UDD207

Background

The Appellant was employed by the Respondent as a driver from 29^thAugust 2016 until December 2016 or January 2017 when the employment terminated. The parties dispute the fact of dismissal and the date of termination of employment.

The Respondent is a bus operator and was contracted by Bus Eireann to operate school bus services. The Appellant was assigned as part of that contract to transport children with special needs to and from school.

The Appellant contends that he was dismissed for making a protected disclosure and consequently, notwithstanding that his service at the date upon which he contends he was dismissed from employment was less than twelve months, that, by operation of the Act at Section 6(2)(D), he is not excluded from the protection of the Act.

The Appellant contends that he was dismissed on 2^ndDecember 2016. The fact of dismissal on that date or at all is in dispute.

Summary position of the Appellant.

The Appellant submitted that he had made a protected disclosure within the meaning of the Protected Disclosures Act, 2014 to the Principal of a school on 23^rdNovember 2016. He submitted that he also, upon receipt of a phone call from the Respondent on the same date, made the Respondent aware of the matters which he had brought to the attention of the school Principal.

A Bus Inspector of Bus Eireann came to the Appellant’s bus on 24^thNovember and the Appellant signed a paper that day.

The Appellant received a further three calls from the Respondent; one on 24^thNovember wherein a matter related to a pole was raised; one on 25^thNovember wherein the Respondent stated that he, the Respondent, had received a call from the Principal of the school who related that the Appellant had been ‘talking about Labour Courts’; and a further call on 30^thNovember advising the Appellant that the Principal wanted the Appellant to go to her office and apologise.

On 1^stDecember 2016 the Bus Eireann Inspector called to the bus and said he had had a complaint about the Appellant’s driving and something about a pole was mentioned.

On 3^rdDecember 2016 the Appellant submitted that the Respondent asked to meet the Appellant in the yard. At that meeting the Respondent showed the Appellant an e-mail the Respondent had received from the Bus Eireann Inspector. The e-mail said that Bus Eireann had received complaints about the Appellant’s driving and that he had followed the Appellant for part of a journey. The mail stated that the Appellant had driven at 60kph in a 50 kph zone and that the Appellant was to be replaced. The Respondent advised the Appellant that it was in the Respondent’s contract with Bus Eireann that Bus Eireann could have a driver replaced for any reason. The Appellant asked the Respondent to do a ‘walk around’ tour of the bus.

The Appellant submitted that both he and the Respondent spoke openly about ‘this being a coverup’. The Appellant submitted that the Respondent stated that ‘he had no choice but to let me go’ but that he would give him a good reference.

On 10^thJanuary 2017 the Respondent called the Appellant to say that he had asked Bus Eireann for an official letter on Bus Eireann headed paper stating the reasons why they wanted the Appellant removed from the job. The Respondent advised the Appellant that he had told Bus Eireann that if he did not receive the letter by 12 noon on the next day he would have the Appellant re-instated in the job.

On 11^thJanuary the Appellant received a copy of a letter from Bus Eireann from his Respondent. It contained allegations as regards the Appellant allegedly being intimidating and argumentative towards the escorts, unsafe driving and being aggressive and unapologetic towards the Bus Eireann inspector. The letter cited the contract between the Respondent and Bus Eireann and required that the Appellant not be employed on any school transport services operated on behalf of Bus Eireann. That letter had issued from Ms SG who was the Regional School Transport manager East of Bus Eireann.

The Appellant submitted that on 17^thJanuary he met with the Respondent. He submitted that the Respondent had, inter alia, offered him a driving run that evening. The Appellant refused that offer because he was suspicious.

On 24^thJanuary 2017 the Appellant received wage slips in the post and the last slip was dated 9^thDecember 2016 and was in respect of the week ending 2^ndDecember 2016. On 26^thJanuary he received a P45 stating that the date of cessation of his employment was 20^thJanuary 2017.

The Appellant submitted that, while the contract of the Respondent with Bus Eireann provided that Bus Eireann could require the removal of a driver for any reason, that contract also provided that the Respondent must secure the written agreement of drivers to this provision of the contract. The contract stated that the contract itself was conditional on the Respondent securing the agreement of drivers to the clause allowing Bus Eireann to require the removal of a driver. The Appellant submitted that he had never agreed to the clause allowing bis removal at the request of Bus Eireann.

The Appellant submitted that the reason he was dismissed was because he had made a protected disclosure to the principal of a school on 23^rdNovember 2016 and that, on the same day, he had advised the Respondent of the issues raised with the school Principal.

Summary position of the Respondent

The Respondent submitted that he was subcontracted by Bus Eireann to operate school bus services and that the Appellant was employed on that contract to transport children with special needs to and from school.

