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-00009574-001

07/02/2017

The Complainant, a cleaner,   commenced employment with the Respondent, a bus/coach company, on 9^th   July 2014. He was dismissed from his   employment on 29^th November 2016.   His gross weekly pay was €493.30.   A Complaint Form was received by the WRC on the 7^th   February 2017. The favoured redress   for both parties is compensation.

The Complainant was on a final   written warning issued in March 2016.   The warning was appealed by the Complainant but the warning was   upheld. The Complainant did not opt to   appeal the warning a second time as allowed under the company's Disciplinary   Procedures.

On the night of Friday 28^th   October, a rear light of a bus was broken necessitating repairs to the tune   of €2,000. On investigation, the   respondent came to the view that the bus had been damaged when the   Complainant was reversing it within the compound/cleaning area.

The Respondent called an investigatory   meeting which took place on the 9^th of November. At this meeting, it was put to the   Complainant that he had damaged the bus while reversing it. The Complainant responded by stating that   he was not sure it was he who had damaged the bus as he did not feel anything   when the alleged damage was thought to have been done. The Complainant also stated that he would   have reported the matter to the Duty Officer (D.M.) if he had noticed he had   actually damaged the bus.

Following the investigation, a disciplinary   hearing took place at which the Complainant was shown CCTV footage of the   incident. According to the Respondent   when the Complainant saw the CCTV footage he admitted that he had damaged the   bus and was aware that he had done so.   The Respondent believes that the notes of the hearing support this   view of events.

The Respondent decided that the   failure of the Complainant to report the damage to the D.M. amounted to   'major misconduct' and as the Complainant was already on a final written   warning, the Respondent was, in their own words, left with no option but to   dismiss.

The Complainant appealed this   decision twice but on both occasions the decision to dismiss was upheld.

The Respondent stated that   damage to buses is of serious concern and not reporting damage is deemed to   be 'major misconduct'. Memos notifying   staff of their responsibilities in this area are, according to the   Respondent, regularly placed on noticeboards in the canteen.

In response to questioning the   manager who had carried out the investigation stated that employees,   including the Complainant, received training from the Driving Assessor, who   is a registered driving instructor, and there are some forms completed when   this training takes place. when asked   how such forms had not been provided in the documents supplied on foot of a   Data Access request the manager said he could not understand why this was   so. The manager also stated that when   he investigated the matter he had not checked driving training records for   the Complainant.

The manager of had heard the   appeal stated that having reviewed the CCTV footage it was his view that the   Complainant must have known he had damaged the bus and had failed to notify   the D.O. of the matter. It was the   failure to report the damage that resulted in the disciplinary action being   taken.

When questioned, the Respondent   stated that there had been previous dismissals for failure to report damage.

The Complainant provided a   detailed written submission.

At the outset of his testimony   the Complaint submitted that the final written warning extant on his file   when he was dismissed was illegitimate as it was issued unfairly.

The details outlined by the   Complainant regarding the incident of 29^th October when the bus   was damaged do not differ in essence from those outlined by the Respondent   above.

The Complainant submitted that   he had did not have a category D licence at any stage of his employment. He   also put forward that he had never been instructed that he must report any   damage to buses to the D.M. He also cited a recent example where he had   driven a bus with a broken windscreen, had not reported it without any   adverse consequences The Complainant submitted that he had only received 'on   the job training' by a colleague, not from a supervisor or manager and had   never before been required to notify damage to vehicles which was a frequent   occurrence.

In evidence the Complainant   stated that he had never seen the memos about reporting damage referred to by   the Respondent. He also stated that he   had not received any driver training, that he had taught himself in the yard   with help from his peers. He also   stated that he had never reported damage before. He did agree that he knew there was damage   to the bus.

The Complainant appealed the   dismissal on the grounds that it was too harsh a punishment for damaging a   light and not reporting it.

I have considered this matter   carefully.

The Complainant agrees that he   did not report the damage to the bus to the duty manager. However, he says he was never told he had   to report damage and he had noticed damage in the past and had not reported   with no repercussions. He was also   never taught how to drive the buses.   He also believes the final written warning which he was on at the time   of the decision to dismiss was flawed.

