Complainant

Respondent

Anonymised Parties

A bus driver

A passenger transport company.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00028866-001

06/06/2019

The Complainant was employed by the Respondent as a bus driver from 1st September 2001 until 31st May 2019.

This complaint submitted under the Unfair Dismissals Act, 1977 was received by the Workplace Relations Commission on 6th June 2019.

The Complainant was employed as a bus driver by the Respondent from 7th April 2001 until the date of his dismissal on 22nd April 2019.

Background

The Complainant reported “defects” in respect of ten buses assigned to him, over two days, 21st January 2019 and 23rd January 2019. All ten buses were subsequently examined and deemed fit to drive by mechanics.

A preliminary investigation was carried out by the Administrator, Ms AD on 7th February 2019 which included an interview with the Complainant, accompanied by his Trade Union Representative following which a written report was submitted to the Area Manager.

Subsequently a disciplinary hearing was carried out by the Area Manager on 20th February 2019. He found that the Complainant’s actions constituted gross misconduct, and he imposed a penalty of seven days’ notice of dismissal.

An Appeal was subsequently lodged with the internal appeals board which is chaired by an agreed Independent Chairman in accordance with the agreed disciplinary procedures. The appeal board convened to hear the appeal on 5th April 2019. The Complainant attended accompanied by his trade union representative. The Complainant was advised by letter dated 9th April 2019 that his appeal was disallowed.

Subsequently the Complainant lodged a mercy appeal to the Head of Human Resources. A mercy appeal hearing took place on 18th April 2019. The Complainant attended and was accompanied by his trade union representative. The Complainant was advised by letter on 24th April 2019 that his mercy appeal was disallowed.

21st January 2019

The Complainant commenced his duty at 15.48 pm. He took over a bus from another driver who had driven the bus in service. The bus had a full load of passengers. The Complainant called Central Control to say that the bus was defective because he claimed the driver’s seat cushion had collapsed.

Central Control contacted the Maintenance Department who brought him a replacement bus at 16.15 pm.   However, the Complainant contacted Central Control after a short period to advise that this bus was also defective for the same reason.

An Inspector, after having been contacted by Central Control brought a replacement bus to Parnell Square West.   The Complainant reported this bus as being defective for the same reason.

The Complainant was brought back to the Bus Depot as a passenger in the same bus driven by the Inspector. Back in the garage, Depot Inspector MA allocated the Complainant bus GT57.   The Complainant tested the bus by driving it but came back to the Bus Depot to say that the seat cushion had collapsed. He was advised to fill out a Defect Docket.

The Complainant was then assigned a further replacement bus AV424. The Complainant also tested this bus and returned to say that it had a defective seat, and he was advised to complete a Defect Docket.

The Complainant was assigned another replacement bus GT52. The Complainant tested this bus, and returned the bus to report a “collapsed cushion” and completed a Defect Docket.

The Lead Mechanic in the Bus Depot assigned another replacement bus. Once again, after testing this bus, the Complainant returned to the depot stating that the seat cushion had collapsed, and he was advised to complete a Defect Docket. After this, the Complainant went on his break and was instructed by the Depot Inspector to stay on the premises for the remainder of his shift.

23rd January 2019

The Complainant started on Duty Number 37/16 at 15.43pm. He took over a bus in service on Parnell Square West from the previous driver duty who had driven the bus in service. The Complainant contacted Central Control to report that the bus in question was defective because of the driver’s seat. He reported to Central Control that he had “defected” the same bus that Monday 21st January for the same reason. Central Control contacted the Bus Depot who reported back that they had changed the seat on bus AX549. Central Control reported this back to the Complainant but he told Central Control that he would not be driving the bus. Chief Inspector TB approached the Complainant who explained to him that he had disc problems in his back but that he hadn’t told the Chief Medical Officer. He told the Inspector that he attends a Chiropractor. A SIPTU Representative arrived at the scene and following some discussion the SIPTU representative drove the bus back to the Bus Depot with the Complainant travelling as a passenger.