On or about 23^rdNovember 2016, the Respondent received a phone call from the Principal of a school in relation to an altercation the Appellant had with an employee of the school who escorted the children on the bus being driven by the Appellant. It was submitted that Respondent received a call subsequently from either the Principal or Bus Eireann conveying an allegation that the bus being driven by the Appellant had mounted a pavement and collided with a lamp-post.

The Respondent advised the Appellant that a complaint had been received by Bus Eireann in relation to the appellant’s driving and his having acted in an intimidating manner toward an escort on the bus. As a result of this complaint, a Bus Eireann inspector had observed the appellant while he was driving the bus. The inspector advised the Respondent that he had observed the Appellant driving with excessive speed and failing to slow down at the approach to speed ramps.

The Respondent received an e-mail from the Bus Eireann inspector dated 2^ndDecember 2016 informing the Respondent of the inspector’s concerns regarding the driving of the Appellant. That e-mail also contained a statement as follows:

• “This type of driving cannot be tolerated and I need you to replace him with another driver immediately”

The Bus Eireann contract makes provision as follows:

• Bus Eireann reserves the right at its absolute discretion to object at any time to any person nominated or engaged by the contractor as driver of any school bus. Without prejudice to the forgoing, it is a condition of this contract that in the event of BE informing the contractor of its objection to any driver, the following provisions shall apply

The Respondent removed the Appellant from the Bus Eireann contract and sought confirmation that Bus Eireann were instructing them that the Appellant could not operate on any of its school routes. Confirmation was received from the Regional School Transport Manager East of Bus Eireann in a letter dated 11^thJanuary 2017. The letter was actually dated 11^thJanuary 2016 but that was clearly a typographical error.

The letter of 11^thJanuary referred to the terms of the contract between Bus Eireann and the Respondent and stated that Bus Eireann had received a formal complaint regarding the behaviour of nominated Driver ML (the Appellant). The complaint referred to the intimidating and argumentative behaviour of the driver towards escorts on the service. The complaint also alleged that the Appellant’s driving was unsafe, referring to a particular incident whereby the driver reversed into a lamppost. Bus Eireann, in the letter, went on to state that following further investigation carried out by the North Dublin School Transport Inspector, the driver was witnessed driving over the speed limit and in a dangerous manner. It stated that when asked about his ongoing issue with the escort, the driver was aggressive and unapologetic toward the inspector. Finally, the letter stated that it had been decided that the driver is not suitable to operate as a nominated school transport driver. The letter sought confirmation by return that the Appellant would not be employed on any school transport services operated on behalf of Bus Eireann whether under contract or ad hoc

The Respondent submitted that following the communication of 2^ndDecember 2017 the Appellant was removed from the Bus Eireann school transport contract. However, the Respondent continued to offer the Appellant work as a driver and specifically offered him work on 7^thand 12^thDecember 2016 and the 9^thand 17^thJanuary 2017.

The Appellant refused work offered by the Respondent and the Respondent issued the Appellant his P45 in January 2017. The Respondent submitted that the Appellant was not dismissed but that he had been removed from the Respondent’s contract with Bus Eireann at the behest of Bus Eireann and had subsequently refused offers of work made by the Respondent.

The Respondent submitted that the contract with Bus Eireann was a contract not involving the Appellant. The contract did make provision for the Respondent to secure the agreement of the Appellant in respect of the provision allowing Bus Eireann to instruct the Respondent to remove a driver from the contract. However, the Respondent submitted that, notwithstanding the Respondent’s failure to secure the agreement of drivers, the contract remained operational in that the Respondent provided the contracted services. The Respondent accepted as a provision of the ‘business to business’ contract that Bus Eireann had a contractual entitlement to require the removal of a driver from servicing of the contract. Bus Eireann had done so in this case for the stated reason of poor driving.

The Respondent submitted that the Appellant did not have the required service at the date of the termination of his employment so as to allow him the protection of the Act unless he could establish that his dismissal arose ‘wholly or mainly’ as a result of his having made a protected disclosure within the meaning of the Protected Disclosures Act, 2014,

The Respondent submitted that the sole reason for the termination of the Appellant’s employment was the exercise of Bus Eireann’s contractual right to remove a driver from their contractor and the employer’s decision to remove him from the contract, which was not a dismissal, was wholly related to that action by Bus Eireann.

Relevant law

The appeal before the Court concerns an employee with less than twelve month’s service with the Respondent.

The Act at Section 2 in relevant part provides as follows:

• 2. (1) Except in so far as any provision of this Act otherwise provides this Act shall not apply in relation to any of the following persons:
  • (a) an employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him,

• 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.

