Complainant

Respondent

Anonymised Parties

School bus driver

Bus company

Representatives

Self

Manager, School Transport section

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011854-001

09/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011854-002

09/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011854-003

09/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011854-004

09/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00011854-005

09/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00011854-006

09/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00011854-007

09/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00011854-008

09/06/2017

These claims relate to the termination of employment of a driver of a public service vehicle which was being used for the purpose of conveying school going children.

The Complainant commenced working for the Respondent in approximately September 2001.

The Complainant’s case is that he was “stood down” by the Respondent on the 9th of September 2011 pending the outcome of certain investigations and he was paid up until the 26th of January 2017.

The date his employment ended was the 24th of January 2017.

The Complainant worked an average of 32 hours per week.  

The complainant’s case was that he was wrongly accused of sexual assault of a child who was a passenger on his bus route.

An investigation of the accusation was carried out by the Garda Síochana but no prosecution was brought against him.

Tusla - The Child and Family Agency also investigated the complaint and its final decision (following a number of appeals by the Complainant) was furnished to the Respondent.

The Complainant gave evidence that he was taking legal advice on a Judicial Review of the Tusla findings. He was extremely aggrieved by the process undertaken by them in coming to their findings and disputed their findings.

In relation to specific complaint CA-00011854-001 the Complainant’s case is that he received no notice payment in relation to the termination of his employment.

In relation to CA-00011854-002 the Complainant’s case was that he did not receive holiday pay in accordance with the Organisation of Working Time Act.

The Complainant’s case is that he was stood down from the 9th of December 2011 until the 26th of January 2017. He didn’t get any annual payment for annual leave during this period. He admitted that he didn’t work any hours during this period, but stated that he was available for work. His claim was for annual leave.

Complaint CA-00011854-003 was withdrawn at the hearing.

Complainant CA-00011854-004 was that he did not receive a statement in writing of his terms of employment.

Complaint CA-00011854-005 was in relation to the complaint of unfair dismissal.

The Complainant’s evidence was that the redress he was seeking was reinstatement or reengagement.

He confirmed that since dismissal he had not taken up any employment. He was in receipt of a social welfare payment / illness benefit. He confirmed he had not applied for jobs or minimised his losses since the termination of his employment.

The Complainant’s case was that the Respondent relied on the Tusla report without conducting a full and thorough investigation of same. The Respondent did not take into consideration the Garda investigative report which determined that there would be no prosecution in relation to the allegations. His case was that the Respondent summarily dismissed him without conducting its own investigation or allowing him an opportunity to defend his name.

He further gave evidence that he was not aware of any grievance or disciplinary procedures followed by the Respondent. They were not provided to him.

He submitted that his dismissal was unfair. He always denied the allegations made in the Tusla report and appealed the findings. He was not provided with an opportunity to defend himself in the termination of his employment. He was not provided with fair procedures and the Respondent terminated his employment without any warnings and no notice was provided.

Specific complaints CA/00011854/006 to CA/00011854/008 relate to claim for minimum notice.

The Respondent’s case is that in December 2011 they were made aware that an allegation of a sexual nature had been made against the Complainant. The Complainant drove a school bus transporting primary and post primary children to and from school on a daily basis during the academic year. The children on the Complainant’s service would have been between the ages of four and eighteen years of age and are the sole responsibility of the Complainant while on the bus.

As a result of the information received by the Respondent, the Complainant was immediately suspended pending the outcome of a Garda investigation. The Respondent was aware that the DPP would not be proceeding with a criminal prosecution against the Complainant.

The Respondent sought information from the principal social worker of Tusla.

The Respondent’s submission was that both Tusla and the Garda Síochana have equal statutory authority in the matter and the notification they received from Tusla on the 18th of January 2017 as to their findings of their investigation and their advice to the Respondent meant that the contract of employment with the Complainant was frustrated.

The Respondent received a letter from Tusla dated the 18th of January 2017 which stated that the appeal panel had upheld the social workers findings that an unnamed party was the subject of sexual abuse by the Complainant.

The letter went on to state that considering the outcome of the appeal and specifically the Complainant’s employment in his role as bus driver, it was advising that as the Complainant’s employer, the Respondent ensure that measures are put in place that prevent any risk to children with which he may encounter through the course of his work.

The Respondent’s position was that if the Respondent was to reinstate the Complainant as he sought, it would be breaking the law in circumstances where a statutory authority has issued such advices.

The Respondent’s case was that the Complainant had appealed Tusla’s decisions in relation to the matter on two separate occasions and the original findings were upheld on both appeals.

