Complainant

Respondent

Anonymised Parties

A Bus Driver

A Bus Company

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-00009828-001

21/02/2017

The complainant commenced with the Respondent in May 2015 resigned in October 2015 and returned to work on 28th November 2015. His employment ceased on 16 January 2017 when he detailed he was left with no alternative but to resign his position.

The complainant was engaged as a bus driver since May 2015 in a temporary capacity initially and worked on a number of routes including Route X. He never received a contract of employment. The nature of the contract was that you were called upon if needed and the complainant could accept or decline a route. On 2nd October 2015, while working on Route X, he stopped the bus at the regular bus stop, to allow passengers to disembark when both himself a passenger were assaulted by a restaurant owner Mr A, who owns a restaurant near where the bus regularly stops. The complainant reported the incident to his manager Mr B and asked what was going to be done but received no reply. Around the same time the complainant expressed his dissatisfaction with routes that he was given and the respondent took this to mean that he had resigned. The respondent requested him to return a month later which he did.

On 10th June 2016, the complainant was physically assaulted by Mr A who punched, kicked and spat at the complainant and threatened to kill him. The following day, 11th June 2017, a colleague of the complainant Mr C asked Mr B what measures were going to be taken to protect the drivers but did not get a reply. A complaint was made to the gardaí by the complainant and it was the understanding of the complainant that cctv on the bus would be downloaded and that the matter would be investigated.

The complainant was certified sick by his doctor from 11th June 2016 to 20th July 2016 following the incident. He was shocked that there was only one phone call from the respondent, to see how he was but in cross examination accepted that there were other calls but replied they were to do with sick pay and the cctv. He received no payment during this time and found that there was no cctv footage and that the gardaí could not proceed with an investigation as customers did not wish to give statements. It was detailed that a month later, on 16th July 2016 another driver was threatened by Mr A, the restaurant owner.

Upon the complainant’s return to work on 21st July 2016, he advised Mr B that he would not be able to do Route X anymore because he felt too traumatised by the assault. He detailed that he was accommodated for approximately 10 days with bus runs other than Route X.   However, on 31st July he was asked to do Route X again and advised both his manager Mr B and Mr B’s manager, Ms C, that he could not do this. Ms C told him that she was supportive of him and that they were working with the Gardaí to have other bus drivers give statements regarding the behaviour of Mr A.   The next day he was again surprised to find that he had been given Route X but felt too traumatised to do it.

Thereafter, the complainant felt he was offered less work and that the respondent continued to offer him mostly Route X albeit they knew he had a legitimate reason to refuse this run.   Each time he refused Route X they offered him little if any alternatives. Efforts were made by his representative to engage with the respondent in a letter dated 16 December 2016 regarding his difficulties but the respondent did not reply to their letter. He continued to attend his doctor and on 16th January 2017 he felt he had no alternative but to terminate his employment owing to what his gp in a letter described as the the “total lack of support from the company” and the impact on his health. It was put forward that the complainant had not received sick pay during his absence and that the absence was owing to the actions of the respondent

Evidence of Mr C

Mr C, a driver, with the respondent gave evidence that he raised the issue of the behaviour of Mr A with Mr B and asked what should employees do when stopping outside Mr A’s restaurant but the only advice that was given to him was to turn off his engine. He did not believe any advice was communicated to the other drivers. He confirmed that Mr A had also attempted to engage in aggressive behaviour to him.

Case law cited included Connolly v St James Hospital UD1275/2005, O’Connor v Dairymaster UD351/2012, Dwan v The Youth Development Project Ltd UD 1983/2011, Smith v Tobin UD430/1991 ELR253 with regards to the conduct of the employer going to the root of the contract of employment.

Efforts to mitigate his loss were detailed and the complaint’s representative also submitted that they wished to claim for the loss of pay during his sick leave as the sick leave was owing to the inaction of the respondent

The respondent refuted the complainant’s claims.

They confirmed that they were aware that he made a statement to the Gardaí regarding the alleged incident but they noted that in this statement he detailed “there was blood on my arm and shirt…but it wasn’t mine” which they believed suggested he had deviated from procedure and had not defused the situation as would have been expected of their drivers.

Efforts were made to offer the complainant work but he refused offers of work on a regular basis.   Details were provided of offers of bus routes made through text messages which the complainant refused on a regular basis. It was further detailed that reasons given for refusal of such runs ranged from anniversaries, holidays or that he was working elsewhere. Evidence was put forward of a picture from social media which showed the complainant painting on 18th March.

It was accepted that he had not received a written contract of employment but It was put forward that the complainant never invoked the grievance procedure which was available to him in the respondent’s handbook located in the drivers notice area and available in the office.  While it was accepted that they had no confirmation that he had received this grievance procedure, the respondent cited Conway v Ulster Bank LTD 474/1981 which had considered it unreasonable of the complainant not to utilise the grievance procedure. Further case law cited included Western Excavating ECC ltd v Sharp 1978 ICR 21 CA and McAllen v Torlane Transport Ltd EAT 692/96 M with regard to the reason for the complainant’s resignation being due his securing other work namely painting. Furthermore, the respondent’s action did not constitute a fundamental breach of any contractual term.

Evidence of Mr B

The Ops co-ordinator, Mr B, detailed that when he took on the complainant he advised him that the nature of the work was such that he would be ‘bounced around’ as it was not a full-time role and the organisation had an obligation to the other full time employees. He confirmed that the complainant asked not to do the routes where he would have to stop outside Mr A’s restaurant. He outlined that he offered the complainant the use of the respondent’s solicitor if the complainant wished to take a case against Mr A.

Evidence of Ms D

The Ops Manager detailed that the first incident was not reported by the complainant on the incident report form and disputed some details of the complainant’s report to the gardaí regarding the second incident. She confirmed that nothing specific was done with regards to directing employees on how to deal with Mr A and outlined that they accepted the complainant’s resignation because it was the advice of his doctor and they were not going to go against the advice of his doctor. She confirmed that they never referred him to a company doctor and that they do not pay sick pay and there are no exceptions to that.   She detailed that she could not take him off that route as she did not want to be accused of favouritism by other employees.

Evidence of Mr E

The manager Mr E outlined that he had taken the screen shot from social media as he thought it relevant that the complainant was not working but was painting but accepted that he did not know when the photo was actually taken.

The respondent disputed the efforts made by the complainant to mitigate his loss and disputed also that the respondent was responsible for any losses incurred during the complainant’s sick leave.

The claim, heard over the course of three days, is one of constructive dismissal pursuant to Section 1 of the Unfair Dismissal Act 1977. Section 1 of the Unfair Dismissal Act defines constructive dismissal as: “the termination by the employee of his contract of employment with his employer whether prior notice of the termination was or was not given to the employer in the circumstances in which, because of the conduct of the employer the employee was or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer”. The burden of proof, which is a very high one, lies on the complainant and it is necessary that he show that his resignation was not voluntary.

In reaching my conclusion I have carefully evaluated the evidence adduced in the course of all days of the hearing, and taken full account of the written and oral submission made by the parties including after the hearings.  

In relation to a breach of the contract of employment the Supreme Court held in the judgment in Berber v Dunnes Stores Limited [2009] IESC 10 that the test for whether the conduct had breached the implied term of mutual trust and confidence in a contract of employment is an objective one. Finnegan J. held:

“The test is objective. 2. The test requires that the conduct of both employer and employee be considered. 3. The conduct of the parties as a whole and the accumulative effect must be looked at.”

The Labour Court in the case of Paris Bakery & Pastry Limited -v- Mrzljak DWT1468, endorsed the legal test in respect of constructive dismissal as set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. The ‘contract test’ is set out as follows: “If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”

The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.” According to the Supreme Court in Berber cited above, “The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly to determine if it is such that the employee cannot be expected to put up with it.” Therefore, this definition places the burden of proof on the employee to show that his resignation was justified in all the circumstances.  

The complainant details that he was left with no alternative but to resign his position as the respondent failed to deal with his concerns regarding the behaviour of Mr. A whom had assaulted him and others and thus this assault had not been a once off event. It is noted that the complainant did not have a contract of employment and there was no evidence presented that he had been given the company handbook containing the respondent’s grievance procedure. I note that the nature of the complainant’s implied contract was one whereby he would be offered routes and could accept or reject the routes offered.

I note that the respondent suggested that the complainant’s failure to deal appropriately with the behaviour of Mr A had not helped the situation but I also note that others had similar altercations with Mr A including a customer. The respondent detailed that they were supportive of the complainant and offered him the use of their legal representative if he wished to personally pursue a legal case against Mr A. However, I find it extraordinary that despite numerous complaints made against Mr A there was no specific action taken by the respondent with regards to removing the risks associated with Mr A. The respondent outlined that the failure of the complainant to take on the runs offered to him was because he was working elsewhere and while it was accepted by the complainant that he did work on occasion elsewhere I accept that this was also the nature of his employment contract namely he could refuse the offer of runs as he saw fit. I also note the evidence of Mr B that their obligation was to the “full time employees”.

