FULL RECOMMENDATION
PARTIES : BUS ATH CLIATH - DUBLIN BUS DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No’s: ADJ-00024208 CA-00030961-001. Background The Complainant commenced employment with the Respondent as a Bus Driver in 2007. His Employment came to an end on the 24thApril 2019. The Respondent submits that the employment came to an end because the contract was frustrated by a supervening event. The Complainant submits he was unfairly dismissed and not afforded fair procedures. Facts not in dispute between the parties At the commencement of the second day of hearing the parties agreed that the following facts are not in dispute: On 17thNovember 2014 the Complainant was involved in a fatal accident while driving a bus. On 11thNovember 2018 the Complainant was convicted of careless driving causing death. On foot of that conviction the Complainant received a four-year driving ban effective from 1stJanuary 2019. From that date the Complainant was not allowed to drive but the Respondent continued to pay his wages until the employment came to an end. The Complainant informed the Respondent that he was appealing the conviction and his solicitors wrote to his manager Mr Tim Fitzgibbon on the 18thDecember 2018 confirming that his appeal had been lodged. On the 1stJanuary 2019 the Head of HR Mr Donoghue wrote to the Complainant’s solicitor seeking clarification as to whether the driving ban imposed continued to take effect now an appeal had been lodged. As no response was received Mr Donoghue wrote again to the Complainant’s solicitor on 25thJanuary 2019 but did not get a reply. On 21stFebruary 2019 Mr Fitzgibbon the Complainants line manager contacted the Complainant and advised him that they had not received a reply from his solicitors. The Complainant undertook to contact his solicitor. On 25thFebruary 2019 Mr Fitzgibbon contacted the Complainant again. On the 28thFebruary 2019 the Complainant attended at Mr Fitzgibbons office and advised that he had not heard from his solicitor. The Complainant was asked to get an update from his solicitor. On the 14thMarch 2019 Mr Donoghue HR received correspondence from the Complainants solicitors dated 7thMarch 2019 confirming that an appeal had been lodged. The correspondence indicated that the appeal did not have a suspensive effect on the order and therefore the driving ban remained in effect from 1stJanuary 2019. By letter dated 14thMarch 2019 the Respondent wrote to the Complainant stating that as he was not currently in a position to drive buses for the Respondent, they had no alternative but to treat his contract of employment as having been frustrated by virtue of his driving ban. The letter also stated that the Complainant was entitled to a six-week notice period, and 19 cessor days which would both be paid. By letter of the 19thMarch 2019 SIPTU on behalf of the Complainant wrote to the Respondent looking to appeal the decision and setting out the basis for the appeal. By letter of 21stMarch 2019 Mr Donoghue on behalf of the Respondent replied advising that as the Complainants contract of employment was frustrated by virtue of his driving ban it was not a matter for hearing by the Disciplinary Appeals Board. SIPTU responded by letter of 26th March 2019 advising that under the agreed disciplinary procedures the Complainant was entitled to appeal the decision to terminate his employment. Mr Donoghue responded by email of 1stApril 2019 stating that the termination did not arise from a disciplinary issue but as a result of the ban and therefore it was not a matter for the Disciplinary Appeals Board. By letter dated 30thApril 2019 Mr Donoghue wrote to the Complainant referencing the letter of the 14thMarch 2019 and advising that his dismissal was effective from the 24thApril 2019. It was not in dispute between the parties that the Respondent has on occasions facilitated staff who had what they considered a short time ban which the employer submitted was typically six months and the Union submitted could be twelve months, by moving them for that period to alternative duties for the period. Summary of Respondent’s submission Ms Maguire BL on behalf of the respondent submitted that the employment came to an end by way of frustration of contract. The Complainant was employed as a bus driver and was involved in a fatal accident. Following the incident there was an internal investigation which resulted in the Complainant receiving a disciplinary sanction which included a final written warning that expired after 18 months. However, sometime later, the Complainant was also prosecuted in the Circuit Court. His trial concluded on the 11thNovember 2018, and he received a four-year ban from driving commencing on the 1stJanuary 2019. It is the Respondent’s submission that it did not dismiss the Complainant but that the contract of employment was frustrated when he received a four-year driving ban. The driving ban meant that the contract could not be performed therefore by operation of law the contract was terminated. The Respondent opened to the Court a number of cases in support of their contention that the contract came to an end by way of frustration. Ms Maguire BL submitted that the frustration arose from the imposition of a four-year driving ban and was not the fault of either party. It was her submission that the circumstances in this case met the seven principles set out in the case ofMcGuill v Aer LingusUnreported High Court 3 October 1983 and followed in other cases since then. Ms Maguire BL submitted that in particular the circumstances that led to the contract becoming incapable of being performed were not occasioned by either party to the contract. The event in this case the imposition of a four-year ban was unexpected and was not something that could have been foreseen by either party. It is her submission that the Complainant is seeking to rely on clause 11 of the contract which provides “Ifthe employee fails to maintain a valid driving licence, they will be in breach of the company’s regulation. This breach will be treated as gross misconduct and will entail disciplinary proceedings which could