The Respondent accepted the statutory authority of Tusla the child and family agency in child protection matters and they accepted the weights of their advice. They further submitted they did not need any further substantiation before taking the action recommended by Tusla. They submitted that failure to take the recommendation would place them in the invidious positon of having committed a criminal offence by failing to take the required action.

They referred to Section 176 of the Criminal Justice Acts 2006 and the criminal charge of reckless endangerment of children. Furthermore, in their submissions they referred to the Childcare Act 1991 and the objective that the welfare of the child is of paramount consideration.

At the hearing of the case, the Respondent confirmed that there were no other positions available in the company and they had acted responsibly and reasonably, having followed proper procedures and treating the Complainant’s contract of employment as frustrated.

I have considered the evidence of both parties to this case both orally at the hearing and in written submissions both before the hearing and subsequent to same.

I note that the Respondent relied in the sole defence of its actions on the principle of frustration of contract.

If the application of the principle is accepted, the contract comes to an end and the Complainant can no longer rely on statutory rights which depend on the dismissal such as his unfair dismissal claim or minimal notice claim.

The general principle is that frustration of contract only applies where there has been some extraneous change of situation not foreseen or provided by the parties at the time of entering into their contract, which makes it impossible for the contract to be performed or at least renders its performance significantly different from what the parties contemplated when they entered into the contract.

However as with every dismissal, the Respondent must be in a position to justify the termination and must follow fair procedures in the dismissal process.

The doctrine of frustration arises by operation of law. As a result, the courts have tended to interpret this doctrine narrowly and are slow to treat a contract of employment as frustrated.

The High Court case of Zuphen v Kelly Technical Services [2000] IEHC 117, warned of the dangers of applying the doctrine without caution in cases involving employment contracts.

This attitude is also applied in UK employment fora decisions on the basis (as in this jurisdiction) that there are employment law provisions on the statute books (i.e. defences under the Unfair Dismissal Acts) which have application to the circumstances.

The Unfair Dismissals Acts require employer to act reasonably in their dismissal process.

Section 6(1) provides that where an employee is dismissed, such a dismissal is deemed to be unfair unless “there were substantial grounds justifying the dismissal”. Section 6(4) lists certain grounds that allow an employer to dismiss an employee without it being deemed “unfair”, and included in s.6(4)(b) is the fact that a dismissal will not be unfair “if it results wholly or mainly from … the conduct of the employee”.

My function is not to substitute my views for the views of the Respondent, but to decide whether the employer has acted reasonably in the circumstances.

The Respondent accepted that it did not carry out a disciplinary process. It contended that it was required to act on foot of the Tusla report.

At the hearing, the Respondent did address the question of considering alternative roles for the Complainant. However, there was no evidence produced to me of an exploration of alternatives to termination of employment prior to the decision to terminate his employment in January 2017.

While I accept that the Respondent found itself in a very difficult position, I find that it acted precipitously in making its final decision. It should have complied with the terms of their own disciplinary procedures beforehand.   This is in light of the Complainant being on suspension for a very long period of time.

Overall, considering that there was no meeting of any kind with the Complainant before the decision to terminate his employment was communicated to him and there was no mechanism to appeal the decision, I cannot find that the Respondent acted reasonably in their actions.

CA-00011854-001: I dismiss this complaint as it is a duplication of CA-00011854-006.

CA-00011854-002: The Complainant had not worked in the previous 12 months prior to the hearing date.   He had not accumulated annual leave under section 19 of the Organisation of Working Time Act 1997 or the terms of his contract of employment. His absence from the workplace was due to suspension not sickness.

CA-00011854-003: Public holiday entitlement. This was withdrawn by the Complainant at the hearing.

CA-00011854-004: Terms of Employment. The Complainant received his required terms and conditions of employment and had in fact signed a contract of employment on the 29th January 2001 and this was produced to me at the hearing. Any statutory requirements missing from the contract of employment were minor in nature and did not disadvantage the Complainant. I hold that this complaint is not well founded.  

CA-00011854-005: I find that the Complainant was unfairly dismissed. Compensation is the appropriate form of address to be awarded in the circumstances of this case. I have decided this based on the evidence of the Respondent provided at the hearing.

As the Complainant was in receipt of a social welfare payment for illness, he had no financial loss.

Section 7 (1)(c) requires that I make an award of compensation as is just and equitable having regard to all of the circumstances. In this case, I award a payment of 1 week for the breach of procedures. Had the Respondent applied its own procedures, the process would not have taken more than a week. This amounts to €497.55 gross and is taxable in accordance to the Revenue rules on termination of employment.

CA-00011854-006: I find that the Complainant is entitled to statutory notice of 8 weeks’ gross pay = €3,980.40.

CA-00011854-007 and CA-00011854-008. I dismiss these complaints as they are duplications of

CA-00011854-006 above.

Frustration of contract.