Complainant

Respondent

Anonymised Parties

Bus Driver / Tour Guide

Bus Tour Operator

Representatives

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00020478-001

10/07/2018

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

CA-00020478-002

10/07/2018

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

CA-00020478-003

10/07/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00020479-001

10/07/2018

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

CA-00020479-002

10/07/2018

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

CA-00020479-003

10/07/2018

The Complainant was employed by the Respondent as a Bus Driver / Tour Guide from early September 2015 until 3 May 2018.

The Respondent’s business model changed in April 2018 and the Complainant’s role was no longer required.

The Complainant is claiming that he was not offered suitable alternative employment and is seeking a redundancy payment and payment in lieu of notice.

The Respondent rejects the claims.

The Complainant submits that he commenced employment as a Driver/Tour Guide with the Respondent on 1 September 2015

The Complainant submits that his job entailed driving a hop on/hop off tour bus along a set route in Dublin city and providing a commentary on the places of interest along the route e.g. Dublin Castle, Christchurch Cathedral, Guinness Storehouse, etc. The Complainant says that he enjoyed his job and that it was seen as a prestigious job within the transport industry.

The Complainant submits that his wages were €150 per day and he was also paid commission on ticket sales. According to the Complainant, he usually worked 4 days per week.

The Complainant submits that in October 2017, the Complainant and his colleagues were advised that the service would cease for the winter of 2017/2018 but would recommence on 1 March 2018. The Complainant submits that during the winter period the Drivers and Driver/ Tour Guides were required to work elsewhere within the Respondent organisation.

The Complainant submits that during the winter period his salary was greatly reduced – from €150 per day plus commission to between €80 to €120 per day with no commission.

The Complainant submits that during the winter period, he also did some driver/guide work to the Giants Causeway for which he was paid €150 per day.

The Complainant submits that he found all the winter work very stressful as it involved long hours, unsocial hours, difficult driving and poor working conditions. He asserts that he also found it difficult to manage financially on the reduced wages. He felt that he was “doing rubbish work” because he needed the money.  

The Complainant submits that the hop on/ hop off tour did not recommence on 1 March 2018 and on several occasions throughout the month of March he asked when it would be restarting. He was invariably told it would be “soon”.

The Complainant submits that by the end of March 2018 he was struggling financially and finding the winter work increasingly stressful. When the hop on/hop off bus tours had not recommenced by 3 April 2018, the Complainant says that he contacted his Line Manager electronically on WhatsApp and asked when it was due to restart. The Complainant maintains that his Line Manager replied that it would be restarting “very soon” but the detail was “secret sauce”.  

The Complainant submits that he became ill in mid-April and was off work for 3 weeks due to work related stress.

The Complainant submits that when he returned to work on 3 May 2018 he was informed by his Line Manager that the Respondent had decided to restart the hop on/hop off bus tours with drivers only. Passengers would be provided with headphones on which they could listen to a pre-recorded commentary on the places of interest on the route. According to the Complainant, his Line Manager stated that the position of Driver/ Tour Guide no longer existed.

The Complainant submits that he was then verbally offered three alternative employment opportunities with the company as follows:

·         Driver on the hop /on hop off tours at a daily rate of €120 with no commission

·         Coach driver/tour guide on the Giants Causeway tour at €150 per day with no commission

·         Supervisory role on a part-time basis at a daily rate of €150 with no commission

The Complainant submits that he considered these offers to be unreasonable for the following reasons:

Driver on hop on/hop off tours

The Complainant submits that he was paid €150 plus commission per day as a Driver / Tour Guide. He asserts that the proposed payment of€120 per day with no commission would represent a substantial cut in his wages of 20% plus commission. The Complaint submits that he was paid a reduced wage over the winter period and that he was struggling to manage financially on this reduced wage. 

Following the hearing, the Complainant submitted a sample of payslips from 2016 and 2017. Per the payslips submitted, the average commission paid as a percentage of gross pay was 7%.

Coach driver/tour guide on Giants Causeway tour

The Complainant submits that he found the Giants Causeway tours difficult and stressful. The Complainant submits that the Giants Causeway tour entails a round trip of approximately 600 km during which he was driving and guiding a coach for approximately 13 hours, sometimes on narrow country roads and always through rush hour traffic in Belfast both en-route and on the return journey. Additionally, the Complainant maintains that the Driver/Tour Guide is responsible for ensuring the well-being of around 50 customers throughout the entire day. The Complainant also asserts that the rate of pay at €150 per day is around €100 per day less than the rate paid by other Dublin based coach tour operators for the same tour. The Complainant submits that he would not be paid commission for the Giants Causeway tour.

The Complainant submits that his normal working day was 8.30am to 6.30pm. However, on the days he was doing the Giants Causeway tour he would have to pick up his coach at 6.30am and would not return until after 8pm.