result in dismissal” and has submitted that the Respondent anticipated events such as occurred in this case might occur and made provision for same in the contract. The Respondent does not accept that clause 11 in the contact covers the issues that arise in this case. Failure to maintain a valid driving license and receiving a four- year ban on foot of a criminal conviction cannot be considered to be within the same category. The Respondent does not dispute that from time-to-time Drivers who for one reason or another cannot drive have been redeployed to other duties for short periods of time. The Respondent submits that it has limited capacity to redeploy drivers but the period intime in question in this case was four years which is not something they could facilitate. Ms Maguire BL on behalf of the Respondent also submitted that if the manner in which the employment came to an end was a dismissal, then it was a fair dismissal. Ms Maguire BL submitted that this case falls within the ambit of section 6(4) (d) of the Act. In this case the Complainant was a driver who could not drive without breaking the law as he was banned from driving. It is the Respondent’s submission that the dismissal related solely to the fact that the Complainant could no longer drive and would not be in a position to do so for four years. The Employer had waited until the Complainant’s solicitor had confirmed that the driving ban remained in place pending the appeal before terminating the employment. It is the Respondent’s submission that the circumstance of this case falls clearly within what is envisaged under section 6(4) (d) and therefore the dismissal is fair. Summary of Complainants case The Union on behalf of the Complainant submitted that he was unfairly dismissed in that the Respondent did not follow any process in coming to the decision to dismiss. In respect of the Respondent’s submission that the doctrine of frustration applies the Complainant does not accept that. The Union referenced a number of cases where the Courts have indicated that the doctrine of frustration should only apply in rare cases in employment law. It was their submission that there had been previous incidents where Drivers had received a driving ban and the Respondent had not claimed frustration of contract. Nor had the individual been dismissed. The Union also submitted that the contract could not have been frustrated as the Respondent paid the Complainant six weeks notice, based on a clause contained in the contract. The Union submitted that the dismissal was unfair in that the Respondent had not followed any procedure. They noted that the Respondent was relying on section 6(4) (d) of the Act, but it is their submission that does not remove the requirement for the Respondent to engage with the Complainant. The Union had sought to have the decision to terminate the employment appealed through the internal disciplinary procedure but the Respondent had refused this request. The Union referenced some caselaw in support of its contention that the Respondent should have engaged with the Complainant in advance of coming to the decision to terminate the employment but accepted that the caselaw referenced referred to cases under sections 6(4) (a) (b) and (c) of the Act and not section 6(4) (d). It was the Union’s position that the same principles should apply to a dismissal arising under section 6 (4) (d) of the Act. The Law The Unfair Dismissals Act 1977, as amended states, in relevant part, as follows: Section 6 of the Unfair Dismissals Act 1977, as amended, states, 6.—(1) 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. (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) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute. Issues for the Court to consider. Two issues are before the Court for consideration. 1) Did the employment ended by way of frustration of contract and or 2) was the dismissal a dismissal that fell within the ambit of section 6 (4) (d) of the Act and if so, was it a fair dismissal. Discussion The Court decided to consider the second question first as the complaint before the Court was taken under the Unfair Dismissal’s Act 1977. As set out under the agreed facts above it is not disputed that the Complainant was banned from driving for four years starting on the 1stJanuary 2019. Section 6 (4) (d) set out above sets out that a dismissal for the purposes of the Act will be deemed not to be unfair if the reason the employee is unable to work in the job, he held or that to do so would mean the contravening of a duty or restriction imposed by or under any statute or instrument made under statute. In the case to hand the Complainant could not drive without breaching the driving ban imposed by the Court. Therefore, the Court determines that the facts of this case fall within the ambit of that section of the Act. The next issue the Court considered was whether the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) as required by section 6 of the Act. In this case neither party submitted that that the dismissal arose from anything other than the four-year driving ban imposed by the criminal court. On that basis, the Court was satisfied that the dismissal arose wholly from one of the matters specified in subsection (4). The Court notes that the Respondent once the ban came into effect and they were put on notice of the appeal sought clarification as to what if any impact on the ban the appeal would have and that they continued to pay the Complainant during that period. In the circumstances of this case where the Complainant’s ability to continue to work in the position he was recruited to was hampered by a legal impediment, the Court determines that the Respondent is entitled to rely on section 6 (4)(d) of the Act and therefore his dismissal was not unfair. Having determined that the dismissal was fair in line with section 6(4)(d) of the Act the Court determined that it did not need to go on to consider the issue of frustration of contract. The decision of the Adjudication Officer is upheld. The Court so Determines.
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