for allowing the respondent to park a second bus at his premises. The respondent’s position was that by not driving the bus on 29 August 2011 the claimant had broken his service at that point and that the start date of employment for consideration in respect of the within claims was 30 August 2011.

During the night of 7/8 February 2012 the Gardai mounted a raid on that part of the claimant’s premises which had been rented out. It seems that evidence of clandestine illegal activity was discovered and as a result the claimant was detained by Gardai pursuant to their enquiries into the activities at the premises. It was common case that early in the morning of 8 February 2012 the respondent received a phone call, made at the behest of the claimant, in which the respondent was informed that the claimant would be unable to drive the bus that day. The respondent arranged for a driver from Offaly to drive the claimant’s run with the respondent stepping in as spare driver to cover the Offaly drive sent to Kildare. This arrangement continued the following day.

The claimant was released by the Gardai in the evening of 9 February 2012. He phoned the respondent the following morning and after some difficulty getting through to the respondent, who accepts that he had mislaid his phone, spoke to the respondent at around 10-30am. The claimant’s position was that during this conversation he had told the respondent that he was ready to go back to work but the respondent had told him that another driver had been hired as while the respondent did not know what had been going on he had heard that the claimant had been arrested and did not want to jeopardise his contract with Bus Eireann who may have thought that the claimant did not meet the requirement of being of good repute. The claimant accepts that he requested his P45 at the end of this conversation.

The respondent’s position was that when he asked the claimant for an explanation of what had happened the claimant said “I suppose you don’t want me back” he had displayed an abrupt manner and ended the conversation by saying “just forget about it and send me my P45”. The respondent accepted that he had concerns for the reputation of his business in regard to the nature of the discovery at the claimant’s premises.

A replacement driver was hired through a radio advertisement the following week.

Determination:

The Tribunal is satisfied that the events of 29 August 2011 did not amount to a break in service of the claimant. Accordingly, it follows that he did have the requisite service in order to pursue the claim under the Unfair Dismissals Acts.

There is a conflict of evidence between the parties in regard to the content of the phone conversation on 10 February 2012. Whilst it was perfectly reasonable for the respondent to have concerns for the reputation of his business the Tribunal notes that at no time did the respondent attempt to visit the claimant’s premises in order to attempt to conduct his own enquiry into what had happened in the early hours of 8 February 2012. On the balance of probability the Tribunal cannot be satisfied that a dismissal did not occur. It follows that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds. Noting that the preferred remedy of the respondent was reengagement and despite the claimant’s reluctance in this regard the Tribunal orders that the claimant be reengaged from the date of communication of this determination to the parties. The period from 10 February 2012 until then is to be treated as a period of unpaid suspension thereby preserving the claimant’s continuity of service.

Claims under the Unfair Dismissals Acts and the Redundancy Payments Acts being mutually exclusive the claim under the Redundancy Payments Acts, 1967 to 2007 must fail.

The claimant having been awarded reengagement with continuity of service a claim under the Minimum Notice and Terms of Employment Acts, 1973 to 2005 does not arise.

No evidence having been adduced in this regard the claim under the Organisation of Working Time Act, 1997 must fail.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)