FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : CALLINAN COACHES LIMITED (REPRESENTED BY PENINSULA BUSINESS SERVICES (IRELAND) LIMITED) - AND - JOHN O' SULLIVAN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Ms O'Donnell |
1. Appeal of Adjudication Officer Decision's No: ADJ-00000929, CA-00001353-001.
BACKGROUND:
2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 9 November 2016 in accordance with Section 8A of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on 4 April 2017. The following is the determination of the Court:
DETERMINATION:
This is an appeal by Callinan Coaches Ltd against the Decision of an Adjudication Officer ADJ-00000929 under the Unfair Dismissals Acts 1977 to 2015. In this Determination the parties are referred to as they were at first instance, hence Mr John O’Sullivan is referred to as ‘the Complainant’ and Callinan Coaches Ltd is referred to as ‘the Respondent’. the Complainant referred his complaint to the Workplace Relations Commission on 9th December 2015.
The Adjudication Officer found that the Respondent had unfairly dismissed the Complainant and ordered that compensation in the amount of €16,000 be paid to the Complainant.
The Respondent appealed the Adjudication Officer Decision to this Court on 9thNovember 2016. The appeal came before the Court on 4thApril 2017.
Background
Dismissal is not in dispute in this case. The Complainant commenced his employment as a Driver with the Respondent, a luxury coach hire service provider, on 1stOctober 2005. With effect from 14thJuly 2015 the Complainant was dismissed as he was unable to continue to work in the position which he held without contravention of the Road Traffic Acts in connection with him being uninsurable due to an accumulation of penalty point endorsements. At the time of the termination of his employment, the Complainant’s weekly earnings were €594.03 gross per week.
In January 2015 the Complainant submitted to the Respondent a completed penalty points declaration form which confirmed that he had ten penalty points endorsed on his driving license. The penalty points had been received for speeding offences. The penalty points declaration was a routine requirement in connection with the renewal of the Respondent’s fleet insurance policy.
On 26th May 2015 the Respondent was informed that its insurer would not provide cover for the Complainant due to the level of accumulated penalty points. The Complainant was suspended from duty with pay at that point pending investigation of the matter. The Respondent received written confirmation from its insurance broker dated 4th June 2015 confirming that the Complainant’s history of penalty points was outside of the insurer’s underwriting guidelines and consequently insurance cover for him would not be provided.
The Respondent sought to enquire of their insurance broker as to when cover could be obtained with the insurer for the Complainant. By letter dated 17th June 2015 the broker confirmed that the insurer was not in a position to advise on this. It was recommended that the Respondent resubmit the Complainant for consideration when the level of penalty points had reached 5 or less, which was likely to be some 13 months hence in July 2016. The Complainant would not be completely free of penalty points until February 2017. The Respondent informed the Complainant that it would explore the option of seeking insurance cover with another provider but that if this was not possible alternative work would be considered.
By letter dated 30th June 2015, the broker informed the Respondent that no insurer in the market that provided the cover required by the Respondent would provide cover for the Complainant.
Following a series of meetings during which the Complainant was presented with details and terms and conditions of an alternative general operative role with the Respondent which carried a lower rate of pay compared to the driver rate, the Complainant confirmed by email on 7th July 2015 that the alternative role offered to him was unsuitable and was declined. The termination of the Complainant’s employment with effect from 14th July 2015, with four weeks payment in lieu of notice, was subsequently confirmed to him by letter of the same date.
The Complainant sought to appeal his dismissal. By letter dated 16th July 2015 he confirmed that his appeal was based on the proportionality of the sanction and the“wholly unsatisfactory”and“drastically revised”terms of employment which include a“substantial reduction in hourly rate”which would impact his family and financial commitments. The Complainant also cited the Respondent’s prior knowledge of his penalty points history and the lack of a company policy and procedure on penalty points. The Complainant later cited the working conditions associated with the general operative role as being a potential risk to his health, though this concern was not expressly set out in his letter.
An appeal hearing took place on 1st September 2015. By letter dated 8th September 2015 the Respondent confirmed that the decision to dismiss was upheld.
