ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00025439

Parties:

	Complainant	Respondent
Anonymised Parties	A Bus Driver	A Bus Company

Representatives

Self Represented

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00032164-005	11/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00032164-006	11/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00032164-007	11/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015	CA-00032164-008	11/11/2019
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00032164-010	11/11/2019

Date of Adjudication Hearing: 27/02/2020

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The Complainant was instantly dismissed and claimed the dismissal was unfair both on substantive and procedural grounds. He also stated he never received written terms and conditions of employment. He raised a number of other compatible complaints regarding his terms of employment but these were not pursued at the Hearing.

Summary of Complainant’s Case:

The Complainant made a verbal submission.

The Complainant was employed as a Bus driver from April 14th 2014 to November 3rd 2019.

On Sunday November 3rd 2019 he received a phone call from the owner of the business and was told that he was being dismissed as a result of a number of complaints. The Complainant denied any wrongdoing and that there was no justification for his dismissal. The Complainant denied knowing of any complaints, that they were valid or reasons for his dismissal and felt he had a good relationship with passengers and clients of the Bus Owner. The Complainant was not given the opportunity to properly defend his side of the case. The Complainant stated he was contacted by the Garda about the incident but they said it was one word against another. The Complainant stated that the incident in question was due to a road blockage and he went to another Bus Driver as both buses were facing each other on a small road and said “I will direct you” but neither driver wanted to reverse. The other driver told the Complainant he was not a good driver. The Complainant got a dash cam after the incident. He reported a case of bullying by the other driver to the Garda.

The Complainant stated he was owed tax by the Respondent that he felt was taken illegally.

The Complainant stated he was a Teacher for 34 years and was never disciplined. The Complainant wanted his reputation intact as it was affect8ng him in the local community.

The Complainant was never provided with any written terms and conditions of employment.

The Complainants hours of work per week varied and he earned approximately 200 Euros per week.

Summary of Respondent’s Case:

The Respondent accepted that he had not provided the Complainant with any written terms and conditions of employment.

The Respondent got a verbal complainant from a local resident on November 1st 2019 in relation to the Complainants driving. It took place at a Stop and Go roadworks and the local resident felt the Complainant was agitated and abusive towards to person controlling the Stop and Go road facility.

After the altercation the Respondent phoned a number of clients of the Respondent and who the Complainant drove passengers for. The Respondent was told of some shocking stories about the Complainant and they put some of the complaints in writing.

The Respondent stated that three Teachers of a client wanted the Complainant taken off the school run and the Secretary of the School also wanted him taken off the run.

The Respondent stated the tax due was as a result of the Complainant not having the tax allowances which he had got the credit for and this issue had nothing to do with his dismissal.

The Respondent gave long and hard thought to the situation for 2 days and decided to dismiss the Complainant as he felt he would lose business due to the Complainants behaviour. The issue came down to a health and safety issue for the Respondent as he had concluded passengers would not feel safe with the Complainant driving and the dangers he presented to the Respondents customers.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 3 of the Terms of Employment (Information) Act 1994 states the following:

3.—(1) An employer shall, not later than 2 months after the commencement of an employee's employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee's employment, that is to say—

(a) the full names of the employer and the employee,

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

(c) the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d) the title of the job or nature of the work for which the employee is employed,

(e) the date of commencement of the employee's contract of employment,

(f) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g) the rate or method of calculation of the employee's remuneration,

(h) the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i) any terms or conditions relating to hours of work (including overtime),

(j) any terms or conditions relating to paid leave (other than paid sick leave),

(k) any terms or conditions relating to—

(i) incapacity for work due to sickness or injury and paid sick leave, and

(ii) pensions and pension schemes,

(l) the period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee's contract of employment) to determine the employee's contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

As the Respondent admitted they did not provide the Complainant with a written statement of his terms and conditions of employment within two months of commencing employment I find the Complainants claim well founded and award him 500 Euro for breach of the Terms and Conditions of Employment (Information) Act 1994. (Reference No CA-00032164-005).