It is the Respondent's belief   that the Complainant damaged the bus and was aware of that yet he did not   report it to the Duty Manager as he should have done. From the Respondent's perspective, this   failure to report the damage equated to 'major misconduct', and as the   Complainant was already on a final written warning there was no option other   than to dismiss the Complainant.

I will first address the   legitimacy or otherwise of the final written warning. This warning was issued in March 2016 and   went through a detailed disciplinary process.   The Complainant did not take up the option of a second appeal as   allowed; he did not exhaust those procedures. Consequently, he must accept   that this warning was extant when the decision to dismiss was taken, it is   too late to try and undo that final written warning now.

In deciding on the fairness or   otherwise of this dismissal a number of questions need to be answered.

The Respondent says that memos   were placed on noticeboards in the canteen informing employees of their duty   to inform a superior about damage to vehicles. Copies of the memos were produced on the   day of the hearing but no evidence was adduced to show that employees were   made aware of the need to report damage.     The Complainant says he never saw these memos and was never told of   this obligation. He says he was never   issued with a Handbook (which might have contained on instruction on   reporting damage).   I t accept the   Complainant's evidence.

The Respondent says that the   Complainant received driving training from an instructor yet no evidence was   produced to support this point. Nor   were there any driving records in the documents provided to the Complainant   on foot of his Data Access request. In   evidence the Complainant says that the only driver training he got was from   colleagues. The Complainant does not have nor did he ever have a D category   driving licence during his employment with the Respondent, yet he drove   buses, albeit within the confines of the yard. My view is that if you wish an employee to   drive a bus you must first teach him how to drive a bus. If an employer fails to do that, then on   his own head be it if the employee then damages a bus while driving it.

I do not believe the grounds   were such as to justify a dismissal.

In the circumstances, I believe   the decision to dismiss was too harsh.   Even though the Complainant was on a final written warning I believe   the sanction of dismissal was disproportionate.

Rather than dismiss the   Complainant some other manner of disciplinary action, perhaps an opportunity   to make recompense, should have been considered.

An employer is bound to show   not only had he substantial grounds justifying dismissal but also that he   followed fair and proper procedures before dismissal. In relation to procedures a number of   questions need to be answered.

(i)   Was the Complainant given adequate details of the allegations to be able to   adequately address them?

The Complainant was made aware   of the allegations against him as these were outlined to him both verbally   and in writing. However, the   Complainant was not made aware of the possible level of sanction, either in   writing or at the outset of the investigation and disciplinary meetings, that   might be taken against him if the allegations were upheld.

(ii) Was the Complainant   afforded an opportunity to defend himself and have his arguments and   submissions listened to and evaluated by the Respondent in relation to the   threat to his employment?

The Complainant was only given   sight of the CCTV footage at the disciplinary hearing not at the   investigation meeting as he should have been.   The withholding of this crucial evidence until the Disciplinary   Hearing meant he did not have ample time to prepare a defence.

The Complainant was never   issued with a copy of the Disciplinary Procedures or an Employee Handbook so   he went into the investigation and disciplinary hearing at a disadvantage.

Although the Complainant turned   down the offer of representation/ being accompanied during the investigation   and disciplinary processes, it is my view that the Respondent should have   done more to encourage the Complainant to get a colleague or suitable other   to accompany him. I say this because   the level of sanction possible was dismissal (of which he had not been   advised) and the Complainant's first language is not English.

Of themselves none of the   faults outlined above would be enough to render a process procedurally   unfair, I believe when combined they do push the process across the line that   divides fair and unfair process.

The Complaint of Unfair   dismissal is upheld. The Complainant   submitted that his financial losses amount to approximately €21,600, though   his representative did say that this was an over-estimate. He did get part-time work in May 2017, at   €130.00 per week, but this only lasted for 6 weeks. He has recently taken up   a new job on similar terms as those he enjoyed with the Respondent. The Complainant say he tried lots of places   to get work but the supporting evidence was thin. I believe his efforts to mitigate his   losses could have been better.

In the circumstances, I order   the Respondent to pay the Complainant €12,825.80 within six weeks of the date   of this Decision.