Complainant

Respondent

Anonymised Parties

Bus Driver

Bus Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00030003-001

31/07/2019

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

CA-00030003-002

31/07/2019

The Claimant made two complaints to the Workplace Relations Commission against his employer. He alleges that the Respondent constructively dismissed him from his employment within the meaning of Section 8 of the Unfair Dismissals Act, 1977 and had failed to pay the amount due to him under Section 6 of the Payment of Wages Act, 1991.

The Respondent rejects all the complaints and asserts that the Claimant was not dismissed but resigned his position with the company in circumstances that did not amount to constructive dismissal. The Respondent also rejects any contention that there are monies owed to the Claimant under the Payment of Wages Act, 1991.

The case was referred to me by the Director General of the Workplace Relations Commission to enquire into and give the parties an opportunity to be heard. Both sides submitted written submissions and I invited them to set out the details of and responses to the complaints.

I conducted an oral hearing of the complaints and responses on the 10th of December 2019.

Both parties attended the hearing on that day. Both sides were given the opportunity to state their respective cases and to contest the evidence adduced by the other side.

Neither side expressed any objection or dissatisfaction with the arrangements or conduct of the hearing.

The Respondent company operates a national bus service. The Claimant was employed by the Respondent on a temporary contract as a bus driver in April 2015. Thereafter progressing to a full-time position with the company in May 2016.

The Claimant submits that the company failed to respond adequately to several adverse workplace related incidents which resulted in a deterioration of his health and a number of certified absences from work. The cumulative effect of the adverse working environment rendered it impossible for him to continue in his employment and which failure mounted to an infringement of his rights under the Unfair Dismissals Act, 1977.

The Claimant further submits that the Respondent did not pay to him monies owed under the Payment of Wages Act, 1991.

The Claimant’s position is that he was placed in a situation that compromised himself and other people that he was responsible for by a supervisor acting on behalf of the Respondent when sent out in a bus with defective breaks that were reported by a previous driver and has been accused in the wrong on numerous occasions in relation to incidents that happened on buses in cases of mistaken identity.

The Claimant also asserts that despite repeated requests that information regarding such incidents be checked before approaching him, all such requests were ignored by the Respondents.

The Claimant contends that his appointment to the permanent staff was held back by one month due to an incident involving a passenger being verbally abusive to him and a minor incident on a route despite having no formal training on same.

His position is that he had an impeccable disciplinary record with the Respondent.

Having requested a rest day off and as a result having been removed from the rest day panel, the Claimant argues that this action by the Respondent resulted in significant loss of earnings.

Having been the recipient of vile verbal abuse and reporting same to the Respondent, there was no acknowledgment which resulted in a deterioration of his mental wellbeing, work related stress and certified absences from work the consequences of which effected his career advancement.

The Claimants also submits that the Respondent was in breach of their own Dignity and Respect at Work policy in several aspects in addition to their failure to adequately respond to complaints made by him and requests for information on how his career advance prospect could be improved.

In January 2019, the Claimant met the Respondent company in relation to

a.       Unsatisfactory Attendance

b.       Driving without due care and attention

c.       A ticketing issue on a given route.

His response is that his non-attendance was because of workplace stress and certified absence. The ticketing issue arose as a result of a directive from management. The charge of driving without due care and attention when requested as to who decided that he was driving in such a manner, no information was forthcoming by the Respondent the result of which, no disciplinary action was given by the company in relation to the three issues.

The Claimant maintains that the cumulation of a stressful and demoralising working environment came after he was instructed to drive a vehicle that the control panel was indicating “brake pad wear” with passengers on board, while the country was under a yellow warning for ice. He returned to the depot extremely stressed and informed management that he would be terminating his employment and later that day tendered his resignation giving two weeks’ notice.

The following day he telephoned in sick and on return to work was left sitting in the driver’s room and at lunch time was informed that his services were no longer needed.

The Claimant was first employed as a seasonal driver to cover annual leave of the regular staff on a fixed term contract due to expire in October 2015. Several vacancies had arisen, and seasonal drivers were retained and issued with new contracts to reflect their probationary status.

The Claimant was due to be appointed at the end of April 2016.

The Respondent submits that during the probationary period, several factors are considered before appointment to staff is made. As a consequence, because of that consideration, the Claimants probationary appointment to the staff was deferred for 3 months and subsequently reduced to 1 month on review.

The Respondent carries a significant number of Passengers per day on the various routes. City, suburban and provincial routes and receives feedback from passengers, both positive and negative and are obliged to follow up in a timely manner.

This the respondent submits require the supervisor to contact the driver, to secure their particular version of the event. This may involve contacting several drivers to identify the relevant driver.

In respect of the Claimant, the Respondent submits that some customer complaints were received, and apart from one month’s extension of his probationary period, no sanction was applied to him and he had no disciplinary record.

All customer complaints are dealt with under the Respondents agreed Internal Disciplinary procedures. This procedure makes provision for an individual discussion to take place between the supervisor and the employee to determine whether disciplinary action would be undertaken. In all such cases the employer is entitled to have a trade union representative or colleague present at any meeting between the Claimant and supervisor/manager.

The respondent cannot contact the driver while out on the road driving. It is common practice for the supervisor to contact drivers when they are off duty to request them to attend meetings.

The Respondent submitted that the Claimant had several accidents while driving during his employment all dealt with under the agreed procedures. The Claimant qualified for a Safe driving award in 2016, but due to insufficient attendance and a preventable accident, did not qualify for the award in 2017-2018.

In relation to promotions, all vacancies are advertised and open to all staff without discrimination and the most suitable candidates are chosen in line with Respondents recruitment and selection policy, feedback is given on request. The respondent’s position is that a grievance with the selection process should be raised through the Internal Grievance procedure.

