EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Derek Michael Rothwell UD537/2015
- claimant
against
Dublin Bus
– respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. Mcgrath B.L.
Members: Mr F. Cunneen
Mr T. Brady
heard this claim at Dublin on 27th April 2016
Representation:
_______________
Claimant(s) : In person
Respondent(s) :
Mr Hugh Hannon, CIE Solicitors Office, Bridgewater House,
Bridgewater Quay, Islandbridge, Dublin 8
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced in the course of the hearing. The claimant is an employee with Dublin Bus for in excess of twenty years, employed as a driver operating his own route.
The claimant claims he was constructively dismissed and issued a Workplace Relations complaint form on the 6th of May 2015.In it’s form T2, dated the 20th April 2016, the respondent employer indicates the claim is ill founded by reason of the fact the claimant continues to work in his capacity as a driver with them. The employer has further indicated that there was a prolonged period of absence through illness but that this did not constitute a dismissal whether constructive or otherwise.
The Tribunal was obliged in the course of this hearing to determine whether there was termination of employment such that there was a breach of Unfair Dismissals legislation in the first instance and directed that it would deal with this issue.
The Tribunal was obliged in the first instance to hear evidence on whether or not there had been a breach in the contract of Employment such that gave rise to a termination of employment. It was decided by the Tribunal that it would hear evidence on this point by way of a preliminary issue as the application of the protections afforded under the Unfair Dismissals legislation are only applicable where there has been such a termination of employment whether brought about by constructive dismissal , summary dismissal, Unfair selection for redundancy or otherwise.
The Tribunal heard oral evidence from the claimant himself and from the HR Manager of the Respondent company. There were no legal submissions and the Tribunal had to make purely factual decisions based on what it had heard.
The Tribunal was told by the claimant that he had worked with the respondent company for upwards of 25 years. The claimant is an experienced driver operating out of the Clontarf bus station. In addition to being a driver, the claimant has also been a health and safety representative in the workplace having been elected to this position by an election of his peers. The Tribunal finds as a matter of fact that that this role is a ‘voluntary ‘ one and as so described by the respondent and had no monetary or remunerate value but did attract certain privileges which afforded the claimant flexibility within the workplace to have meetings and deal with Health and Safety issues.
There can be no doubt that the claimant had an unusual relationship with his employer and this might best be described as “combative”. The claimant (as is his right) exercised his right to bring the respondent before various institutes of the state - The Rights Commissioner, The LRC, The Equality Tribunal and The Employment Appeals Tribunal as well as the Health and Safety Authority. The claimant’s claims have been many and varied and it is interesting to note that the respondent has met each claim head on and has by and large been vindicated in any of the findings made to date.
In and around July 2103 the claimant was out on an extended period of sick leave. The claimant blames the respondent for this absence, but the Tribunal can make no observation on the merits of such an allegation.
The Tribunal does note that the claimant engaged fully with the appropriate departments (HR and medical) throughout this period of sick leave. The claimant had the full benefit of the sickness pay scheme operated by the company and subjected himself to regular medical checks as well as providing significant numbers of his own medical certificates.
The Tribunal was told of a letter of resignation in and around November 2014. The Tribunal did not have sight of said letter though both parties agreed the content of same insofar as this letter contained a resignation from the claimant from the position of Health and Safety Rep.
It was the claimant’s case that this letter was evidence of a constructive dismissal as the claimant had been forced into resigning from his position of Health and Safety representative by reason of the unreasonable behaviour of the employer.
The Tribunal does not need to make a decision on whether this was a constructive dismissal as the Tribunal cannot and does not equate this letter as a resignation of employment and merely an abandonment of a voluntary role within the workplace which the claimant was not, in any event, in a position to fulfil by reason of his absence, through illness, from the workplace.
The Tribunal gave the claimant every opportunity to make his case but the Tribunal must, on every interpretation of the evidence put before it, find this as a matter of fact that the contract of employment has not been severed and there has been no termination of employment whether instigated by the claimant or respondent .The claimant is now and always has been an employee of the respondent.
Further evidence of this fact is of course provided by the claimant’s return to his duties and functions as a driver some ten weeks ago. This was done at the end of the period of certified sick leave and has meant the claimant has retained and continues to accumulate service which now stands at 25 years.
The Tribunal has some sympathy for the observations made by the respondent company in the last paragraph of its T2.
The claimant’s claim under the Unfair Dismissals legislation therefore falls, the claimant having failed to establish jurisdiction.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)