When the Complainant got back to the Bus Depot he was allocated a replacement bus AX635. The Complainant tested the bus but returned it to the Depot to report that the bus was defective because of the seat.

The Complainant was then allocated bus VG48. The Complainant tested this bus as well, but returned the bus stating that the seat cushion was collapsed and that a panel was loose. He was advised to fill in a Defect Docket.

Inspector DD called the Complainant into the Inspector’s Office to advise him that he would not be allocated any more buses. The Inspector advised the Complainant that he was not suspended but that he was to report to the manager the following day.

Conclusion

It is not disputed that there had been complaints in relation to the driver’s seat cushions, but these had largely been resolved, and what transpired on 21st and 23rd January 2019 were not genuine complaints about defects on buses but instead a deliberate disruption of the Respondent’s service by the Complainant. None of the driver’s seats deemed defective by the Claimant were in fact defective.   The Respondent respectfully submits that there are no arguable grounds for the relief sought by the Claimant under Section 8 of the Unfair Dismissals Act, 1977.

The Complainant was dismissed from his position of bus driver with the Respondent on 22/04/2019. The Complainant is appealing his dismissal. He has appealed his dismissal internally, twice, exhausting the internal process. The Complainant has a back-disc issue, which could be compounded if the bus driver seat is not correctly fitted. The Complainant in a bid to ensure his workstation was conducive to his personal needs reported defects. Thus, protecting the company under health and safety and his colleagues.

The Complainant reported all defects with buses and specifically the seats as is his duty, in compliance with the “Vehicle Pre-Service Check”. The respondent had seen the reporting of such defects as unwarranted and vexatious. All drivers have a duty of care to themselves and their colleagues to report such defects. However, after detecting the same problem repeatedly over two shifts with several buses, and duty bound to report same, the Complainant was subjected to the disciplinary process and dismissed. The Complainant was dismissed from a position he held for over 18 years.   The respondent did not act in a reasonable manner, the sanction of dismissal was disproportionate, when all of the circumstances are reviewed. The Complainant is seeking reinstatement to his position.  

Background to Case

The Complainant was unfairly dismissed on 22/04/2019. He had 18 years’ plus service and was acting for the good of all concerned, in reporting defects as detected by him. The work of a driver involves prolonged periods of sitting. Without proper support, the drivers can experience adverse effects on their person. Therefor it is essential that the bus is in good working order, prior to starting work. The Complainant an experienced driver, with over 18 years behind him with the Respondent, did his duty and followed company policy. The records will show he was a vigilant driver and took health and safety as important for him, his colleagues and most importantly the public. Other staff members have reported problems with the bus seats. This is an ongoing issue, which the drivers have highlighted as going on far too long. The Complainant had a duty of care to report defects and did so. His experience as a Union representative compelled him to speak up on behalf of his co-workers and himself.

The Complainant is accused of disrupting the respondent’s services deliberately. The fact is a number of drivers have reported issues with seats and other defects with the buses. The Complainant asked for engineering reports to support this claim and this was not complied with. The Complainant had a similar issue before Christmas 2018 which resulted in his dismissal. The Complainant appealed, and this was reduced to a F.W.W.

In January 2019, the Complainant returned to work and each of the buses assigned to him had the same problem, defective seat. On inspection of the bus assigned to him he contacted control and reported the defect. The buses assigned to him, a driver report on defects EV46, will show this bus was reported previously for a faulty seat and the seat had to be replaced. The Complainant sought report history on all of the buses he defected. This was declined during the internal process. This deprived the Complainant of making an informed defence. None of the buses issued to him were issued by maintenance, as there was only one member on, and he was out on call. On 21/01/2019 some of the buses had already been previously defected by others. On 23/01/19, the Complainant on return to the garage AX635 was defected. The Complainant alleges he asked the manager to come out to the bus, so he could see the seat and he refused to go.

The Complainant highlighted faults as he seen them. Given he and his colleagues have continued to report faulty seats on the same busses, it became apparent the reports were not being taken seriously. The Complainant has a duty of care to himself and could not put himself or his passengers in harm’s way. The Complainant and his representative also asked during the process for photographic evidence to be reviewed.