The Complainant submits that he felt under pressure because a coach is much more expensive than a bus and that if he damaged the coach he might be asked to pay for it. Furthermore, he maintains that if he was delayed on the route, there was a possibility that he might be in breach of the RSA restrictions on driving time. The Complainant asserts that he would also be required to balance and lodge the payments which he had received during the day. The Complainant submits that he found this all to be very stressful.

The Complainant believes that the long hours and the unsocial work involved in the Giants Causeway route had contributed to his work related stress which resulted in a work absence due to illness.

The Complainant submits that the Respondent made an offer to him to increase the daily rate for the Giants Causeway tour to €200 after his employment had been terminated but that this rate was still less than what competitor tour operators paid to their drivers for the same route.

Part-time supervisory role

The Complainant submits that because the offer was not in writing, he had no detail of what the role would entail.

The Complainant felt that the duties were completely different to his current duties in that he would be required to supervise staff and organise rotas. The Complainant asserts that he would also be involved in the first stages of the disciplinary process.

The Complainant submits that he had ample opportunity in the past to apply for supervisor vacancies when they arose in the Respondent organisation and that he had never done so. He maintains that the Respondent was aware that he never wanted to take on the additional responsibility and the management role that this position entails.

The Complainant submits that he did not possess the necessary skills or aptitudes to enable him to take on the proposed supervisory role.

The Complainant maintains that the physical working environment for supervisors in the Respondent’s bus depot was appalling as it was in bad condition and poorly maintained.

The Complainant submits that as his position is redundant and as the Respondent has been unable to offer him suitable alternative employment, he is entitled to a redundancy payment.

The Respondent submits that the Complainant commenced employment with the Respondent on 2 September 2015 as a Driver/Tour Guide on their Dublin city tours. The Respondent submits that the Complainant was a fantastic guide.

The Respondent submits that in September 2017, they came to the decision to discontinue the Dublin city tours during the winter season and to reopen in the spring of 2018.

The Respondent submits that, due to difficulties recruiting drivers, they did not know when the Dublin City tours would be starting back.

The Respondent submits that in 2018 it was decided to change their business model and to become more reliant on their audio guiding system which operates on GPS co-ordinates which meant that, in future, the Dublin city tours would be provided using drivers rather than Driver/Tour Guides as had been the case in the past.

The Respondent submits that the rate of pay based on three trips around Dublin city as a Driver/Tour guide was €150 during 2015, 2016 and 2017 plus commission. During the same time, a driver was paid €100 based on three trips per day. The Respondent did not submit any evidence in relation to the level of commission paid to the Complainant.

The Respondent submits that when they changed the model in 2018, they increased the driver remuneration by 20% to €120 based on 3 trips per day. The Respondent believes that this was a happy balance as there were fewer responsibilities for the drivers than for the Driver/Tour Guides.

The Respondent submits that the Complainant returned to work on 2 May 2018 after a period of sick leave. The Respondent submits that the Complainant’s Line Manager and the HR Executive met him to see how he was after his sick leave. The Respondent submits that at the meeting the Complainant was informed of the restructuring and verbally offered the following alternative roles:

·         Dublin City tour driver at a daily rate of €120 with no commission payable

·         Day tour coach driver at a daily rate of €150 per day with no commission payable

·         Combined role of Supervisor and day tour coach driver at a daily €150 per day with no commission payable

The Respondent submits that these were genuine offers. The Respondent submits that the Complainant had worked across all three facets of the business during the winter period and undertaken all three alternative roles.

The Respondent asserts that the accommodation condition for drivers was of the standard required in a bus garage.

The Respondent submits that he offered the Complainant payment of €200 for the Giants Causeway tour on 26 May 2018 after his employment had terminated.  

The Respondent submits that as per their contract of employment, an employee may be asked to work additional hours as necessitated by the needs of the business.

The Respondent submits that at a staff meeting at the end the 2017 season the Complainant stated he was willing to do service work, day tours or any other duties that could be facilitated.

The Respondent submits that they are of the opinion that they provided the Complainant with alternative employment. Furthermore, they assert that they offered the Complainant training for any roles he was not familiar with and access to all of the various support structures which exist within the business.

The question for me to decide is whether the complainant is entitled to redundancy or whether the refusal of the offers of alternative employment was unreasonable. The respondent disputes the claim for redundancy and states that the employee was offered suitable alternative employment.

Section 15(2) of the Redundancy Payments Act 1967 provides that an employee is not entitled to redundancy if:

“(a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.”

In essence, in reaching a decision in this case, I am required to consider (i) the suitability of the of the offers of alternative employment made by the Respondent to the Complainant and (ii) whether the Complainant’s decision to refuse each of these offers was reasonable in all the circumstances.

The English EAT has provided some useful guidance in relation to the appropriate test in Cambridge & District Co-operative Society Ltd -v- Ruse [1993] I.R.L.R. 156 at 158, when considering the similarly worded provisions of the British legislation, holding that the question of “the suitability of the employment is an objective matter, whereas the reasonableness of the employee's refusal depends on factors personal to him and is a subjective matter to be considered from the employee's point of view”.

