ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00019470
Parties:
| Complainant | Respondent |
Anonymised Parties | A Bus Driver | A Bus Company |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
CA-00025417-001 | ||
CA-00025417-002 | ||
CA-00025417-003 | ||
CA-00025417-004 | ||
CA-00025417-005 | ||
CA-00025417-006 | ||
CA-00025417-007 | ||
CA-00025417-008 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant submitted five separate, but identical complaints which were listed for hearings as ADJs 19462, 19469, 19470 and 19472; the differences being only in the respondent’s name. All were withdrawn at the hearing except 19470. |
Summary of Respondent’s Case:
The complainant had two periods of employment with the respondent from December 4th 2017 to January 15th 2018 and from April 20th 2018 to August 27th 2018. He had been employed as Night Driver. From the outset he had difficulties with his supervisors and complained about their attitude and the way they spoke to him. The complainant had been due to have a performance review on January 15th ,2018 which had to be postponed as he had sustained and injury and was off sick. He was deemed fit to return to work in April 2018 but the respondent assigned him to day work on the basis of the continuing difficulties with his supervisors. He complained regularly about the buses he was allocated saying that they were not roadworthy, although all vehicles were fully certified as being roadworthy, had an up to date DOE issued by the Road Safety Authority and were cleared by the respondent’s engineer. There was an incident when the complainant, on being asked by a client company to sign a Health and Safety document by a contractor declined to do so, although all of his co-workers did so. The complainant became confrontational with the client and he had to be replaced on that route. On August 27th, 2018 he refused to take out the allocated bus alleging that it was not roadworthy. The complainant was generally disruptive and in due course as he was within the trial period his employment was terminated. |
Summary of Complainant’s Case:
The complainant says he was dismissed because he had made Protected Disclosures and repeatedly reported safety concerns to the respondent. The termination was unfair as the respondent failed to comply with its own procedures as set out in its Handbook and he was given no hearing prior to the termination of the employment. Specifically, on August 27th, 2018 he had discovered a fault with the indicators on the bus assigned to him and was told to take another vehicle. While he was waiting for this vehicle he saw a colleague take out the vehicle with the faulty indicators. When the bus assigned to the complainant arrived it emerged that its roadworthiness certificate had expired. Later that morning he was invited to the company owner’s office and asked to explain what had happened earlier. He explained but the owner played down the significance of the faults. This was an attempt to prevent the complainant carrying out his health and safety obligations. Following further exchanges the owner asked him to leave as he had stated that he was not happy in the company. On querying this the complainant was told that he was being dismissed. The complainant makes two complaints of penalisation under the Health, Safety and Welfare at Work Act, 2005 (CA-00025417-007) and the Protected Disclosures Act 2014. CA-00025417-008). In his evidence to the hearing he said that on December 21st, 2017 he had raised issues related to bullying and alleged dangerous driving. These related to a driver navigating a roundabout the wrong way around (i.e. counter-clockwise) and to another driving while holding a mobile phone. He makes further complaints regarding his entitlements to a notice payment pay and annual leave (CA-00025417-001 and 002 respectively) and defects in his statutory statement of terms of employment (CA-00025417-003). |
Findings and Conclusions:
The complainant makes complaints of unfair dismissal under both the Unfair Dismissals’ Act 1977 (CA-00025417-004) and the Industrial Relations Acts (CA-00025417-005). In relation to the first of these his service with the company was as outlined above; about six weeks from December 4th, 2017, followed by a break of three months, and then a further period of just over four months. Section 11(1) of the Protected Disclosures Act, 2014 provides that the dismissal of an employee for having made a protected disclosure is automatically unfair even where the employee had less than one year’s service. The starting point therefore is whether the complainant falls within this provision. As noted above the complainant also made two complaints of penalisation under the Health, Safety and Welfare at Work Act, 2005 (CA-00025417-007) and the Protected Disclosures Act 2014. CA-00025417-008). The first of these related to a conversation on December 21st, 2017 and the complainant confirmed that this refers to CA-00025417-007; the Health and Safety complaint. It is difficult to see how the complainant can link this to the termination of his employment the following August, especially as he had earlier terminated his employment in January and been re-employed in April. The respondent gave evidence that the December complaint related only to alleged speeding and the attitude of the night duty staff and said there was no reference to it being a complaint under the Health and Safety Acts or a Protected Disclosure. The only other