ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000964

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 21/06/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s). 

Complainant’s Submission and Presentation:

The complainant was a bus driver and was involved in a road traffic accident on 28 November 2014 whilst driving one of the respondent’s vehicles. No person was injured but damage was sustained by two vehicles.

The respondent commenced an investigation during which time the complainant was suspended with pay from duty. The suspension continued over the Christmas period and a meeting was arranged for 2 January 2015. At that meeting the claimant was accused of not co-operating with the investigation and not contacting the Gardai who were also investigating the accident. It was also stated that the accident could cost the company a lot of money.

The complainant was invited to attend a disciplinary hearing which took place on 10 April 2015. There was a long discussion in relation to the issue and the meeting was adjourned for several days as the respondent stated that he needed to think about the matter. There were four complaints against the complainant which he believed he had answered. As a consequence the complainant did not bring a representative to the next meeting. At that meeting the respondent stated that the complainant would be sacked but that he had the option of resigning in which case he would get a reference. In the circumstances the complainant opted to resign as he felt that he had no other choice and that the respondent forced him to do so.

Respondent’s Submission and Presentation:

The complainant had a history of accidents with the respondent.

The investigation showed that the complainant had gone through a red light and was driving too close to the bus ahead of him when the accident occurred. He failed in his duty of care to his passengers and to the other road users on the day of the accident.

The complainant pleaded guilty in court to charges arising from the accident but the judge struck out the charges on learning that the complainant no longer worked for the respondent.

His actions were so serious that Stage 4 of the Disciplinary Procedure was invoked and therefore dismissal was an option that had to be considered.

The complainant was thrown a lifeline by the respondent and he accepted the offer in full and final settlement of all outstanding matters between him and his employer.

The complainant, in claiming constructive dismissal, is in breach of his agreement with the respondent.

As a preliminary issue the complainant’s claim is out of time. His date of resignation is 17 April 2015 and the claim was lodged with the WRC on 2 December 2015. The complainant’s explanation for the delay in making a claim does not stand up and his complaint should therefore be dismissed.

Decision:

Section 41(4) 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(1B) of the Unfair Dismissals Act, 1977 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.

Issues for Decision:

Does the explanation offered by the complainant in regard to the failure to lodge the notice of complaint within the six month period set out in legislation meet the criteria set out in legislation?

Did the complainant resign, having freely opted to do so, or was the resignation forced upon him due to the unreasonable actions of the respondent?

Does the agreement, signed by the complainant, whereby he resigned and received a payment over and above his legal entitlements, prevent the complainant from pursuing the complaint against the respondent?

Legislation involved and requirements of legislation:

Section 8(2) of the Unfair Dismissals Act 1977 states:

A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General –

(a)    within the period of six months beginning on the date of the relevant dismissal, or

(b)    within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause…

Amongst the definitions of dismissal within the Act is the following:

(b)    the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer…

Decision:

The complainant was employed as a bus driver with the respondent having commenced employment in May 2010. He worked full time and earned approx. €600.00 per week.

Preliminary Issue:

The date of the termination of the complainant’s employment as set out in his letter of resignation is 17 April 2015. The notice of complaint was received by the WRC on 2 December 2015. The WRC advised that the complaint was out of time and in his response then, and as stated at the hearing, the complainant advised that his wife had been diagnosed with cancer for the second time in July/ August 2015. Over the next few months there were frequent appointments and treatment in the hospital in Dublin culminating with major surgery in October followed by a period of recuperation.

The respondent argued that, whilst they had every sympathy with the complainant’s wife’s situation, this should not have prevented him from submitting his complaint within the six months specified.

The Labour Court has considered the issue of reasonable cause as follows:

“The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. …it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon….and the claimant must satisfy the court that, had those circumstances not been present, he would have initiated the claim in time.” (Ref: DWT 38/2003).

I have carefully examined the submissions and the oral evidence in relation to this matter. I note that the complainant stated that he had taken up employment (albeit on a part time basis) with another employer in October 2015. I accept that the situation regarding his wife’s illness would have been difficult for the family and that the complainant would have naturally provided her with all the support that was possible during this time. I do not accept, however, that this situation, by itself, could have prevented him from lodging the complaint within the allotted timespan.

I therefore find that the complaint under Section 8 of the Unfair Dismissals Act 1977 fails as it was not presented within the period specified in the legislation.

Dated:   22 September 2016