UDD2152

1.An appeal of an Adjudication Officer Decision No. ADJ-00023589.

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 24 April 2020 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 20 July 2021. The following is the Determination of the Court:


DETERMINATION:

This is an appeal by Bus Eireann (hereafter the Respondent) of decision ADJ-000235891 of an Adjudication Officer in respect of a complaint of unfair dismissal by Kenneth Folman (hereafter the Complainant). The Adjudication Officer found that the complaint was well founded and ordered re-instatement.

Background

The Complainant was employed on a full-time basis from the 11^thJune 2018 until the 13^thAugust 2019 when his contract of employment was terminated. At the commencement of the hearing the Respondent informed the Court that they were not contesting the fact that the dismissal was procedurally unfair. On that basis the issues that remained to be considered by the Court were the appropriate form of redress if any and the contribution if any of the Complainant to his dismissal.

Summary of the Respondent’s submission

The Respondent submitted that the Complainant contributed one hundred percent to his own dismissal. There had been a number of issues with his performance as a Driver since he commenced work which had cumulated in his receiving a final written warning on the 5^thJune 2019. Further issues in respect of the Complainant’s suitability for the position he held came to the Respondent’s attention in July 2019. The Complainant was involved in a Court case where he was disqualified from driving which meant he was unable to carry out the job he had been employed to do. It is the Respondent’s submission that at that stage it felt it had no option but to dismiss the Complainant.

In respect of remedy the Respondent submitted that the trust between the Complainant and the Respondent has been irreparably damaged and therefore re-instatement and re-engagement are not appropriate in this case. The Respondent submitted that the Complainant has substantially contributed to his own dismissal and any compensation that the Court might consider appropriate should take account of that fact. The Respondent noted that the Complainant had obtained alternative employment within a short period of time.

Summary of the Complainant’s case

It is the Complainant’s submission that while he did get a final written warning the incidents that led to that were not as serious as the Respondent is making them out to be. At the time they were deemed worthy of a final written warning so to rely on them to then dismiss him was unfair procedure. The Complainant successfully appealed the disqualification, and the disqualification was lifted. The Respondent was aware at the time that the Complainant intended to appeal the disqualification decision.

It is the Complainant’s submission that all new drivers have incidents when they are driving and that they build up experience through driving. It is the Complainant’s submission, that he did not contribute in any way to his own dismissal. The Union of behalf of the Complainant submitted that he went from a final written warning to dismissal without being given a fair hearing or allowed to appeal the decision through the normal procedures. In terms of the appropriate form of redress the Complainants representative submitted that re-instatement was the appropriate redress. It was his submission that if there was a break down in trust it was between the Complainant and the Respondent and not the other way around. The Complainant is the person who was let down by not been given a fair hearing before he was dismissed but he is prepared to put that behind him. The Complainant does not believe that re-engagement or compensation are appropriate in this case. In terms of mitigation of loss, the Complainant was unemployed from the date of dismissal 13^thAugust 2019 to the 18^thNovember when he took up employment which lasted up until the 9^thOctober 2020. In that employment he was earning approximately €79 euro a week less than what he was earning with the Respondent. On the 15^thOctober 2020 he moved to a new employment where he is still employed. The hourly rate in his current employment is equal to what he earned with the Respondent, but he is currently only working 25 hours a week.

Discussion

The fact of the dismissal being procedurally unfair is not in dispute. In respect of the three forms of redress the Court having listened to the submissions and considered the nature of the incidents that led to the final warning does not believe that re-instatement or re-engagement are appropriate in this case. Re-instatement is generally granted where the employee is found not to have contributed to the dismissal. In this case there were ongoing issues with the manner in which the Complainant was conducting himself wile carrying out his job. It is the Respondent’s submission that these issues were raised with the Complainant, and that he failed to address them satisfactorily. In those circumstances the Court accepts that from the Respondent’s position there are trust issues that would make his return to the workplace unworkable and therefore neither re-instatement or re-engagement are appropriate remedies. The Court considers compensation to be the appropriate form of redress and taking into account the loss being claimed and all other relevant factors determines that the appropriate compensation is €5,000

Determination

The Court determines that the Complainant was unfairly dismissed, and that the Respondent should pay the Complainant compensation of €5,000

The Respondent’s appeal fails.

The decision of the Adjudication Officer is varied accordingly.

The Court so Determines.

	Signed on behalf of the Labour Court
	Louise O'Donnell
SOC	______________________
17 August 2021	Deputy Chairman