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.

The Law.

“6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of a kind which he was employed by the Employer to do.

(b) the conduct of the Employee

(c) the redundancy of the employee and

(d) the employee being unable to work or continue to work in a position which he held without contravention by him or by his employer of a duty or restriction imposed by or under any statute or instrument under statute.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

Also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her” submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

There are two core issues in this case. Firstly, did the Respondent have substantive grounds to dismiss the Complainant and secondly were fair procedures followed in dismissing the Complainant. It appears from the submissions that the Complainat was dismissed for his conduct.

During evidence it emerged that the Complainant was dismissed by phone, that he and the Respondent had different versions of events in relation to both the Stop and Go incident and the incident with another bus driver in a different company that the Respondent also brought into evidence at the Hearing. It also transpired that the letters of complaint the Respondent submitted to support his claim that clients had expressed concerns about the Complainants driving were all dated after the date the Complainant was dismissed and were not, obviously, shown to the Complainant prior to his dismissal or sent to the Respondnet in advance of his decision to dismiss. Therefore, any complaints used in the decision to dismiss were verbal. The Complainant had a right to see any complaints made against him in writing, if possible. The Complaint contested these verbal versions of events and had to right to have them independently investigated due to them being contested. Therefore, the grounds on which the Respondent relied upon for the dismissal were dubious.

The Complainant was also not invited to attend a Disciplinary Hearing where the allegations of safety concern were put to him by the Respondent, their potential seriousness for his continued employment or his right to refute them. Nor was the Complainant informed of his right to Representation during the dismissal “process”. No right of internal appeal was provided to the Complainant. At the Hearing the parties had very different versions of events. The Complainant provided a statement from a client to his good performance, stated how much he loved the job, that it was his reputation that was at stake in the community arising from the dismissal and that it was the principal of the dismissal not the size of the redress that concerned him the most. The Respondent stated he had serious safety concerns arising from the incidents and that some of his key clients were not happy with the Complainant and that in one case three Teachers had an issue with the Complainants behaviour.

Having considered all the various contributions to this case it is clear the Respondent had issues with the Complainant. However, none of these concerns were documented or discussed with the Complainant prior to his instant dismissal on a Sunday morning by phone. The Complainant was never given the opportunity to address the issues in a formal disciplinary meeting, no proper investigation into the alleged events took place, involving the Complainant, leading to the dismissal occurred or were documented, no notice to the Complainant was given about the serious potential impact to his employment of the disputed events, no right of representation was provided and no internal appeal mechanism was provided. The submission by the Respondent of letters of complaint dated after the dismissal are not really relevant as the dismissal decision had been taken when those letters did not exist, and one could even question why they were produced after the dismissal event other than to retrospectively justify the dismissal.

Based on all the above, I find that the Complainants dismissal was unfair on both substantive and procedural grounds and find his claim for unfair dismissal well founded. The events leading to the dismissal decision were contested and not fully investigated by the Respondent nor did they give the Complainant a proper forum to discuss the complaints and address them. A telephone conversation where the Complainant was dismissed was not an appropriate method to dismiss the Complainant. Similarly, the procedures (or lack of) to dismiss the Complainant fell far short of S.I. 146/2000 (Sections 6 and 7) where the proper procedures for disciplinary actions are set out in the absence of a formal disciplinary procedure as the Complainant had no written terms and conditions of employment.

I find the Complainants claim for unfair dismissal to be well founded and I award the Complainant 4,000 Euros compensation for his unfair dismissal. (Ref No CA-00032164-010)

Reference Numbers CA-00032164-006, CA-00032164-007 and CA-00032164-008 were not advanced at the Hearing due to duplication of claims and I deem them not well founded.

Dated: 9th April 2020

Workplace Relations Commission Adjudication Officer: Peter O'Brien

Key Words:

Unfair Dismissal