Complainant

Respondent

Anonymised Parties

A Bus Driver

A Childcare Facility

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-00018712-001

25/04/2018

The issues in contention concern the alleged Unfair Dismissal of a Bus driver by a Childcare facility.

The Complainant was first employed in December 2015. On the 13th February 2018 she was called to the Offices of the Respondent. Present were Ms. XA, the manager and another managerial employee Ms XB. The Complainant was informed that the Facility had received a number of complaints regarding her driving of the Company Bus and her care of the children as her passengers. The keys of the bus were demanded from the Complainant. The Complainant asked what was happening and she maintained that she was told that “She was being sacked”.

Some of the driving/care complaints that had been received were read out to the Complainant but she was not afforded any opportunity to reply or challenge their veracity. The typed-up copies of the Complaints were later given to her at a meeting in her own house with the Respondent on the 6th March where the offer of a formal Statutory redundancy package was made.   This offer was declined by the Complainant.

In the Complainant’s Oral presentation her legal Advisor pointed to numerous alleged procedural flaws in the process of the alleged dismissal. Natural justice was denied, the alleged complaints were not presented in advance and could not be challenged, no representation was offered or suggested and no prior warning of the nature of the meeting of the 13th February was given. The requirements of Si i46 of 2000 The Statutory Code of Practice on Grievance and Disciplinary Procedures were nowhere in evidence.

2:1         Preliminary point / Age of Complainant and Section 2(1) (b) of the Unfair Dismissals Act,1977

The Respondent relied upon Section 2(1) of the Act – set out below for convenience.

2.— (1)

( b) an employee who is dismissed and who, on or before the date of his dismissal, had reached the normal retiring age for employees of the same employer in similar employment

The Complainant had been given a Contract of Employment which stated that the Normal Retirement Age in the employment was 66 years of age. The Complainant was now clearly older than 66 years of age and therefore could not bring a claim under the Act.

The Complainant Legal Advisor strongly contested this procedural point.

The Contract of Employment with the 66 Year clause had been given to the Complainant and signed for on the 20th December 2015. The Complainant was, at this stage ,68 years of age – a fact that was clear on her Driving licence.

I, as Adjudication Officer, did not accept the Respondent’s arguments for the following reasons. The contract of employment was clearly issued post the Complainant being 66 years of age. It is beyond any reasonable probability that the Respondent was not aware of the age of the Complainant at this stage. For example, the Respondent would have had to check the driving licence of the Complainant for Insurance purposes.

By issuing this contract the Respondent, in my view, clearly waived the age 66 requirement of the Employment Contact. The Respondent cannot now rely on the Age 66 clause in the Contract when they clearly employed an employee aged 68 in 2015 and continued to employ her until February 2018 when she was aged 70 /71 years of age.

Accordingly, I deemed the claim to be properly before me and the exclusion in Section 1(b) not to apply.

2:2         The substantive claim.

Without prejudice to the opening Procedural Point above the Respondent had received numerous complaints regarding the driving skills and the attitude of the Complainant. These complaints were presented in evidence. The safety of children in their care was paramount and they had no option but to remove the Complainant from Driving duties.

A Reasonable offer of Redundancy had been made on the 6thMarch, accompanied by the offer of a good employment reference.

The verbal allegations that the Respondent Manager had stated “you are being dismissed” at the meeting of the 13th February 2018 were denied. The Complainant had been paid for the remainder week following the 13th February. She had simply never come back and the meeting of the 6th March was an effort to amicable resolve issues. Unfortunately, it had not been successful.

No formal dismissal had ever taken place – the Complainant had simply, almost by default, ended her relationship with the Respondent,

3:1       The relevant Law -The Unfair Dismissals Act,1977; SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures; the requirements of Natural Justice.

Taking natural justice first this has been most clearly stated by Mr. Justice Flood in In Frizelle v New Ross Credit Union Ltd, [1997] IEHC.

Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

These principles were effectively codified in SI 146 of 2000 the Statutory Code of Practice.

They underpin the basic principles of the Unfair Dismissals act, 1977.

However, all cases rest on their own facts and evidence and I will now consider these.

3:2      Consideration of the Evidence

Having reviewed all the evidence, both oral and written, I came to the inescapable conclusion that the meeting of the 13th February was seriously legally flawed. The Complainant was not advised in advance of the contents /likely agenda of the meeting, no effort was made to present the evidence to the Complainant in a manner that she could consider and respond to, there was no opportunity to examine or question the authors of the witness statements, no representation was offered or advised, either Legal or other wise and there was no offer of a Post Dismissal Appeal Hearing by an independent Person.

I was in no doubt but that a de facto Dismissal had taken place at the meeting of the 13th February. The Bus keys were taken off the Complainant. There was some dispute as to whether or not she was invited back to a meeting on the following Friday and as to whether or not she had been told “to consider her options” in the interim. She was taken off the payroll that Friday and was not paid thereafter.

The meeting in the Complainant’s house on the 6th March with the redundancy offer and the RP50 Form was well intentioned by the Respondent Manager. Technically if the Complainant had accepted the RP50 offer the matters could have closed. However, she was well within her legal rights to decline this offer.

It was noted that it was at this meeting that the typed copies of the initial driving and lack of care complaints were given to the Complainant. It appeared that following this meeting relationships had broken down between the prties.

3:3         Conclusions and Finding.

The Dismissal was procedurally completely flawed. Taking the evidence alone, the Respondent had collected a variety of complaints but these were not given to the Complainant until well after the February meeting. No opportunity was given to the Complainant to cross examine or question the authors of these complaints. The Complainant was not advised in advance of the February meeting what was on the agenda and that her continued employment was in jeopardy. No opportunity to adjourn the first meeting and allow the Complainant to retain an advisor /representative and consider the evidence against her was afforded.

Accordingly, and in the light of numerous EAT and Legal precedents, the complaint of Unfair Dismissal is upheld.

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section 3 above for detailed reasoning.

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

CA-00018712-001

Case is well founded. The Dismissal is found to be Unfair.