There appears to be a conflict of evidence regarding whether a grievance was raised and I note that the text messages from the complainant refusing routes are not text messages that would suggest that the complainant was refusing the runs because of a grievance.   However, overall, I prefer the evidence of the complainant that he did raise a grievance many other occasions including when the incident occurred, such that for a period of time the respondent did facilitate him with routes that did not stop outside Mr A’s restaurant.   However, they ceased facilitating him without any explanation and I note that during the hearing the respondent’s evidence was astonishing when they detailed that they could not continue to give him “special treatment” and thus failed to take any action with the risks associated with Mr A.

There is an onus on the respondent to ensure that their employees are comfortable in their work as detailed in the case of Smith v Tobin UD430/1991 ELR253. The instant respondent was on notice that Mr A might act the way he did and should have responded accordingly but failed to do anything that might prevent it happening on a second occasion which has been discussed in detail in Walker v Northumberland County Council ([1995] 1 All ER 737; [1995] 1 ICR 702.).

If the respondent was not entirely clear of the impact of the incident on the complainant, they were most certainly aware of his grievance by way of a letter from his representative on 16th December 2016 which detailed the stress and anxiety of the complainant. The respondent did not reply to this letter and the only explanation offered was that it came in around Christmas time but yet the respondent still had not replied to it by 16th January 2017 when the complainant issued his letter of resignation detailing he had “no alternative but to resign his position with immediate effect”.

Even then, the respondent failed to engage or question the complainant in relation to this resignation and readily accepted his resignation. While the complainant did not resign his position immediately after the incident in July 2016, I prefer the evidence of the complainant that his loss of offer of work, was mainly due to the respondent continuing to offer him Route X and doing nothing when he refused it because of the risks associated with Mr A on that route. I find that the behaviour of the respondent and his inaction repudiated the contract of employment such that the complainant was left with no alternative but to terminate his employment and thus his complaint succeeds,

I note the copious submissions made by both parties regarding mitigation and I am satisfied that the complainant has made efforts to mitigate his loss but thus far has only secured mostly short-term self-employed roles. I also note that the complainant was deemed unfit for work from 6th January 2017 – 9th August 2017.   With regard to calculating weekly remuneration and loss of earnings, the complainant relies on earnings prior to the July 2016 incident and the respondent relies on average earnings from the P60. SI 287/77 (Calculation of Weekly Remuneration)) Regulations 1977 outlines the manner in which weekly earnings should be calculated. I note that the complainant’s hours varied and therefore,

11. Where, in respect of the relevant employment, there is no number of hours for which employees work in each week that is normal for the employment, the weekly remuneration of each such employee shall be taken, for the purposes of these Regulations, to be the average amount of the remuneration paid to each such employee in the 52 weeks in each of which he was working in the employment immediately before the date of the relevant dismissal.

12. Where under these Regulations account is to be taken of remuneration paid in a period which does not coincide with the periods for which the remuneration is calculated, the remuneration shall be apportioned in such manner as may be just.  

With that in mind, I calculate the average weekly gross wage to be €361.13 being an average of the P60 and the number of weeks the complainant received payment for which I deem as “just” in the circumstances.

In accordance with s.7 of the Act, and taking the above into consideration, I order the Respondent to pay the Complainant the sum of €4,333.56 (12 weeks’ pay), which reflects the significant breach going to the root of the contract that was contravened and a further €4,333.56 (12 weeks’ pay) which reflects thefuture loss of earnings of the complainanttakinginto consideration that despite significant efforts to secure employment he has been unsuccessful to date and this may continue to be for a period of time in the future. Thiscombined award is therefore €8,667.12 (the equivalent of 24 weeks’ pay).

I find that the complaint made pursuant to the Unfair Dismissals Act is well-founded and the respondent shall pay to the complainant redress of the sum of €4,333.56 (12 weeks’ pay), and a further €4,333.56 (12 weeks’ pay) which reflects the future loss of earnings of the complainant. This combined award is therefore €8,667.12 (the equivalent of 24 weeks’ pay).

Unfair dismissal, constructive dismissal, assault,