On the 28th of January 2019, the supervisor met the Claimant accompanied by his union representative to discuss several issues, i.e. Unsatisfactory attendance; driving without due care and attention and an issue related to ticketing.

The Respondent claims that the level of attendance was a cause of concern as it impacted on the delivery of service.

The Respondent also asked about an incident on the 6th of December2018 and a report received from a passenger concerning a promotional fare on a specific route.

The Respondent specifically raised the issue of a refusal by the Claimant to drive a bus which was showing an amber warning light. Following a discussion with the Maintenance Department, the Claimant was informed that the warning light had no detrimental effect on the breaking system. This information was relayed to the Claimant who only complied after a direct instruction from the supervisor. However, the Respondent contends that he did not operate the full service later that morning on the 1st of February 2019. The service supervisor spoke to the Claimant, who indicated that he should have followed a direct instruction from the supervisor.

The Claimant became emotional, refused to accept the position outlined by the service supervisor. Arising from this intervention, the Claimant indicated that he was “fed up with the place” and was going out sick.

The Respondents position is that they informed the Complainant that if he walked off the job, it would amount to summarily dismissing himself to which the Claimant replied, “So be it”.

The Claimant subsequently submitted his resignation on the 1st of February 2019 with a finishing date of 14th of February 2019.

The Claimant reported for work on the 4th of February 2019 and as his duties were covered for that day he was asked to attend a meeting with the service supervisor. As the service supervisor was busy he could not meet the Claimant immediately. The Claimant did not present himself for duty between the 4th and 14th of February 2019 and was deemed to have resigned from the 4th of February 2019.

The Respondent contends that he had exhausted all his annual leave and was not entitled to any payment in respect of annual leave.

The Respondents position is that it was the Claimant’s decision to relinquish his employment. He failed to complete his two weeks’ notice period and did not avail of the opportunity to use the internal grievance procedure.

Complaint of Constructive Dismissal

Claimant seeking adjudication under Section 8 of the Unfair Dismissal Act

I have considered all the evidence in this case.

The Claimant worked with the Respondent for a period of just short of 4 years.

In evidence the Claimant submitted that his working relationship with the company was problematic. This resulted in a series of work-related illnesses brought about by the failure of the Respondent to address the issues raised, or to even engage with him in respect of same.

In addition, the Claimant submitted evidence that having been turned down on numerous occasions for career advancement, and when the company was asked how he could improve to be considered for promotion he received no response from the Respondent.

Dismissal within the meaning of the 1977 Act where;

The termination of the employee of his contract of employment with his employer, whether prior notice of termination was or was not given to the employer in circumstances in which, because of the conduct of the employer, the employee was, or would have been entitled or it was or would have been reasonable for the employee to terminate the contract of employment without giving prior notice of the termination to the employer.

Section 6 of the Act states:

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’.

The combined effect of these two provisions of the Act places an obligation on an employee to establish that the employer’s treatment of an employee was so serious that their resignation amounted to dismissal within the meaning of the Act.

In McCormick v Dunnes Stores ADJ00012803, the EAT held that the employee had to

demonstrate that he had “exhausted all internal procedures formal or otherwise in an attempt to resolve his grievance with his/her employer” before resigning.

In Conway v Ulster Bank Ltd UD 474/1981, the EAT held “by a majority that the Claimant did not act reasonably in resigning without first having substantially utilized the grievance procedure to attempt to remedy his/her complaints. An elaborate grievance procedure existed, but the Claimant did not use it. It is not for the tribunal to say whether using the procedure would have produced a decision more favourable to her, but it is possible”.

In UD 2166/2011, the EAT held “that a high bar must be surmounted in proving constructive dismissal”.

In this instant case, I have considered all the evidence, the respective submissions of both parties and the oral evidence at the hearing. I have also considered the relevant jurisprudence and whether it was reasonable for the Claimant to resign without invoking the grievance procedure that was in place in the Respondent company.

I find that the Claimant of constructive dismissal is not well founded for the following reasons.

1. While the Claimant was dissatisfied with the manner he was treated by the

Respondent, in the instant case with some justification, he failed to establish to my

satisfaction that they were objectively of such a magnitude that he would not have been

expected to put up with them while he processed a grievance through the established

procedure.

2. It was adduced in evidence that the Claimant was fully aware of the existence of the

grievance procedure and chose not to utilize the said established procedures.

Finally, I find that the Claimant decided to resign his employment in very difficult circumstances which I believe the Respondent contributed to. However, it did not amount to a constructive dismissal as set out in the relevant case law referred to above.

Based on these findings, I have decided that the claim fails and consequently the question of redress does not apply.

Section 6 of the Payment of Wages Act requires that I make a decision in respect of the Claimants claim that he is owed monies in respect of holiday pay, loss of salary and payments due as a result of removal of rest days.

Payment of Holiday Pay

1. The Respondent adduced evidence at the hearing in respect of the holiday pay paid to the Claimant during his time in employment with the Respondent. Having examined the documentation provided to which the Claimants representative concurred, I find that the claim in respect of holiday pay fails in its entirety.

2. A claim for loss of salary was not well founded as he did not work his notice period and therefore, the claim fails.

3. A claim in respect of removal of rest days which are voluntary was not proven and as

such was not well founded and fails.

I find that the Claimants claim that he was constructively dismissed under the Unfair Dismissals Act 1977 was not well founded and fails.

I find that the Claimants claim that he is owed monies under the Payment of Wages Act,1991 is not well founded and fails.

“Constructive Dismissal”

“Payment of Wages”