Complainant

Respondent

Anonymised Parties

A Driver

A Transport Company

Act

Complaint Reference No.

Date of Receipt

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

CA-00009021-001

11/01/2017

The complainant had been employed by the respondent as a bus driver and was paid €14.00 per hour for a thirty-nine hour week.

Her was dismissed on November 11th, 2016.

The complainant was observed by an independent expert to have committed a number of serious driving breaches.

These included leaving the vehicle while passengers were still on board, making or taking a call on his mobile phone while driving the bus and not adhering to the company timetable as a result of driving too slow.

In August 2016, the complainant was required to undertake refresher training, to which he objected.

On August 29th, an assessor concluded that the complainant was not adhering to the timetable by driving too slowly.

On September 11th, 2016 the respondent put an observer on the complainant’s bus who noted the complaints referred to above.

He attended the hearing and gave evidence. The witness is an advanced driving instructor and fully Garda vetted. He has never been employed by the respondent.

He stated that he saw the complainant leave the bus for five to ten minutes at one stop and the engine was left running. In response to a question he could not say what time this happened.

He later observed him making a phone call which he said lasted about fifteen minutes, and he described the complainant’s tone as being argumentative and complaining in the course of the call about the company management and his own situation.

At one point, the complainant missed a ‘Stop’ sign and seemed oblivious to the safety of pedestrians. The assessor compiled his report the same day.

These facts were the subject of a subsequent investigation by a company manager. She based her investigation on the reports of the two independent assessors; both of whose reports were supplied to the complainant.

He was offered the opportunity to respond and question the assessors.

The matter was then processed through the disciplinary procedure and was heard by the Managing Director. He decided that the complainant’s employment should be terminated. He gave evidence to the effect that he fully considered all the evidence and the complainant’s denials but concluded on the balance of probability that the events as alleged by the independent assessors were true.

This was appealed to the Executive Chairman who upheld the decision.

The respondent says the complainant found employment some eleven weeks after his dismissal.

The complainant denies all the allegations.

He says he did not leave the bus as alleged and gave direct evidence to that effect.

A witness who was present at the stop in question gave evidence. He is a driver for a different company and said he was carrying out a survey and stated that at no stage did the complainant leave the bus. He says the complainant was at the bus stop for only two to three minutes altogether.

He also says that telephone records provide evidence that he had not made a phone call during the time as alleged.

He says that the evidence about his pattern of driving has been fabricated.

He also complains about delays in providing him with information in the course of the investigation, although he did receive it before the second meeting.

The final report of the investigator did not appear to have incorporated the complainant’s comments on the draft report.

Critically, he says he was denied the opportunity to confront the assessors in person who had made the report. While he was offered the option of cross examining them on the telephone this was insufficient to meet the requirements of natural justice

There are three stages in assessing whether a dismissal is unfair.

The first is whether there are sufficient facts to ground the disciplinary action in the first place.

Secondly, and in most cases critically there is the operation of a fair procedure to ensure that the complaint is considered having regard to the principles of fair procedure and natural justice.

Finally, the sanction is to be considered and whether it falls within the range of reasonable sanctions.

A majority of unfair dismissals complaints turn on procedural matters or on whether the sanction is appropriate.

In this case, there is a very significant conflict in the evidence in relation to the facts giving rise to the process which led to the complainant’s dismissal.

Two independent experts (and I accept both their independence and their expertise) gave evidence in respect of three issues; the taking or making of a personal phone call, what the respondent described as ‘abandoning’ the vehicle while passengers were still on board, and driving the vehicle in a dangerous manner.

The complainant flatly denies all three of these charges. In respect of the second of them a witness gave evidence that he did not leave the bus at all, and that the entire duration of his stop at two to three minutes was substantially less than the period he was alleged to have left the vehicle.

In assess the credibility of this evidence, on the one hand, there are two independent witnesses who have relevant expertise.

On the other, there are the denials by the complainant and the corroboration of a witness in respect of one of the allegations; that of leaving his bus. The complainant now works for the same company as this witness, who formerly worked for the respondent and left following what was described as ‘an incident’ in September 2015.

The conflicts in the evidence are stark.

The phone call denied by the complainant to have taken place at all is alleged to have lasted fifteen minutes by the second independent observer.

Likewise, the absence from the bus disputed by the complainant is alleged to have lasted ten to fifteen minutes. That there was any absence at all is denied by the complainant and a witness corroborates this.

The complainant says the evidence in relation to his driving has been fabricated. Some of this was from the first assessor. But the company says this assessor had previously given the complainant a positive assessment and therefore had no bias against the complainant, nor any reason to act in a hostile way towards him.

It is well established that the role of an adjudicator in a case such as this is to consider whether, on the basis of the evidence before it, the respondent acted reasonably, fairly and proportionally having regard to the facts of the matter, the conduct of the process and the sanction.

This brings us to the procedure followed by the respondent.

The reports made to it by both independent assessors were credible, as was the evidence at the hearing. They could not be ignored. On the other hand, the decision maker at the level of the workplace did not have the opportunity to hear and properly assess the complainant’s response to, and any submissions on their evidence, having been given a chance to challenge it.

I find the argument put forward by the respondent in relation to the need for anonymity to be without merit.

One of the assessors was already known to the complainant. It is hard to see what disadvantage would accrue from having the other one identified.

It is important to distinguish the position of the assessors from that of a normal workplace investigator whose report is generally sufficient for the purposes of a hearing and who will not be needed to give direct evidence.

The assessors had not been carrying out an investigation in this sense where various parties and witnesses are interviewed as to matters of fact and these are then presented for disciplinary action. Such investigators are not ‘primary’ parties in the matter.

In this case the assessors were themselves critical witnesses and therefore in a quite different position to an investigator. They were key to the hearing.

The company did carry out a subsequent investigation but given the critical nature of the direct evidence the assessors were offering it is a basic requirement of natural justice that the complainant should have been given the right to confront them in person.

There were some other more technical complaints about the company investigation; the absence of Terms of Reference for example which would be insufficient to render an otherwise well conducted process unfair, but a defect of this significance in the presentation of evidence in the disciplinary process itself will.

Accordingly, the dismissal was unfair.

The complainant got employment some months later in March 2017 and his losses relate to the ten-week period in between and ongoing losses of €100.00 per week.

Having reviewed the evidence adduced before me at the hearing, while I have concluded that the dismissal was unfair I consider that the complainant made a very significant contribution to the matter and that it is just and equitable in the circumstances to adjust the level of compensation accordingly.

For the reasons set out above I uphold CA-00009021-001 and I award the complainant €3,500.

Dismissal, witnesses, disciplinary hearing.