With regard to the first component of the test, I am guided by the Labour Court’s determination in Cinders Limited and Celina Byrne (RPD1811), where the Court found that by offering the Complainant in that case a number of options to retain her in their employment, the Respondent, from an objective perspective, satisfied the first leg of the test proposed by the English EAT in Cambridge. Likewise in this case, the Respondent offered the Complainant a number of alternative positions to try to retain him in their employment. I find, therefore, that the Respondent satisfied the first part of the test.

The second part of the test concerns the Complainant’s perspective on the proposed alternative role.   I must now determine, therefore, whether the Complainant’s refusal to accept any of the alternative positions put forward by the Respondent was subjectively justified.

Driver on hop on/hop off tours

I note that the Complainant was paid €150 per day plus an average commission of 7% during 2016 and 2017 when he worked as a Driver/Tour Guide on the Dublin hop on/hop off tours.   I am not satisfied that the alternative offer to work as a driver on the Dublin hop on/hop off tours on a daily rate of €120 with no commission constitutes a reasonable offer as it represents a substantial reduction in the Complainant’s remuneration.

Coach driver/tour guide on Giants Causeway tour

I note the Complainant’s contention that if he were to accept that offer of employment as a coach driver / tour guide on the Giants Causeway tour, his hours of work would increase substantially yet his remuneration would decrease as he would no longer be paid commission. I also note the Complainant’s concerns regarding driving distance, compliance with RSA requirements and increased responsibility. I note the Complainant’s contention that the Respondent’s offer of 26 May 2018 to increase the daily for this position to €200 still less than competitors were paying for the same work.

I am not satisfied, therefore, that the offer to work as a coach driver/tour guide on the Giants Causeway tour constitutes a reasonable offer.

Part-time supervisory role

I note the Complainant’s assertion that he did not have the skills or aptitude for the role of supervisor. I also note that he did not apply for similar roles in the past. Given the Complainant’s stated aversion to working in a supervisory capacity, I am not satisfied that the offer of employment as a part-time supervisor constitutes a reasonable offer.

Taking all of the foregoing into consideration, I am upholding the complaint and I find that the complainant is entitled to his statutory redundancy.

Start Date

I note that the parties did not agree on the Complainant’s start date – the Complainant submits that it was 1 September 2015 while the Respondent submits that it was 2 September 2015.

The Complainant did not present any evidence to support his position.

The Respondent presented copies of the Complainant’s “Statement of Main Terms of Employment” which was issued to the Complainant at the commencement of his employment with the Respondent and was signed by both parties. The Respondent also submitted a copy of the Complainant’s “New Employee Details” form which was signed by the Complainant. Both of these documents contain a reference to a starting date of 2 September 2015.

I find, therefore, that the start date for the Complainant’s employment with the Respondent was 2 September 2015.

Based on the totality of the evidence adduced, I find that the complaint is well founded and award the Complainant a redundancy lump sum based on the following:

Date of Commencement:            2 September 2015

Date of Termination       :             3 May 2018

As the Complainant’s weekly pay may have varied over the 52 weeks prior to the termination of his employment, his weekly rate of pay is to be calculated in accordance section 16(2) of Schedule 3 of the Redundancy Payments Act 1967 - 2014.

The Complainant submits that he was made redundant without any consultation, prior warning or notice.  

The Complainant maintains that the Respondent made no attempt to contact him prior to making him redundant. Furthermore, he contends that he was not given any notice whatsoever of the impending redundancy or the termination of his employment. He believes, therefore, that he is contractually and statutorily entitled to pay in lieu of notice.

The Respondent submits that the Complainant was not made redundant and that he walked out of the business without giving any notice. The Respondent submits, therefore, that the Complainant is not entitled to notice.

In light of my finding above that the Complainant is entitled to a redundancy payment, I also find that the Complainant is entitled to notice.

I note that the Complainant has been in the continuous service of his employer for more than two years but less than five years.

Accordingly, I find that, under Section 4 of the Minimum Notice & Terms of Employment Act 1973, the Complainant is entitled to two weeks’ notice.

In respect of the specific complaints, the first complaint (reference CA-00020478-002) relates to minimum notice under the Minimum Notice & Terms of Employment Act, 1973 while the second complaint (reference CA-00020478-003) relates to notice under the Complainant’s contract of employment.

Given that the notice entitlement is the same under both headings i.e. two weeks, I find that there is a duplication in the complaints submitted by the Complainant. I find, therefore, that the second complaint is not well founded and the award is made pursuant to the first complaint.

I find that complaint CA-00020478-002 is well founded and I direct the Respondent to pay the two weeks’ wages, subject to any lawful deductions, to the Complainant within 42 days of the date of this Decision.

As the Complainant’s weekly wage may vary, his weekly rate of pay for the purposes of calculating his notice payment is to be calculated in accordance Section 3 of the Second Schedule to the Minimum Notice & Terms of Employment Act 1973.

For the reasons stated above, I find that complaint CA-00020478-003 is not well founded.

Redundancy – reasonable alternative offers