ADJ-00005125

ADJUDICATION OFFICER DECISION 

Adjudication Decision Reference: ADJ-00005125

Complaint  

Date of Adjudication Hearing: 13/01/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly 

Procedure: 

In accordance with Section 41(4) of the Workplace Relations Act and the acts listed above and following the referral of the complaint to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. 

Attendance at Hearing: 

The complainant withdrew CA-00007676-002 and CA-00007676-003. 

Complainant ‘s Submissions ADJ 7676 -001 ( Holiday Pay)  

The complainant stated that on termination of his employment, his holiday entitlements had not been calculated correctly and he had not been paid correctly.

Respondent’s Submissions ADJ 7676-001 (Holiday Pay)

The complainant commenced employment with the Respondent on the 7^th March 2016 as part of their compliment of drivers on its City Sightseeing service. In early April 2016, the complainant approached the Human Resources Department seeking a change of assignment. Following consideration of this request, the complainant was facilitated with a move to the Private Hire side of the business with effect from 22^nd April 2016. Shortly after this the complainant informed management that this new arrangement did not suit him any longer as he had moved back to live at home in Longford. In taking this into consideration, the Company offered the complainant the opportunity to work 3 long days at weekends on their long haul service, thereby affording him the opportunity to return to Longford for the rest of the week.

In addition to the above changes, the Respondent were very unfortunate in losing key members of staff (i.e. Human Resources Manager, Payroll Officer, Management Accountant, and 2 Operations Staff with responsibility for managing and scheduling staff) during the period of the complainant’s employment with the Group. These departures came at the height of the business year for the company and placed great strain on existing resources at the time.

On receipt of the complaint from the Workplace Relations Commission the Company immediately undertook to carry out a review of the complainant’s holiday entitlement for the period of his employment with the Respondent. The complainant’s Holiday Entitlement for the period under consideration is 11 days in total, and he availed of 5 days Annual Leave on 30/07/2016, 31/07/2016, 06/08/2018, 07/08/2016, and 08/08/2016. In addition, the complainant received 2 days additional pay for annual leave purposes on the 2^nd October 2016.

It should be noted at this point that at no time did the complainant choose to avail of any of the internal dispute resolution procedures available to him (i.e. Grievance procedure) to try and resolve matters in the first instance.

The outcome of the review concluded that the complainant is entitled to payment for 4 outstanding Annual Leave days. The complainant has received full payment for all of his outstanding Annual Leave entitlement.

Decision CA-00007676-001 (Holiday Pay)

Section 41(4) of the Workplace Relations Act 2015 and Section 27 Organisation of Working time Act, 1997 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. 

I am satisfied based on the documentary evidence introduced by the respondent that the complainant, albeit late, has been paid his entire holiday entitlements. 

The complainant’s claim CA-00007676-01 fails. 

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Complainant’s submissions 7174 – 001 (Unfair Dismissal)

The complainant started employment with company on 07/03/2016 on a permanent contract with 6 months probationary period. On the 07/09/2016 he contacted HR to see if as his probationary period was complete. It was. He received confirmation stating "I can confirm that you are out of your probationary period and a job chat will be scheduled with Trish when you return from tour".

He attended a meeting on the 23/09/2016. He stated that he had no prior knowledge of the contents of the meeting. He had no representation at the meeting. He left the meeting with a letter stated that his employment was to be terminated with immediate effect. This came as a shock he him. 

Respondent’s submissions

The complainant commenced employment with the respondent on the 7^th March 2016 as part of their compliment of drivers on its City Sightseeing service, operating from the Bluebell offices of the Company. At the time the complainant was resident in Longford and informed the Company he had family in Dublin he was prepared to live with for the purposes of seeking employment with the Company.

In early April 2016, the complainant approached the Human Resources Department seeking a change of assignment as he was no longer happy with the role he was in. Following consideration of this request, the complainant was facilitated with a move to the Private Hire side of the business, based in Rathcoole, Co Dublin, with effect from 22^nd April 2016. Shortly after this the complainant informed management that this new arrangement did not suit him any longer as he had moved back to live at home in Longford. In taking this into further consideration, the Company offered the complainant an alternative opportunity to work 3 long days at weekends on their long haul service, thereby affording him the opportunity to return to Longford for the rest of the week. The complainant was informed at that time this work was summer work only and that drivers in the Rathcoole depot perform different duties in the winter months compared to the summer months.

In addition to the above, it is standard practice for all drivers operating out of the Rathcoole depot to complete 3 important tasks at the end of each day, namely, A) refuel their vehicle, B) sweep out the bus and empty the bins, and C) put the vehicle in the bus wash. The complainant complained about having to carry out these standard duties and once again he was facilitated by way of additional support of a cleaner coming in early in the morning to clean his particular vehicle before the next driver arrived for work.

The Company went to great lengths at all times over the period of the complainant’s employment to facilitate working arrangements that suited his particular needs primarily.

The purpose of the meeting with management on the 23^rd September 2016 was to discuss with the complainant his options over the winter period, as the complainant was commuting from Longford and required a 3 day consecutive working week. At that time, the season was coming to an end and the complainant had requested a new contract from the HR Department following the completion of his probationary period, and management required clarification from the complainant as to his interest in working on alternative contracts. The complainant declined to avail of the offer from management for alternative work and as there was no other guaranteed work for the complainant over the winter months, he was informed that management had no alternative but to terminate his current contract of employment until next season. The complainant was assured by management at the meeting that his position would be available to him to commence again at the start of the next season.

The complainant recorded his disappointment with this decision as he was given to understand that work would be made available over the winter months. The complainant was again informed by management that work is available over the winter months but that they could not guarantee work over 3 consecutive days in a row and that work is required to be split over a 7 day working week for operational reasons. In reply, the complainant clearly informed management that he needed the 3 days work to run consecutively and preferred to only work on the day tour shuttles. The meeting ended at this point and management again assured the complainant his position would be available for him to commence again at the start of the next season. Confirmation of the outcome of this meeting was conveyed to the complainant by way of correspondence dated 23^rd September 2016.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and Industrial Relations Act, 1969 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. 

The complainant is an experienced bus driver. He knew or ought to have known that the bus route to and from the cliff of Moher was seasonal. I am satisfied that the respondent offered the complainant an alternative bus route for the winter months but, for his own personal reasons, he declined the offer. I am also satisfied that the respondent did everything they could to facilitate the complainant and his many requests as they did not want to lose him.

In circumstances where the complainant was refusing to do the work he was asked to do I find that his claim for Unfair Dismissal pursuant to the Industrial Relations Act fails. 

Dated 06 March 2017