Complainant

Respondent

Anonymised Parties

A Bus Driver

A Bus Company

Representatives

Stephen Sands

Act

Complaint Reference No.

Date of Receipt

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

CA-00032270-001

16/11/2019

The complainant had been employed as a part-time coach driver; mainly working at weekends since July 11th 2016.

He was paid €160 per day and his employment was terminated on May 28th 2019.

On March 18th 2019 the complainant was involved in a road traffic accident following which he was invited to attend driver assessment as part of the respondent’s procedures.

On March 21st he was invited to attend an investigation meeting which was to take place two days later.

At that meeting there was to be a discussion about the March 18th accident and previous accidents.

The complainant could not attend the meeting and also requested copies of the accident report forms.

The respondent sent him the forms on March 28th and the meeting was scheduled for March 29th.

Late on March 28th the complainant advised that the material he had been sent was ‘fudged’ in the scanning process and illegible and the following day the forms were posted to him. He was also advised on that day that he was being suspended ‘pending investigation and until the matter was resolved’.

The posted documents were returned as they had been delivered to the wrong address and a second set was posted on April 8th, and a further invitation to a meeting at 3pm on April 10th.

Just before 1pm the complainant told the company that he could not attend the meeting arranged for later that day and also requested that any future meeting should be arranged for the weekend.

He was reminded that the respondent’s office hours were Monday to Friday by letter of April 10th and that the investigation meeting would be re-scheduled during those times.

Having heard nothing, the respondent wrote to the complainant on April 30th requesting a suitable time to meet.

On May 10th the respondent wrote again and advising that the issues of which he had been notified would be proceeding to a disciplinary hearing, which was scheduled for May 20th; notice of ten days. He was put on notice that failure to attend the meeting would be considered ‘job abandonment’ and would place him at risk of dismissal.

On May 19th the complainant said that he could not attend but he replied to the points arising from the respondent’s investigation. He did not attend the hearing the following day and on May 28th the respondent wrote to him with notice of his dismissal.

The complainant appealed, and the appeal was heard on June 12th. The complainant attended with his wife as his representative but on June 20th he was advised that his appeal had not been successful.

The respondent submits that it acted reasonably, and the complainant was given every opportunity to attend investigation and disciplinary meetings but failed to do so. This was an attempt to frustrate the process and the dismissal of the complainant was fair.

While the respondent has referred to a previous history of accidents involving the complainant he had not been the subject of any disciplinary action arising from those incidents.

The case that the complainant failed or refused to attend various meetings is completely flawed.

The first three meetings (on March 28th and two on March 29th) were re-scheduled with the respondent’s agreement (for the reasons set out above).

While that does leave two meetings the basis on which the employment was terminated was that the complainant failed to attend three meetings.

In respect of all of the others the respondent acquiesced in the complainant’s request for a deferral.

In relation to the meeting arranged for April 10th the complainant had genuine family commitments which prevented his attendance. Detail were provided of the nature of the child’s illness which prevented him attending.

The complainant was dismissed by letter of May 28th, 2019 for ‘job abandonment’.

’Job abandonment’ is defined in the company handbook as;

‘unexcused absence lasting more than three or more…consecutive scheduled workdays and may result in termination of employment in the absence of an acceptable explanation’.

He had been put on notice of this possibility in an email on May 20th.

The May 28th letter terminating the employment asserted that he had failed to attend ‘a total of four meetings’ as well as failing to respond to ‘multiple’ attempts to attend an investigation.

The complainant has offered two explanations for his failure to attend the meetings on April 10th and May 20th.

Specifically, in relation to the first, it was the necessity to care for a sick child. In relation to both, he had a preference for a meeting at weekend when childcare was easier and as that was his normal working time.

In the letter of May 28th, the respondent stated that it did ‘not accept’ the complainant’s explanation that he could not attend the May 10th meeting as he had problems related to childcare.

There is no further elaboration of the basis on which the respondent reached its conclusion, for example whether it believed the explanation was simply not true, or represented an insufficient explanation for not attending.