incident was that on the morning of the termination; August 27th, 2018 when the complainant raised various defects in the vehicles assigned to him. In respect of this the respondent gave evidence that the second bus (which the complainant alleged had defective certification) was, in fact compliant and roadworthy. He was not asked to take out the first bus about which he complained. That is not entirely relevant to the point as to whether even a valid complaint about such a matter can properly be considered to be a ‘disclosure’ under the 2014 Act. That Act, at section 6 requires the disclosure to be made to the worker’s employer or to another person and section 7 (1) states that; A disclosure is made in the manner specified in this section if the worker- (a) Makes the disclosure to a person prescribed under subsection (1) (a), and (b) Reasonably believes- (i)That the wrongdoing falls within the description of matters in respect of which the prescribed under subsection (2)(b), and (ii) That the information disclosed, and any allegation contained in it are substantially true. Subsections (2) (a) and (b) refer to the nature of persons who may be ‘recipients’ of disclosures. Section 5 (3) lists the ‘relevant wrongdoings’ for the purposes of the Act, and incudes the likelihood of the commission of an offence, failure to discharge a legal obligation, a possible miscarriage of justice, a threat to health and safety etc. The respondent does not have a ‘whistleblowing’ policy. The question that arises is at what point do what might be regarded as routine complaints such as will arise in most workplaces become elevated to the level of a protected disclosure. Certainly, defects in a vehicle of the type referred to are possible road traffic offences. However, the Act clearly envisages a significantly higher level of gravity and some more formal process than merely mentioning these to a supervisor, as the sections set out above indicate, and not every complaint to a supervisor about defective equipment for example will qualify, even where there may be some possible minor breach of a regulation, for example. In addition, the fact that the alleged defects were raised only on one occasion and no opportunity was given to the respondent to correct them also plays a part in determining the status of the complaint. There is no evidence to support the complainant’s assertion that he ‘repeatedly reported safety concerns to the respondent’ and I find that he did not. The Act requires the disclosure to be made to ‘a prescribed person’. In my view and on these facts the conversation between the complainant and his supervisor (and there was some conflict as to whether he was his supervisor) falls considerably short of the standard required to ground a disclosure under the Act and I find that it is not such a disclosure. Therefore, given that finding his complaint under the Unfair Dismissals Act fails as he does not have the required one year’s service. However, this does not affect his complaint under the Industrial Relations Act. The circumstances of the termination following the conversation with the owner of the company are set out above. In its written submission the respondent rather weakly claimed that the complainant was ‘deemed a difficult employee who frequently criticised co-workers and the company in general’. In an ideal world perhaps there would be no such ‘difficult employees’, however the respondent defines this term, but in the real world the management of such situations is simply part of the everyday responsibility of running a business and its ‘human resources’. There are many tools for doing so and underpinning all of them is the principle of fairness. In the case even of probationary employees that means active oversight of performance issues, mentoring, notice of improvements required, and in due course where none of this is achieving the required outcomes, a fair process to terminate the employment; even within the first year of employment and a probationary period. All of this was conspicuously absent in relation to the complainant and I find that the dismissal was unfair. Complaint CA-00025417-001 is a claim for the payment of notice and duplicates CA-00025417-006 He makes further complaints regarding his entitlements to pay and annual leave (CA-00025417-002) and payment of his notice (CA-00025417-006). The respondent accepts that that these claims are valid and has undertaken to pay them. As I am required to make a decision on all complaints I do so but if they have been paid at the time of the decision that will dispose of the matter. The complainant alleges defects in his statutory statement of terms of employment (CA-00025417-003) in relation to the respondent’s legal name. In the circumstances it led to a degree of inconvenience for the complainant (and the WRC) in relation to the number of complaints submitted and I uphold the complaint. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints/dispute in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
For the reasons set out above I do not uphold complaints CA-00025417-001, 004, 007 and 008. I uphold CA-00025417-002 and award the complainant a payment to be calculated on the basis of outstanding annual leave due to him. I uphold CA-00025417-005 and award the complainant €5,000.00 I uphold CA-00025417-006 and award the complainant one week’s pay. |
Dated: June 28th 2019
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Dismissal, whether whistleblowing |