Complainant

Respondent

Anonymised Parties

A Driver

A Bus Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00021241-001

20/08/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00021241-002

20/08/2018

The complainant is a British citizen and he joined the respondent bus company as a driver on February 27th 2018. He complains that he was discriminated against because he was assigned to drive old buses, compared to his colleagues from eastern Europe, who he said, were rostered on newer buses.

On July 10th 2018, the complainant was dismissed at the end of a meeting which was called to discuss two accidents with the buses he was driving. He claims that his dismissal was unfair because the company did not follow proper procedures.

On July 4th 2018, the complainant was asked to attend a meeting with the human resources generalist and the operations manager. A copy of an e-mail produced in evidence states that the purpose of the meeting was to discuss an accident on April 12th and another accident on July 3rd. The e-mail stated that the complainant could be accompanied at the meeting by a workplace colleague. The mail also stated that the meeting was a formal meeting, but not a disciplinary meeting and he was informed that he would receive notification of the next steps within 14 days after the meeting. The HR generalist stated in her mail that the next steps could include:

§    An invitation to a meeting to discuss the outcome of the investigation, or

§    An invitation to a formal disciplinary meeting.

The complainant said that, because the meeting was not a disciplinary meeting, he didn’t bring anybody with him. However, at the end of the meeting, he was given a letter of dismissal and he was escorted from the building.

In the letter of July 10th 2018 which the complainant produced in evidence, the HR generalist said he was dismissed for the following reasons:

§    Customers’ complaints on 30th of March 2018;

§    Accident on the 12th of April 2018;

§    Accident on the 3rd of July 2018;

§    Your general lack of commitment to the role;

§    Your unsatisfactory performance levels.

Although he was informed that he could appeal against this decision, the complainant said that he was depressed and he couldn’t bring himself to appeal. He was unemployed until September 17th 2018, when he got another job as a bus driver.

The respondent did not attend the hearing.

From the evidence of the complainant, and from the letter of dismissal he received from the respondent’s HR generalist, it is apparent that he was dismissed because of poor performance, including the fact that he had two accidents on buses he was driving, on April 12th and July 3rd 2018. When he was dismissed, the complainant had been employed by the respondent for 20 weeks. He presented a copy of the company’s employee handbook at the hearing and page 5 contains the following clause on probation:

“You will join us on an initial probationary period for six months. This does not prejudice our right to dismiss in accordance with the notice provisions contained in your individual statement of main terms of employment…or without notice for reasons of gross misconduct, should this be necessary.   During this period, your work performance and general suitability will be assessed, and if it is satisfactory, your employment will continue. However, if your work performance is not up to the required standard or you are considered unsuitable, we may either take remedial action or terminate your employment, without recourse to the disciplinary procedure. At the end of the probationary period, you will again be assessed and, if satisfactory, you will become a member of regular staff.   If you have not reached the required standard, we may either extend the probationary period in order that remedial action can be taken or terminate your employment. Any continuous period of absence of four weeks or more will suspend your probationary period until you return to work.”

The complainant was invited to a meeting with the HR generalist and the operations manager to discuss two accidents. In the e-mail inviting him to the meeting, he was informed that the outcome would be one of two options; another meeting at which he would be informed of the outcome, or a move to a disciplinary hearing. It is the complainant’s case that the company did not follow its own procedures by dismissing him at the end of the meeting on July 10th.   On his behalf, his solicitor said that, when he was invited to the investigation meeting, he had an expectation that the accidents were being investigated. At no point was he informed that the meeting could result in the termination of his employment.

In the absence of any evidence from the respondent company, I must accept that the complainant was involved in two accidents where damage was caused to the buses for which he had responsibility. I also accept that the complainant was on probation and that the company handbook, which is referred to in the complainant’s contract, provides that he may be dismissed while on probation, without recourse to the full rigours of the disciplinary procedure. The issue of concern to me is that the complainant was invited to an investigation meeting and he was informed that it was not a disciplinary meeting. He was not alerted to the possibility that the outcome of the meeting could be that he would be dismissed, but, this is what happened. It is my view that this was misleading and unfair.

The complainant was employed for 20 weeks with the respondent and his P45 shows that, during that time, he earned €11,235, an average of €561 per week. As I have concluded that the procedures that ended with his dismissal were unfair, I recommend that the respondent pay him €1,122, equivalent to two weeks of his average weekly pay.

Under the heading of discrimination on the ground of race, the complainant said that his eastern European colleagues were rostered to drive buses that were newer than the buses he was required to drive. He said that on some days, he commenced his roster and did one leg of a return journey.   If he had a new bus on the way out, when he arrived at his destination, he would be given an older bus to drive back. He said that this was frustrating and annoying.

The respondent did not attend the hearing.

The Burden of Proof

The Equality Act 2004 inserts a new section, 85A, into the Employment Equality Acts 1998 – 2015.

“85A – (1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this section in the law is to place the burden of proof in the first instance on a complainant, to establish facts, which, on an initial examination lead to a presumption that discrimination has occurred. Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, he was treated less favourably than someone who is not British.

The Primary Facts

The complainant’s contention is that, compared to his colleagues from Poland and Lithuania, he was given older buses to drive. He was not able to produce any corroborating evidence to back up this contention. The respondent did not attend the hearing and I have no information to determine if, the requirement to drive older buses makes any difference to the quality of the working life of a driver. Based on the limited information available, I must conclude that the complainant has not set out the primary facts which would lead me to presume that he was discriminated against because of his nationality.

I have concluded that the complainant had not established the primary facts which show that he was discriminated against on the ground of his race. I have decided therefore, that this complaint is not upheld.

Disciplinary procedures, discrimination on the ground of race