On the face of it, and unless the respondent had some reasonable grounds for doubting its veracity the complainant’s explanation goes some way to meet the requirements of an ‘acceptable explanation’.

Also, in respect of May 20th he made a written submission by way of response.

There is a very serious question as to whether this somewhat esoteric notion of ‘job abandonment’ has any application to these facts. There is some evidence that the complainant’s level of cooperation with the process was less than adequate but when the threat of the ‘job abandonment’ made its first appearance on May 10th the complainant could only be said to have failed to attend one meeting at that stage.

That falls short of the company’s own criteria in a number of ways.

His failure to attend the next meeting would leave him a day short of the company’s stated criterion, (of three of more consecutive days), it ignores, or dismisses his reason for failing to attend on April 10th, and, it brings attendance for disciplinary meetings within a section of the handbook for which it was clearly not intended.

The letter of May 10th enclosing the outcome of the investigation contains the following

‘As you have refused to attend an investigation on multiple occasions, I have had to make a decision based on the evidence to hand’.

The word ‘multiple’ has acquired a certain recent usage to refer simply to more than one event, but unlike in previous usage when it conveyed a sense of something that was numerous, (e.g. multiple injuries) it appears now to be used to mean something much less, where ‘several’ would suffice. And, of course an alleged failure to attend ‘multiple’ meetings conveys a sense of gravity which a failure to attend several would not, even where the number is small.

In any event, the respondent fully acquiesced in the complainant’s non attendance in most of the meetings in question due to its own failure to provide information sought by the complainant.

The investigation itself included a conclusion that ‘it is my judgement that of the 7 accidents which you were involved in, 6 were your fault through a combination of dangerous driving and judgement errors in relation to the vehicle.’

To reach such a conclusion without hearing the complainant’s version of events, however much the respondent’s patience was being tested is a very serious matter and it does not meet the criteria for a proper, to say nothing of a fair investigation.

The decision maker was a HR professional with no obvious technical competence in the assessment of motor accidents and it appears the complainant’s written response to the issues raised was not taken into account. I also note that the suspension became one without pay from May 20th as the complainant had ‘neglected to engage with the process’. There was no justification to do so.

Ultimately his dismissal was not related to these accidents. There is no reference to them in the letter of termination. In the event, the complainant was dismissed for his failure to attend the disciplinary hearing. The two items listed in the letter of May 10th as being the subject of the investigation played no part in the reasons given for his dismissal.

The respondent rightly makes the point that a person on suspension is required to fully cooperate with the respondent’s processes and his insistence on meeting only at the weekend may have appeared to be purely obstructive.

In fact, the complainant (and his wife, who is a medical doctor and who attended the hearing to represent the complainant) provided a credible account at the hearing of the particular difficulties they were having with childcare. In particular, the complainant’s father in law, who had assisted with childcare, had passed away at the end of January 2019.

The respondent’s relied on a number of occasions when the complainant had worked on weekdays; one of these in 2017, two in 2018, three consecutive days in February 2019 and two days training in January and March 2019. In respect of one of these the complainant said he only attended on foot of a threat that if he did not do so he would not be given any further work.

However, this does not provide a basis for assuming that the complainant’s reason for not attending in April or May 2019 was not as he stated and the respondent took no steps to ascertain the truth of it.

The respondent’s patience was clearly being tested at this stage but given its own acquiescence in the previous postponed meetings (and its own contribution to the need to do so) its assertion in relation to the complainant’s failure to attend on ‘multiple occasions’ is entirely without foundation.

Indeed, the process is flawed in almost every respect.

I accept that the complainant could have made more effort to co-operate, but his conduct had not reached the stage where the respondent was entitled to terminate his employment and specifically not for the reason stated related to ‘job abandonment’.

That concept was entirely inapplicable to these facts and has the appearance of desperation to find a basis to terminate the complainant’s employment one way or another.

The way it found was entirely unfair both procedurally and substantively.

The complainant had earned approximately €12,000 per annum. He has found employment but at a considerably lower rate of pay (approximately half).

I find Complaint CA-00032270-001 to be well founded and I award the complainant €6,000.00

Unfair Dismissal