  (2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

  (ba) the employee having made a protected disclosure,

• (2D) Sections 3 and 4 do not apply to a case falling within paragraph (ba) of subsection (2) and that paragraph applies to a person who would otherwise be excluded from this Act by any of paragraphs (a) to (c) and (e) to (k) of section 2(1).

Discussion and conclusions.

The application of the law to the factual matrix of the within appeal means that the Appellant, should his dismissal have resulted wholly or mainly from him having made a protected disclosure, has locus standi to maintain his appeal notwithstanding he was employed by the Respondent for a period of less than 12 months at the date of termination of his employment. If his dismissal did not result wholly or mainly from him having made such a disclosure then the within appeal cannot succeed.

The parties are in dispute as to whether a dismissal took place at all and the parties are in dispute as regards the date of termination of the Appellant’s employment.

In addition, the parties are in dispute as to the reason for the termination of the Appellant’s employment.

The Appellant submits that his removal from the Bus Eireann contract amounted to a dismissal within the meaning of the Act and that this dismissal resulted wholly or mainly from his having made a protected disclosure.

The Respondent does not dispute that the Appellant made a protected disclosure to the principal of a school or that he conveyed the content of that protected disclosure to the Respondent. The Respondent however submits that the Appellant’s removal from the Bus Eireann contract arose only because of the e-mailed instruction of an Inspector of Bus Eireann which was followed by a subsequent letter from Bus Eireann setting out a requirement to remove the Appellant from the contract. The Respondent submits that, on the basis of the ‘business to business’ contract, he decided that he was obliged to comply with that requirement of Bus Eireann.

The Court notes that the express requirement of the customer, Bus Eireann, to have the Appellant removed as a driver from the contract was clearly stated in an e-mail from an Inspector on 2^ndDecember 2016 and again by letter from a Regional Manager of Bus Eireann dated 11^thJanuary 2017. The reasons advanced by Bus Eireann for the requirement they placed upon the Respondent related to matters which did not amount to protected disclosures.

It is the reasoning of the employer which concerns the Court in this matter insofar as the employer is the party with obligations under the Act. It is not for this Court to speculate as regards the motivations or intentions of third parties who were not before Court, or the veracity of the allegations which underpinned the requirement placed upon the Respondent by Bus Eireann.

It may be that, as a matter of contract, the failure of the Respondent to secure agreement of the Appellant to the relevant clause of the ‘business to business’ contract impacted upon the legal capacity of Bus Eireann to exercise the clause of the contract allowing it to require the removal of the Appellant. However, the matter before the Court, is an allegation that the Respondent dismissed the Appellant for having made a protected disclosure.

The matter therefore turns, initially at least, on the Appellant’s assertion that he was removed from the Bus Eireann contract wholly or mainly as a result of having made a protected disclosure. Notwithstanding the Respondent’s assertion that the Appellant’s removal from the contract was not a dismissal within the meaning of the Act, the first decision to be made by the Court concerns the basis for the Respondent’s decision to remove the Appellant from the contract. Unless that decision can be determined to have resulted by the Appellant having made a protected disclosure the within appeal must, by operation of the law, fail by virtue of the length of service of the Appellant at the date of termination of his employment.

The Court concludes that, notwithstanding the Appellant had not given his agreement to the relevant section of the contract between the Respondent and Bus Eireann at the material time, the Respondent was satisfied that he was contractually obliged to comply with the express instruction of Bus Eireann to remove the Appellant as a driver from the contract.

Having reached that conclusion, the Court cannot find that any dismissal contended by the Appellant to have occurred by virtue of his being removed from the Bus Eireann contract, resulted wholly or mainly from the making by the Appellant of a protected disclosure. Rather, if the removal of the Appellant from the Bus Eireann contract amounted to a dismissal, it resulted wholly or mainly from the fact that the Respondent had received an instruction from Bus Eireann. It is relevant to observe that the Bus Eireann instruction was stated by Bus Eireann to be founded on a series of matters, none of which amounted to the making of a protected disclosure.

In those circumstances therefore the Court concludes, having regard to the Act at Section 2(1), that the Appellant was not dismissed wholly or mainly as a result of making a protected disclosure. Consequently, as a result of the fact that, at the date he contends he was dismissed, he had less than 12 months service with the Respondent the within appeal must fail.

Determination

The Court finds that, by operation of the Act at Section 2(1), the Appellant, at the date of termination of his employment, lacked the service with the Respondent necessary to maintain the within appeal.

The decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
CO'R______________________
4 February 2020Chairman



NOTE

Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary.