The Worker

The Employer

Anonymised Parties

A Bus Driver

A Bus Company

Representatives

Marie O'Connor SIPTU

 A HR Manager

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00031149-001

26/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00031150-001

26/09/2019

The Worker (hereinafter referred to as the Employee) was appealing a warning and a one-day suspension issued to her in May  28th 2018.  (referred to as Incident 1) CA-00031149-001.

The Worker was appealing a Final Written warning and recorded suspension of one week (reduced to one day on appeal) issued to her on March 11th 2019 (referred to as Incident 2) CA-00031150-001.

Incident 1; CA-00031149-001.

The Employee commenced employment with the Respondent in April, 2001 as a Bus Driver for road passengers until 2007 and was based in Limerick and later took up a position outside of Limerick.

While covering a local route, the Employee was out on sick leave from the 10th March, 2018 to the 2nd May, 2018.

The Employee was seen by the CMO on the 23 rd  April, 2018 and was certified fit to return to work on 27th April, 2018. However,  the CMO had a discussion with the Employee and asked her when she would be going back to work. The Employee stated that she was due to attend her GP on the 26th April, 2018 for the results of tests before her doctor made any further decision on her return to work date. The CMO did not in fact advise the Employee that she was certified fit to return to work on the 27th April, 2018. The Employee was given a carbon copy of the Certificate and did not notice that it indicated "fit to return". The Certificate was in fact a carbon copy which was not very legible. The Employee attended her GP on 25th April, 2018 who gave her a final medical certificate stating she was fit to return to work on the 2nd May, 2018. The Employee posted the Medical Certificate to the School Transport Office in Roxboro Road, Limerick on the 25th April, 2018.

The school bus was dropped off at the Employees home on the 26th April, 2018. The Employee did not think this was unusual as while she was on sick leave buses were exchanged/dropped off at her home.

On the 27th April, 2018 at 10.08 a.m. the School Transport Office in Roxboro Road emailed staff in HR, Payroll, a Staff Officer, and the Regional Manager attaching a copy of The Employee's medical certificate of the 25th April, 2018.

On the 27th April, 2018 at 14.42 p.m. a Staff Officer emailed the Employee asking her to contact the School Transport Office or Service Supervisor immediately.

On the 27th April, 2018 at 15.05 p.m. the Employee emailed back stating she had received an emailed from NM  to contact him and advised that she had posted her medical certificate to the office and that it should have been received today. The Employee gave her return to work date the 2nd May, 2018. At 15.07 p.m TG  replied to the Employee that "at your house, need to get bus now garage are here". At 15.21 p.m. the Employee replied "I am not at home, at physio, will be two hours at least, they only brought it yesterday". Therefore, the bus was not collected. The Employee was not aware at this stage that the Respondent expected her back to work on the 27ff April, 2018.

On 30th April, 2018 at 8.26 a.m. the Employee (who was still on sick leave) received an email from the Garage Foreman stating "SC19 is now due for dock and needs to come into the garage, is it possible to retrieve the bus this morning? We tried last Friday but were unable due to a car that was parked in front of the bus. Would appreciate if you'd let me know ASAP." The Employee replied at 8.34 a.m. stating "yes, there is normally 6 vehicles parked her in eve hence the parking, I will make sure they will be moved, you had only dropped the bus the evening before so it looked like it was here to stay this time.".

On the 2nd May, 2018 at 7.14 a.m. the Employee texted TG advising him that there was no bus there for her to do the run.

The Employee returned to work on the 2nd May, 2018. However, there was no bus there, and she thought one would be delivered during the day. The Employee text TG  at I1.34 a.m. to say "T would you let N know that I will do that. Thank you" and re-sent the same message at 12.31 and heard nothing from TG that day.

The Employee then received an email from NM  at 10.53 a.m. NM emailed the Employee asking her "to provide a Report on the situation which developed last Friday morning the 27th April, 2018 in relation to the failure of route E76 and E671 to which you are assigned to operate. In this Report please outline why you did not inform this office or Service Supervisor.. of your situation before it occurred. Please note you cannot resume duty until this Report received". The Employee replied at 16.24 p.m. that she had text TG twice that morning and had not heard back and that she was certified fit to return on 2nd May, 2018 and that she posted Certificate when she got out of doctors, but it was after 5.00 pm. Last Wednesday, a hard copy as requested. The Employee also advised that bus was taken for dock on Monday 30th April and that she did not know what else she was to report.

This was the first indication to the Employee had that the Employer expected her to return to work on the 27th April, 2018.

On the 14th May, 2018 an investigation meeting was held in relation to service failure E76/E671.

On 28th May, 2018 The Employee was issued with a warning plus one day suspension for failure to report for duty on the 27th April, 2018.

On the 29th May, 2018 the decision was appealed by the Employee.

On the 2nd May, 2019 almost one year later the penalty was reduced to a warning and a recorded day of suspension. This took just short of one year to be dealt with by the Respondent, which is unacceptable, and in breach of the Respondents' own procedures.

The Employee was not happy with the outcome of the Appeal and the matter was referred to the Workplace Relations Commission.

The Employee was out on sick leave and was not due to return to work until the 2nd May, 2018. There was some confusion in relation to the Medical Certificate furnished by the CMO. In any case the Employee was not certified fit to return to work by her GP until the 2nd May, 2018. She received this Certificate on the 25th April, 2018 and posted it the same evening to the Respondent.

The Employer were of the view that the Employee was due to return to work on the 27th April, 2018. We contend that the Respondent should have been aware that they were not in receipt of a Final Certificate from the Employee's GP to allow her to return to work.

A bus was delivered to the Employee's home on the 26th April, 2018. However, this would not be out of the ordinary, and the Employee assumed someone else was covering the route.

Furthermore, on the 27th April, 2018 when the Employee was contacted in relation to the collection of the bus, she was completely unaware that the Employer was of the view that she due to return to work that day.

The Employee presented for work on her return to work date the 2nd May, 2018. However, no bus was available on that morning, and the Employee was of the view that the Employer got someone to cover the route that morning as well, and that a bus would be delivered for the run in the afternoon.

In the circumstances it is totally unreasonable that the Employee was disciplined in respect of the issue, which effectively arose from a misunderstanding. It is not the case that she did not present for work, she did, but no bus was there for her.

We also wish to raise the issue of the inordinate delay in dealing with the Appeal in respect of this matter. It took almost one year to bring the matter to a conclusion. This has caused The Employee considerable upset.

Based on the above facts of the case we request that you:-

declare that the cases are well founded,

declare that the "Warning and a recorded suspension of one day" issued on the 2nd May, 2019 be expunged from the Employee's record.

Award compensation as the Adjudicator may deem fit in respect of the time delay in dealing with the matter.

Incident 2; - CA-00031150-001

On Friday the 15th February, 2019 the day of the spring break the Employee arrived as usual at the Secondary School at 15.30 p.m. The Employee drove past the school and parked at the GAA pitch as usual.

In 2016 the normal finishing time, which was 15.50 p.m. on a Thursday and Friday was changed to 14.45 p.m. At the time the Employee said to the Inspector that she did not know how this was going to work with the change in time. The Employee received a lot of complaints from parents even though the change had nothing to do with her as the parents felt the students should not have to wait an hour for the bus.

In September, 2017 the Inspector accompanied the Employee on the route. She informed him that the time was very tight and the Inspector agreed and put in for extra time for the Employee. However, this was not sanctioned. The Employee continued on even though she was not paid for the extra time.

In September, 2018 the Inspector accompanied the Employee on the route. The Employee mentioned to him that on a Thursday and Friday at 15.40 p.m. she was not sure if all of the students were out. The Inspector enquired what time the students finished and the Employee advised him that they finished at 14.45 p.m. The Inspector stated that if the students cannot be out here for 15.40 p.m. then to just leave at 15.40 p.m.

On the 15th February, 2019 when the Employee arrived at the school there was only one student waiting. The student said the others were all gone home as they were going to the disco that night. The Employee stated that was fine, but she had to wait until 15.40 p.m. As it was the day of the spring break the Employee was not surprised that the students would be gone home. In fact the Employee had a niece and nephew on this route so why would she leave them behind.

Therefore, at 15.40 p.m. the Employee left and turned and drove past the school again to see if there was anybody else out. There was not. However, the Employee has since learned that the students were waiting in a different room on this particular day. They were in fact in a room unsupervised where they could not see the Employee passing down or up. The students could see the bus from the room they room they usually occupied at this time.

The Employee went on her route and dropped the one student home. She parked up the bus and switched on her phone. The Employer Code of Conduct for School Transport Drivers issued in June 2018 states that Drivers Must Not "use a mobile phone or text when driving". When she switched on her phone she received a call from NM who asked the Employee if she had done her school run. The Employee advised that she did. NM advised her that she had left 40 kids behind at the secondary school. The Employee states that there are never 40 students on a Friday. Usually there might be around 15 as students often go to one another's houses especially when the disco is on that night.

The Employee felt that NM doubted if she had been there at all until the Employee told her that there was one student waiting for the bus at the bus stop and that she left at 15.40 p.m. and dropped him to his stop.

NM stated that she thought that the Employee had been in an accident and that is why she had not turned up at the school.

On the I I th March 2019 the Employer wrote to the Employee in relation to the Disciplinary Hearing. It is noteworthy that other issues were brought into this matter by the School Principal, which were outside this actual investigation. It seems that the Principal wanted rid of the Employee to put a private operator in place. We understand that a private operator now operates the route and this operator has a 2013 bus as opposed to the 2001 bus the Employee operated. The Employee's bus broke down on a regular basis and this caused issues with the parents and the Principal, which was totally outside the Employee's control.

On the 1 1 th March, 2019 the Employee was charged with Poor Work Performance/Negligence and was issued with a "written Final Warning and one week recorded suspension".

On the 23 rd May, 2019 at an Appeal Hearing this penalty was reduced to "a severe warning and one week recorded suspension".

The Employee was not happy with this outcome and the matter was referred to the Workplace Relations Commission.

The Employee attended on the 15th February, 2019 to pick up the students as normal. One student was waiting at the stop. This student advised the others had gone home. Given the fact that there was a disco that night it would not be unusual that a lot of students go to one another's houses to get ready for the disco. In any case as it was the Friday of spring break and given the fact the students finished at 14.45 p.m. it is often the case that their parents pick them up at 14.45 p.m.

The Employee cannot be held responsible for the fact that the students were in a different room on the day in question where they could not see the school bus. It seems it was the case that they were not supervised by a teacher, and, therefore, lost track of the time and that is why they did not come out for the bus.

As indicated the Employee has a niece and nephew on the route. Therefore, why would she leave if she thought the students were still inside.

It is noteworthy that there were no complaints from the actual parents in relation to this incident.

In the circumstances, we request that the Employee's "severe warning and one week recorded suspension" be expunged from her record. Based on the above facts of the case the Employee requested that the Adjudicator:

declare that the case is well founded,

declare that the "Severe Warning and one week recorded suspension" issued on the 23 rd May, 2019 be expunged from the Employee's record.

Award compensation as the Adjudicator may deem fit in respect of the time delay in dealing with the matter.

The issue before the Workplace Relations Commission concerns a claim by current a Driver in relation to the Disciplinary process applied in 2018/2019.

The Employee commenced employment in 2001, as a Road Passenger Driver before she resigned in March 2007.  Later in 2007, the Employee re-joined the Employer as a School Bus Driver, operating school transport services to primary and post primary school.  

On Friday April 27th 2018, The Employee failed to report for duty, therefore leaving many young children without a service.  The Employee did not make any prior contact with the Service Supervisor, an agreed practice and therefore no alternative transport was arranged.

A Disciplinary Hearing took place on May 23rd 2018 whereby the Employee was charged with failure to report for duty (on Friday April 27th). Following this disciplinary he Employee was issued with ‘a warning plus one day suspension’.  As per agreed disciplinary procedures this decision can be appealed within seven days. SIPTU, on behalf of The Employee appealed the decision through the Independent Appeals Board and the decision was to reduce the penalty to ‘a warning and a recorded suspension of one day’.

The Appeals Board comprises Company representative, Trade Union representative and was chaired by Independent Chair.

On 18th February 2019 the Employer received a formal complaint from a School Principal.   A number of concerns were raised in this email, one of the main concerns regarded an incident whereby a number of pupils were left behind at the school on February 15th, 2019.  The Chief Clerk in the School Transport Office (Limerick) invited the Employee to a meeting to discuss the complaint.  The Employee disputed some of the dates/times provided yet the matter was progressed to a Disciplinary hearing on March 04th 2019 where the Employee was charged with ‘poor work performance/negligence.

The Employee was issued with a ‘final warning and one week recorded suspension’.  Once again, SIPTU on behalf of the Employee appealed the decision through the Independent Appeals Board where the decision was reduced to ‘a severe warning and one week recorded suspension’.

The Employer staff have a duty and responsibility to safeguard children and support their general welfare, development and safety, promoting the protection of children in line with our Child Safeguarding Policy. All drivers, including The Employee have a copy of this Policy.

The Employer staff have a duty of care to ensure that all pupils are transported safely to and from school each day, and to leave a number of pupils behind is totally irresponsible and unacceptable.

The Employer also has an agreed disciplinary procedure, and this is contained in the ‘Procedures’ book, a copy of which is supplied to all staff.

The cases pertaining to the Employee were all dealt with fairly, transparently and consistent with the agreed disciplinary procedures up to including the independent Appeals Board. 

The Employer respectfully requests the WRC not to find in favour of the claimant and uphold the Decision(s) of the Independent Appeals Board.

Complaint No CA-00031149-001 was received by the WRC on September 26th 2019 and stated the complaint as “I was issued with a severe warning in May 2019. I am unhappy about this given circumstances of this case”. The date of the disciplinary action was May 28th 2018

Complaint No CA-00031150-001 was received by the WRC on September 26th  2019 and stated the complaint as “I was issued with a Warning and a recorded suspension of one day on the 2nd May 2019. I am unhappy about the given circumstances of the case”. The date of the disciplinary action was March 3rd 2019.

An initial Hearing was held by Remote Video on February 4th 2021 and as there was some link disturbance at this Hearing (even though the substance of the issues were heard) and at the insistence of the Employees Shop Steward a second face to face Hearing was held on November 23rd 2021. Nothing of substance was advanced at the second Hearing that was not heard at the first Hearing.

The warning and suspension expired no later than March 11th 2020. At the Hearings the Employer confirmed that the warning had expired after 12 months in accordance with the Disciplinary procedure and was expunged from the Employees file and could not be used in any future Disciplinary action (if any) against the Worker. The Employer agreed to the Employees  Representative request to put this in writing to the Employee which the Employer did on November 25th 2021 and a copy was provided to the Adjudicator.

At the Hearing the internal Shop Steward (who was not on record as the Employee Representative for the Hearing), , wished to introduce the issue of the delay in hearing  the internal appeal of the warning and suspension and a bullying matter. As these issues were not part of the original complaints the Employer objected to these issues being introduced and the Adjudicator accepted this argument since the issues were not contained in the original complaints and a party to adjudication proceeding cannot seek to expand their complaints beyond that which they originally complained. The critical issue is the right to appeal, which the Adjudicator notes was exercised and in both incidents the severity of the disciplinary action was reduced. However, this issue was not properly before the Adjudicator.

As the warning and suspension are no longer at issue in the employment contract relationship I find and concur with,  the precedent set by the Labour Court in their Finding in LC 21928  (and many other similar circumstances) as it is highly relevant and similar to this complaint which the Court concluded as follows; “The disciplinary procedure of the Respondent provides that a final written warning shall ‘remain on a staff members personnel file for 12 months. The Employer confirmed to the Court that the warning expired on the 28th June 2018. The Court finds therefore that the warning has no existence following the lapse of 12 months from date of issue. The Court therefore concludes, in accordance with the disciplinary code under which it was issued, that the fact of a written warning having been issued to the Appellant has no meaning for the Appellant in terms of her employment or her relationship with her employer since 8thJune 2018. In those circumstances the Court has decided that no decision it could make on the substance of the within matter could have any effect on the worker concerned.

The Court recommends that the parties should accept that the matter was resolved as an industrial relations matter on 30th May 2018 when the impugned warning ceased to have existence. The warning should therefore be removed from the file”.

The Adjudicator has decided that no Recommendation it could make on the substance of the within matter could have any effect on the worker concerned. All disciplinary actions have lapsed and are expunged from the Employees record. The Employee had a fair procedure internally and right of appeal to an Independent Chair. The Adjudicator recommends that the parties should accept that the matter was resolved as an industrial relations matter on Mach 11th  2020,  when the final warning ceased to have existence and the suspension became moot. The Adjudicator Recommends that the warning should therefore be removed from the Employees Personnel file and the contents of the Employer letter dated November 25th 2021, be placed on the Employees file.  The issues of compensation for the appeal delay (and as noted above the Employee exercised these appeals fully) and bullying were not properly before the Adjudicator and therefore I make no Recommendation on these issues.

The Adjudicator notes that no negative inference on the Employees good intentions or bona fides in the incidents were put forward by the Employer in the circumstances of this case and this is important for the Employee to understand and take on board, for the future.

Disciplinary Appeal