ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001451
Complaint for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00002050-001 | 20/01/2016 |
Date of Adjudication Hearing: 28/11/2016
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint).
Background
The Complainant was employed from 28th July 2014 until the employment was terminated on 3rd November 2015. The Complainant was paid on average €600.00 gross per week and worked on average 48 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment including the Grievance and Disciplinary Procedures of the Company. The Complainant referred a complaint to the Workplace Relations Commission on 20th January 2016 alleging he had been unfairly dismissed.
Summary of Respondent’s Position.
The Complainant was employed as a coach driver from 28th July 2014. The Complainant had been issued with a final written warning on 12th April 2015 to remain on his File for a period of 12 months. In September 2015 the Respondent received a complaint from a customer in relation to an incident on a coach which occurred on 23rd September 2015 when an elderly woman was seeking to travel to Limerick in circumstances where she had been caring for her dying sister. She enquired of the Complainant if the Bus was going to Limerick and she was told no. When she queried as to why it said otherwise on the Bus the Complainant grabbed her bags and threw them into the luggage department. He threatened to take her off the Bus and she could get another Bus as he was running late. He continued to treat other passengers in a similar manner. When she arrived at her destination she requested his name or badge number but he refused to do so while putting his badge into his pocket. The customer’s brother met the Complainant and asked the Complainant as to why the customer was so upset. The Complainant did not answer but drove off in the Bus which he then stopped and shouted his name, stated, to the customer. A customer complaint was received and an investigation was initiated.
The Complainant was sent a copy of the customer complaint on 14th October 2015 and invited to attend an investigation meeting on 15th October 2015. At the investigation meeting the Complainant named two witnesses to the incident and he also stated that he had phoned his Duty manager to inform him there was going to be a complaint. The two named witnesses of the Complainant gave statements confirming the incidents and confirming that the Complainant acted rudely to the customer.
The Complainant was invited to attend a Disciplinary Hearing on 27th October 2015. The Complainant was given an opportunity to be accompanied by a fellow employee, to bring any witnesses he wished and to question any other witness at the Hearing. The outcome was to terminate the employment for Gross Misconduct as he was already in receipt of a final written warning which was still on his personal file. The Complainant was afforded a right of appeal which he did on 29th October 2015.
The Appeal Hearing took place on 5th November 2015. In the meantime SIPTU wrote to the Respondent on 3rd November 2015 stating a named official of the Union would be attending to represent the Complainant. The Complainant was informed that as per the Employee Handbook the Company do not allow external third parties but confirming that he could be accompanied by a work colleague. The Complainant agreed to proceed with the Appeal on 5th November 2015 without a representative or any witness being present and he signed to this effect.
The outcome was to uphold the decision to dismiss. However in line with Company Procedures the Complainant was afforded a right of a further appeal to the Managing Director. His decision was to uphold the decision to dismiss.
Summary of Complainant’s Position.
The Complainant was employed from 28th July 2014 on a full time basis and apart from an incident in April 2015 he had a clear record.
The Complainant was scheduled to drive the coach to Killarney, via Limerick. The coach for this service was running some 35 minutes late resulting in him being late to collect passengers at a specified location. When he arrived at the location there was another coach already there and he stated that he made an arrangement with his colleague that that coach would take passengers for Limerick while the Complainant would take those ongoing to Killarney. When he arrived at another specified location to pick up more passengers a lady enquired as to where he was going. He stated that he confirmed the coach was going to Limerick and proceeded to load her luggage. When the passenger was alighting from the bus at her destination the Complainant got off with her to assist her with her luggage. He thanked the passenger but then stated that the passenger followed him back to the front of the bus and sought to address the passengers stating the Complainant had removed his badge. He commenced his journey but noticed a man approaching and he stopped and answered questions as to why the passenger was upset and the Complainant replied he didn’t know. He advised both the passenger and the man of the coach service the coach number and his name. He rang his Duty Manager to inform him there may be a complaint although he did not know why the passenger was upset.
Two weeks later his pay was reduced and he raised the issue but the deduction remains unresolved.
The Complainant was requested to attend a Disciplinary Hearing on 27th October 2015, this was some 4 weeks after the incident with the passenger. Within 24 hours there was a decision to dismiss the Complainant. The person who conducted the investigation was the same person who made the decision to dismiss. The Complainant was afforded a right of appeal which was heard on 5th November 2016. SIPTU were not allowed to represent the Complainant and SIPTU and the Complainant were informed he could have a fellow employee present in a witness capacity. The outcome was to uphold the decision to dismiss. There was a further appeal to the Managing Director and again the outcome was to uphold the decision to dismiss. SIPTU outlined a number of concerns concerning the dismissal
The Complainant stated at the Hearing that he had commenced employment again on 9th November 2015 working 4 hours x 5 days and he was paid €230.00 net. He was working 26 weeks part-time and commenced full time employment on 13th May 2016 earning €600.00 net on average a week. The Complainant was requested to provide information post the Hearing and SIPTU did so on 22nd December 20`16. These show as follows –
The Complainant commenced employment with a named Company on 3rd November 2015 and that employment ceased on 8th May 2016 He earned a total of €2075 gross according to the P 60 for 2015 and he earned €4990 gross according to the P45 for 2016.
The Complainant was also employed by another named Company from 9th May 2016 and this Contract has been renewed effective from 10th October 2016. The Complainant is paid according to the Contract of Employment gross of €539.00
Findings
On the basis of the evidence I find that the Investigation, Disciplinary and Appeals process was conducted in accordance with the internal procedures of the Company and in accordance with S.I. 146/2000
Decision CA-00002050
In accordance with Section 8 of the Unfair Dismissals Act, 1997, I declare the complaint of unfair dismissal is not well founded.
Rosaleen Glackin
Adjudication Officer
Date: 15 February 2017