Summary of the Respondent’s Arguments
- •The dismissal was fair in circumstances where the Respondent was not reasonably able to secure insurance cover for the Complainant due to his penalty points history in connection with speeding offences. The Respondent did not have a problem with the Complainant’s penalty points historyper se.
•The problem arose in connection with insurance cover.
•The Respondent could not permit an uninsured driver to operate one of its vehicles as to do so would be in contravention of the Road Traffic Acts. These circumstances accord with Section 6(4)(d) of the Unfair Dismissals Act 1977, as amended.
•The termination of the Complainant’s employment was decided following a fair process.
•The Respondent could not reasonably source its insurance requirements from any other insurer in the market. Alternative employment as a general operative was offered to and declined by the Complainant due to the reduction in earnings as compared to the driver position. Medical concerns regarding exposure to toxins associated with the general operative role was not raised at the time that the role was declined.
•A company remedial penalty points procedure or policy is not a reasonable requirement in circumstances where a professional driver ought to have known that his driving habits required improvement.
•The Complainant contributed 100% to his dismissal.
Summary of the Complainant’s Arguments
- •The penalty points were incurred whilst driving in the course of the Complainant’s employment with the Respondent and the Complainant was not excessively speeding.
•The Respondent had been aware of the Complainant’s penalty points history. A penalty points declaration form similar to the one submitted in January 2015 had been submitted to the Respondent in November 2013 which confirmed that the Complainant had accumulated eight penalty points at that time.
•The Respondent never took issue with him or raised concerns with him regarding penalty points and no company policy on penalty points was ever communicated to the Complainant.
•The Respondent should have transferred the Complainant to driving on routes where he would have been at a lower risk of incurring penalty points.
•The alternative role offered was unsuitable due to the lower earnings and the working conditions which could pose a risk to the Complainant’s health.
The Law
Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:
- 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:- (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.
- (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
Discussion and Findings
The Court had the benefit of substantial written and oral submissions in this case.
Mr. Brian Dolan, Peninsula, representing the Respondent, confirmed to the Court that the Respondent never took issue at any stage with the Complainant’s penalty points history. He further confirmed that the Respondent had no difficulty with the accumulation of penalty pointsper se. The difficulty related to the inability to obtain the required insurance cover, which only arose in May 2015. Prior to that the Respondent had no reason to take the matter up with the Complainant.
The representative for the Complainant, Mr. Paul Hardy, SIPTU, confirmed to the Court that it was accepted that the reason that the Complainant’s employment was terminated was due to the inability of the Respondent to obtain insurance cover for the Complainant. Mr. Hardy further accepted that the insurance cover required by the Respondent could not reasonably be obtained in respect of the Complainant.
Mr. Hardy outlined to the Court that the Respondent’s conduct in failing to raise concerns with the Complainant about penalty points accumulation and take appropriate remedial action in this regard in accordance with a specific penalty points company procedure/policy should be taken in to account by the Court in the determination of this case.
Having considered the extensive oral and written submissions provided in this case, the Court is satisfied that the approach outlined by Mr. Hardy is one which would be required where the dismissal resulted from the type of employee conduct, or more usually misconduct, related circumstances contemplated by Section 6(4)(b) of the Unfair Dismissals Act 1977. However, it is clear that the circumstances of the termination of the employment in this case did not arise as a result of some form of misconduct or fault on the part of the Complainant.
Conversely, what occurred in this case accords fully with the circumstances contemplated by Section 6(4)(d) of the Act where the Complainant was simply unable, by virtue of being uninsured, to continue to drive the Respondent’s vehicles as this would be in a contravention of a particular statute, in this case, the Road Traffic Acts. The Court notes that the Respondent offered the Complainant alternative employment pending the expiry of sufficient penalty points to deem him insurable by the Respondent’s insurers. The Complainant refused the alternative employment, principally on grounds which were not brought to the Respondent’s attention until after the decision to dismiss was made. In any event the Respondent had no other alternative employment options.
The Court is therefore satisfied that there were substantial grounds justifying the dismissal of the Complainant from his employment and that, accordingly, the dismissal was not unfair. The Complainant of unfair dismissal therefore fails.
Determination
The Complainant was not unfairly dismissed and the complaint fails. The Decision of the Adjudication Officer is varied accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
8 MAY 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.