Complainant

Respondent

Anonymised Parties

A Bus Driver

A Bus Service Provider

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-00030324-001

15/08/2019

The Complainant commenced employment on 11 June 2018 as a Temporary Road Passenger Driver.

It should be noted that inquiries were made as to whether the parties who were involved in the disciplinary process would be attending and I was advised they would not. Furthermore, the Respondent was given two separate breaks to clarify instructions and failed to furnish documentary evidence requested as part of the normal course of the hearing.

When asked for a copy of the investigation report together with evidence of that fair procedures had been carried out the Respondent’s advised that the file “was very large” and “was not in a position to bring it to the hearing.”

The Head of Employee Relations together with the HR Delivery Manager attended for the Respondent. A submission summarising the Respondent’s case was furnished in advance of the hearing. The Head of Employee Relations was requested to summaries the Respondent’s position and then present his evidence. The Head of Employee Relations outlined the Respondent’s position as follow:

The Complainant was employed as a temporary driver from 11 June 208 to 13 August 2019. He made a false declaration on his employment application form, dated 24 March 2018, when he answered “No” to the question “Have you ever been convicted of an offence?”.

It was submitted that the Complainant was absence for 35 days on illness leave – 23 certified and 12 self-certified which lead to the frustration of the contract as he was unable to perform his duties.

It was submitted by the Respondent that the Complainant attended an “interview/meeting” on 7 March 2019 in relation to three incidents which took place between 28 October 2018 and 7 February 2019. It was stated that the Complainant used became irate and used foul language during the “interview”. Following this interview, the Complainant was issued with a final warning in relation to his behaviour. The Complainant was asked to produce written verification from the RSA of any penalty points / endorsements on his driving licence.

On 18 March 2019 the Complainant appealed the decision and by letter dated 5 June 2019 he was advised the written warning was upheld. The Respondent subsequently extended his probation period for a further three months with effect from 12 June 2019.

The Respondent produced a written attendance of an appearance before the District Court by the Complainant on 17 July 2019.

On 22 July 2019, attend for “interview” where he was asked about 3 incidents between 6 February 2019 and 11 July 2019 and the three convictions that the Complainant failed to declare on his application form on 24 March 2018. When the Complainant produced a letter from the RSA and An Garda Síochána, the Respondent believed further consideration was required and suspended him from duty with pay.

By letter dated 25 July 2019, the Respondent advised the Complainant that he was on seven days’ notice of dismissal.

On 26 July 2019 the Complainant appealed the decision. Following a hearing on 8 August 2019 the Complainant was advised that the decision was upheld on 13 August 2019.

The Respondent relied on s. 6 of the contract of employment probation clause which states termination within the probationary period is at the discretion of the Respondent.

The Complainant’s evidence began on 19 July 2019 where he states he was orally requested to attend a meeting with the Services Manager on 22 July 2019. Following the outcome of the meeting, the Complainant appealed the final written warning. The Complainant appealed the decision. It was the Complainant’s submission that his Union Representative objected to the appeal being heard by a manager on the same level as the manager who made the decision as this was contrary to s. 7 of the Respondent’s Disciplinary Procedure.

It was the Complainant’s case that there was no outcome to the appeal. It was submitted that the matters which were the original reason for the meeting on 22 July 2019 have never been dealt with. Instead a letter was received advising that his probation had been extended by a further three months.

Following the Complainant’s appearance before the District Court, he attended the offices of the Respondent together with his Union Representative. The meeting was described as an informal meeting where previous disciplinary matters were discussed. It was confirmed that no documentation was presented in advance of the meeting.

A letter dated 23 July 2019 was received requesting that the Complainant attend a second “discussion” on 26 July 2019 and advising that he was being placed on “paid leave” and advising that he would be updated “accordingly regarding this arrangement.”

A second letter dated 25 July 2019 was received by the Complainant giving him notice of dismissal. The letter referred to the final written warning issued for three incidents between October 2018 and February 2019 and unacceptable behaviour and language at the hearing. The letter referred to the allegation that he had failed to declare previous convictions on his application form and referred to “the full report received this morning”. No report was attached to the letter. It is noted that the letter was hand delivered to the Complainant’s address following a phone call from the Respondent enquiring whether he was at home.

By detailed letter, dated 30 July 2019, the Complainant appealed the dismissal. It was the evidence of the Union Representative that the Respondent refused to agree to take minutes of the hearing stating it was a matter for the Complainant if he wanted minutes taken. A second Union Representative took minutes on behalf of the Complainant. The Union Representative also gave evidence that he requested a copy of the letter which set out the charges his member was being accused of and the court report the Respondent relied upon. This was refused by the Head of Culture and Employee Relations and Appeal Chair who also refused to adjourn the hearing to allow for the production of these documents. It was stated that the appeal was to continue but under objection as the correct procedure was not being followed. It is noted in cross examination at the hearing before the Workplace Relations Commission this request was repeated and refused by the Respondent. It was submitted that this was contrary to the Disciplinary Procedure which stated that all evidence “shall” be provided to the Employee before the hearing.

By letter dated 13 August 2019, the Complainant advised that the decision to dismiss was upheld.

It was submitted by the Complainant that there was a Circuit Court appeal which resulted in dismissal of all disqualification and a reduction of a fine. It was also submitted that the Circuit Court Judge noted that newspaper reporter and newspaper owed the Complainant an apology.