The Complainant was prejudged because he had a history of reporting defective buses. The same members of management were involved in the second investigation against him, which is not in keeping with fair procedures, as set out in the Frizelle case. The Complainant reported to Ms AD, that on a previous interview she had recorded things said by the Union rep as said by him. The Complainant and steward were assured by Ms AD that they would get a copy of her report prior to it being submitted this didn’t happen. The Complainant also reported this at the next stage to Mr PL. The Complainant had asked for photos taken by lead mechanic during the process to be made available. These were not produced until the appeal stage.

Fair procedures, in case Law such as Frizzell and S.I. 146 of 2000 the individual is entitled to make his or her case before a decision is reached. The Complainant believes his case was seriously impeded as information and evidence requested by him was ignored. In Frizzell the deciding authority should make a decision on factual evidence as reported by Justice Flood:

                 “decision of the deciding authority should be based on the balance of probabilities flowing

                 From the factual evidence and in light of the explanation offered. The actual decision, as

                 To whether a dismissal should follow, should be a decision proportionate to the gravity of

                   the complaint, and of the gravity and effect of dismissal om the employee. Put very simply

                   Principles of natural justice must be unequivocally applied”.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the effect of the dismissal on the employee. The complaints made were genuine. The gravity it was viewed by the respondent as gross misconduct and dismissal followed. The Complainant followed procedure in reporting defects, which cost the Complainant his job. If he had taken out the buses with a faulty seat and an incident occurred, he would have been held responsible. The Complainant was not given any opportunity to provide the supporting evidence that defective seats were reported by other drivers as this information was not given to him when requested. The issue with seats is an ongoing one and the company are in the process of replacing seats currently.

The Complainant was not refusing to do his duty on the 21/01/2019 or 23/01/2019 it was his duty to report faults. The response he got was to ignore his concerns and leave him sitting in the canteen and finally to suspend him from duty. The outcome to his reporting of faults was the ultimate sanction of dismissal.

Conclusion

The Complainant was unfairly dismissed. The company gave no consideration to the history of reporting of faulty seats and other faults by other drivers. The dismissal was disproportionate

The Complainant ‘defected’ a number of buses over a two-day period. These were, in some cases, buses he had taken over from colleagues who had driven them without complaint.

The Respondent is conscious that bus seats have been a problem in the past and have spent a large amount of time and money on getting them right, this includes colleagues of the Complainant having input into the type of seats required.

As the Complainant ‘defected’ buses they were inspected by engineers and mechanics who could find nothing wrong with them. At hearing the Respondent produced inspection reports for nine buses, these reports included the pre -start inspections carried out by drivers, all nine were passed for service.

One of the buses ‘defected’ on 23th January 2019 had been fitted with a new seat two days previously. When asked by an Inspector to point out the defect on the seat the Complainant pointed to a crease on the left side of the seat cloth. When the Inspector sat on the drivers seat he told the complainant that he found the seat comfortable and that he would be happy to drive the bus.

I note that the Complainant has admitted to having a disc problem with his back, this possibly did not help matters.

The Representative for the Complainant cited the case of Frizelle v New Ross Credit Union Ltd [1997] IEHC 137, two points are raised:

1.       The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in light of the explanation offered.

2.       The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

In this instant case I believe that on the balance of probabilities that the seats in question were not defective and the outcome, bearing in mind that the Complainant had been dismissed and successfully appealed the dismissal only a short time prior to these incidents, was proportionate on this occasion.

In the case of Abdullah v Tesco Ireland plc UD1034 / 2014 citing Noritake (Irl) Ltd v Kenna UD 88/1983 the EAT held:

‘What is required of the reasonable employer is to show that he/she had a genuine belief based on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged misconduct and that the sanction of dismissal was not disproportionate’

I have considered the facts of this case in some detail and must decide that the complaint as presented under the Unfair Dismissal Act, 1977 is not well-founded.

As outlined above – the complaint is not well – founded and therefore fails.

Unfair Dismissals Act, 1977.