EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD816/2014
CLAIM OF:
Martin Smith
- Claimant
against
Bus Eireann T/A Bus Eireann-Irish Bus
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. McAveety
Members: Mr. J. Goulding
Mr. O. Nulty
heard this claim at Cavan on 28th October 2015
Representation:
Claimant: Ms. Laura Tenneyson BL instructed by: Mr James Donohoe, James M Donohoe & Co, Solicitors, Drumfarn House, Railway Rd, Cavan Co. Cavan
Respondent: Ms. Jerri Ward BL instructed by: Mr Hugh Hannon, CIE Solicitors, C/O Colm Costello, Bridgewater House, Bridgewater Quay, Islandbridge, Dublin 8
The determination of the Tribunal was as follows:-
Background:
The claimant was a Bus Driver firstly in a part-time capacity from 1988 and then in a full time capacity from 2000. In 2000 he signed a contract stating his terms and conditions of his employment. He was based in Cavan driving the bus route from Cavan town through Navan on to Dublin.
On the 22nd December 2004 he was assaulted while working for the respondent in Navan town. He attended the local hospital and was certified absent from work on sick leave. The assailant was arrested and in 2008 was found guilty and given a suspended sentence. The claimant lodged a personal injuries claim against the respondent for injuries sustained while working for them.
The claimant attended his own doctor and the respondent’s Chief Medical Officer (CMO) on numerous occasions over the subsequent years. In December 2006 the CMO deemed him fit to return to work. The respondent requested he attend retraining before resuming his duties. The claimant attended the familiarisation course wearing a bullet proof vest and riot gear. He attended for two days then submitted a certificate stating he was unfit to return. Correspondence crossed between the claimant and respondent regarding alternative routes for him to consider.
In March 2007 the CMO found the claimant had “no specific underlying medical condition” and recommended he be offered an alternative route to operate than the location in where he was assault had taken place. In November 2007 the CMO deemed the claimant fit to resume work and stated a review should be arranged for four months time. A review before the CMO never took place.
Despite numerous correspondence between the claimant, his solicitor and the respondent no meetings were attended and no alternatives routes for the claimant to operate were discussed or agreed. The claimant still refused to drive through Navan. The claimant did not return to work.
The High Court personal injuries case was set for the 13th February 2014. The matter settled between the claimant and the respondent company. The following day, the 14th February 2014, a letter was sent to the claimant to terminate his employment.
Respondent’s Case:
The Manager of Operations (KMP) and a former Bus Driver Trainer (TMK) gave evidence on behalf of the respondent.
KMP stated he had been the Service Area Manager in the region the claimant had worked. He took over the post from his predecessor (KF) in 2007.
The contract of employment signed by the claimant in 2000 was opened to the Tribunal. KMP brought the Tribunal’s attention to point 4 of the contract – “Work Location. You will be required to work in any location designated by the company.”
KMP told the Tribunal that when he took up his post in 2007 he contacted the claimant by telephone regarding his situation. He then wrote to the claimant on the 26th September 2007 suggesting alternative full-time and part-time routes the claimant could consider. The claimant replied stating his return to work was “without prejudice to my grade, seniority or grade.”
On the 15th November 2007 KMP wrote to the claimant asking him to report to his office on the 19th November 2007 to discuss his situation. The claimant did not attend the meeting but wrote to him on the 17th November. The claimant’s solicitor wrote to the respondent on the 21st November 2007.
In March 2008 the person who assaulted the claimant was found guilty and given a suspended sentence. KMP wrote to the claimant to request an update on his situation regarding returning to work. The CMO had deemed him fit to return to work in November 2007. The claimant replied that the situation remained the same.
On the 18th February 2009 KMP wrote to the claimant enclosing copies of previous correspondence. He requested the claimant attend a meeting at his office on the 27th February 2009 to discuss his return to work. Again the claimant did not attend.
On the 5th March 2009 KMP again wrote to the claimant again advising him he could not continue to cover his duties indefinitely and asked him to attend his office on the 23rd March 2009. The claimant replied on the 9th March 2009 stating his solicitor was dealing with the matter and he should contact him.
KMP told the Tribunal that at this point he felt the claimant had frustrated his contract and he wanted to terminate his employment. However, having received advice from the respondent’s legal team he did not proceed with it, the High Court personal injuries case was still pending.
The personal injuries case was set for hearing on the 13th February 2014, however, the parties – the claimant and respondent- settled the matter. The following day, the 14th February 2014, a letter to terminate the claimant’s employment was sent to him.
On cross examination KMP told the Tribunal that the claimant’s employment was terminated due to him frustrating his contract. He agreed this was not stated in the letter of termination. KMP said that he had tried to get the claimant back to work but to no avail. The claimant felt he did not want to return to work. He would not even attend meetings to discuss the issue.
TMK gave evidence. The claimant attended part of the familiarisation course in January 2007. On his first day the claimant arrived wearing a stab proof vest, riot head gear and carrying a baton of some kind. The claimant told TMK he would not drive around the Navan area. TMK told the Tribunal that he assured the claimant that they would not be driving that far. The claimant did not attend on the third day and TMK was advised he, the claimant, had attended his doctor and was not medically fit to return.
On cross examination TMK said he had delivered correspondence to the claimant’s home on behalf of the respondent. The claimant had told him not to return to his home on company business again. When asked, he said he was not shocked to see the claimant arrive for the training in riot gear as he had heard previously the claimant had acquired it.
When put to him that he had told the claimant on the third day of the training that they would be driving to Navan the following day he replied that he had not.
Claimant’s Case:
The claimant gave evidence. He explained that he and another driver had worked a rotating route from Cavan, to Dublin and Athlone. They had come to an agreement that he would drive the run to Dublin and his colleague would drive to Athlone. Management were aware of the agreement.
The claimant gave a detailed account of previous incidents and the incident on the 22nd December 2004 with the person who was later charged with the assault. Gardai were aware of the incidents that had occurred prior to the 22nd December 2004. Following this assault the claimant sustained not only physical injuries but more damaging physiological effects on his health. He commenced a lengthy period of sick leave. He attended his own doctor and the respondent’s CMO on numerous occasions. The CMO recommended he not drive through the Navan area.
The claimant told the Tribunal that KF, the previous Service Manager to KMP, had not engaged with him regarding alternative routes to Navan. However KF had visited his home unannounced with TMK in December 2006.
He attended the re-training course in January 2007 and had worn a protective outfit. He explained that he had not returned to finish the course as TMK informed him they would be driving through Navan. He attended his doctor and was certified suffering from Post-Traumatic Stress Disorder (PTSD).
The claimant told the Tribunal that when he received the letter from KMP dated the 26th November 2007 suggesting alternative full-time and part-time routes he felt this full-time suggested work would be an attempt to transfer him from the location he had always worked and the part-time work was a demotion and a decrease in salary. He would not agree to either. No other alternative offers were made to him.
In November 2007 the CMO deemed him fit to return to work with a review of this intended four months from that date. He never attended the CMO again.
In February 2008 KMP wrote requesting an update. The claimant responded. The next correspondence he received was in February 2009. The claimant’s solicitor replied.
The claimant told the Tribunal that his employment was terminated one day following the settlement of his personal injuries claim against the respondent. He was not given any right to appeal the decision.
The claimant gave detailed evidence of his loss of earnings.
On cross examination he stated he had not been given any explanation why his employment had been terminated. When asked what was his current position regarding operating bus routes he replied he would never drive through Navan.
He explained to the Tribunal that he had applied to the respondent for alternative routes advertised in the respondent in 2010 and 2012. These applications were neither acknowledged nor replied to. He felt the respondent should have considered these routes for him to return to work.
When asked why he had not attended any meetings requested by KMP he replied that he had been absent on sick leave and he had a civil court case pending. He did not want to do anything until the High Court case was over.
Determination:
The Tribunal have carefully considered the sworn evidence and submissions adduced by both parties in this matter.
The Tribunal finds the respondent tried to assist the claimant in returning to work but he, the claimant, resisted their efforts. The Tribunal finds the claimant frustrated his contract.
Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)