Evidence was produced of a letter, dated 12 April 2017, from An Garda Síochána, stating that the correct procedures were not followed in respect of the court conviction imposed on him and advising that the appeal is to be convicted.

A signed consent form by the Complainant was presented of the Complainant’s consenting to the appeal of the fixed charge offences dated 27 June 2017.

It was the Complainant’s case that fair procedures were not followed either as per the Company Disciplinary Procedures or the principles of fair procedures as set out in the Supreme Court decision in Re Haughey [1971] I.R. 217. It was submitted that the dismissal letter heavily focused on the matters the Complainant’s believed were never fully dealt with and the final writing warning. The reason for dismissal is unclear in the letter and remains unclear.

The internal procedures were not followed as a higher manager did not hear the appeals. The sanction of extending probation of 3 months from 12 June 2019, despite the Complainant having one year’s service on 11 June 2019.

The reference to the Complainant’s attendance was never raised either formally or informally by the Respondent nor was he disciplined for it, yet the Respondent relied on it in his dismissal.

Section 6(1) of the Unfair Dismissals Acts 1977-2015 provides that: -

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.

Section 6(4) of the 1977 -2015 Acts provides: -

(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) not relevant

(b) the conduct of the employee

(c) not relevant

(d) not relevant

(6) In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal.

Section 6(7) of the 1977 -2015 Acts provides: -

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…

The Supreme Court in RE Haughey [1971] I.R. 217 summarised the right to fair procedures enshrined in Art 40 of the Constitution as follows:

“(a) that he should be furnished with a copy of the evidence which reflected on his good name;

(b) that he should be allowed to cross-examine, by counsel, his accuser or accusers;

(c)that he should be allowed to give rebutting evidence; and

(d) that he should be permitted to address, again by counsel, the Committee in his own defence.”

The High Court inBank of Ireland –v- O’Reilly, [2015] 26 E.L.R. 229discussed the law on suspension of an employee from their work and held:-

“It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer's own business and reputation where the conduct in issue is known by those doing business with the employer. In general, however, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.”

Having carefully considered both the oral and written submissions and evidence of the parties, I find as follows:

The dismissal of the Complainant was not in dispute and therefore, the onus of proof that the dismissal was fair rests with the Respondent.

In relation to the disciplinary procedures followed by the Respondent I find as follows:

·         The Respondent failed to follow its own internal procedures set out in the Handbook presented at the hearing. It is not accepted that the Respondent was not bound by these procedures where it was argued that the Complainant was on probation.

·         It is not accepted that the Complainant was on probation on the date of dismissal. Section 6 of the Contract of Employment dated 25 September 2018 states that probation “will not, in any case, exceed 12 months.”. It is further noted that this contract was the Complainant’s contract of employment with the Respondent with the first contracted dated from 11 June 2018 to 28 September 2018. It is found that the Complainant does have the required 12 months continuous services required to pursue a claim under the Unfair Dismissals Act 1977-2015.

·         The Complainant was suspended with pay by letter dated 23 July 2019 and advised he would be updated at the next meeting on 26 July 2019. However, the meeting of 26 July 2019 was cancelled by the Respondent and instead a letter of dismissal was hand delivered to the Complainant’s house by the Respondent when it knew that he was not at home.

·         The Respondent, despite its extensive resources, failed to apply the principles of natural justice in the investigation, sanctioning and ultimately dismissal of the Complainant. In particular:

o   The Complainant was not notified in writing that his job was at risk of dismissal; the meetings were referred to as “interviews” or “discussions” and; conducted informally with no notes, albeit with the presence of his Union Representative.

o   The Complainant was not furnished with any of the evidence relied upon either prior to meetings or in the instance of the unofficial court report, it was not made available to the Complainant until requested my me at the hearing. It is noted that despite the Respondent’s reliance on the allegation that the Complainant had driving related offences at the time of completing the application form, there are no dates noted on the unofficial case report nor was any evidence furnished by the Respondent to support this claim. The Complainant’s evidence was noted.

o   No investigation report was ever furnished to the Complainant by the Respondent.

o   The Complainant was not afforded an opportunity to rebut the evidence used against him.

o   The Complainant was not afforded the opportunity to fully and fairly defend himself.

o   The Complainant was not afforded the right to independent adjudication of the investigation, outcome and appeal of disciplinary procedures. The same person held the role of investigator and decision maker.

In the circumstances, I find that the Complainant’s dismissal was both substantively and procedurally unfair within the meaning of Section 6 of the Acts.

Accordingly, I find that the Complainant’s claim under the Unfair Dismissals Acts 1977-2015 is well founded.

The Complainant seeks reinstatement.

It is the Respondent’s view that employment relationship has been fractured and it would have a “strong difficulty in allowing him drive”. However, where there is no evidence presented that the Complainant has a conviction for driving related offence(s), I cannot accept the Respondent’s submission. I accept the Complainant’s evidence.

The Unfair Dismissals Act, 1977 as amended describes reinstatement as follows at section 7(a):

7.— (1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following, the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal…”

Having considered all the circumstances and evidence in this case I believe that the appropriate remedy in this case is reinstatement to the position he held on 13 August 2019.

Reinstatement means that Complainant should return to his original position with the Respondent and be treated in all respects as if he had not been dismissed.

Unfair Dismissal- Flawed Procedure - Reinstatement – Well Founded