Complainant

Respondent

Parties

Paul  Gannon

Go-ahead Transport Services (Dublin) Ltd Go-ahead Ireland

Representatives

National Bus & Rail Union

 Stratis Consulting

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-00039994-001

22/09/2020

Paul Gannon was employed as a bus driver from 5th May 2019 until his employment was terminated on the 6th August 2020. His contract was based on a forty-hour working week for which he received €591.60 per week.

His employment was terminated on August 4th, 2020 following an incident related to his roster.

The respondent, GoAhead Ireland has a single union agreement recognising SIPTU as the union representing all drivers for collective bargaining purposes.

The NBRU is seeking to be recognised for collective bargaining purposes with the company. The company accepts that employees who are members of the NBRU can be represented on individual issues under the grievance and disciplinary policies.

This is for reference only as the industrial dispute is unrelated to this case. 

Paul Gannon has acted as a representative for some drivers on individual cases. One such issue related to how the start and finish times of “spare duties” are communicated to individual drivers.

Driver rosters are based on the requirements of the schedule and every effort is made to ensure that all drivers are treated fairly. Drivers are given a minimum of four weeks’ advance notice of their exact starting and finishing times.

In addition, drivers may be allocated as “spare drivers” where a minimum of seven days’ notice is given of the exact start and finish time for that day. The information relating to spare duties is available to all drivers on a mobile app or if requested the driver may receive the information by email or from their supervisor.

The NBRU has challenged this method of communication on the basis that it does not comply with s.17 of the OWT Act. The company is satisfied that it is compliant with the Act.

Paul Gannon arrived at the depot on the 14th July 2020 at 05.00 hours.

This was a day when he was acting as a ‘spare’ driver and was scheduled to attend work at 12.30. The respondent believes this was a calculated act in support of the grievances relating to s.17 of the OWT Act. He would have known his exact starting time by referring to the mobile app which would have given him a minimum of seven days’ advance notice.

The facts of this case are not in dispute. It is the complainant’s case that the motivation behind the dismissal was directly related to trade union activity.

The respondent accepts that it dismissed the complainant and accepts the onus to prove the dismissal was not unfair. There are two relevant criteria to successfully defend the complaint.

The first is whether the decision of the company to dismiss a bus driver for deliberately refusing to follow a legitimate instruction to leave the depot during a period of high Covid-19 restrictions is a sufficient justification to warrant summary dismissal.

Is this within the range of options that a reasonable employer would apply?

The company takes issues of health and safety very seriously.

In July 2020 during the pandemic it was required to provide public transport while ensuring the safety of passengers and staff. Strict rules were in place that only staff who absolutely needed to be on the premises were allowed and then only provided they followed strict protocols around social distancing.

The complainant was requested to leave the premises on July 14th and told that he should return at 12.30.

He requested to remain on site until 12.30 or when his union representative would turn up. This request was refused as other staff would be using the canteen facilities where he had positioned himself at the time.

A number of managers requested him to leave as he was not compliant with Covid-19 restrictions.

He was eventually given a direct instruction to do so but persisted with his refusal.

Following further instructions and his continuing refusal the respondent took the decision to suspend him, on pay, pending investigation and once again he was instructed to leave.

He had been informed that his union representative would not be allowed enter the depot. Once again, he refused to leave even though he was suspended and would not be working pending the outcome of the disciplinary investigation.

The second criterion relates to the respondent’s following proper procedures as set out in in its own policy and consistent with the standards set out in S.I. 146.

At all stages the respondent was very clear as to seriousness of the charges.

Advance notice was given of each and every meeting, with copies of procedures and statements attached and an opportunity given to prepare in advance.

Full representation was afforded at every stage and an opportunity given to put forward any mitigating circumstances or other defences as considered relevant.

The original investigation was fact finding and the disciplinary hearing was conducted by an independent manager. An appeal against the decision was provided for and another independent manager heard the appeal.

The facts of this case are not in dispute and the events of July 14th are accepted.

A critical question in this case is the degree to which the complainant contributed to his own dismissal. At all times he knew exactly what he was doing and deliberately refused to leave, despite public health restrictions and knowing the full consequences of his actions.

A detailed extract from the company letter confirming the outcome of the appeal and the procedures followed was submitted in evidence as it clearly sets out the arguments of the complainant and the company response.

In conclusion, in July 2020 the company was providing public transport service in the most difficult conditions and strict protocols had to be introduced and enforced. If one driver tested positive for Covid-19 then all drivers in direct contact with that person would have to self-isolate.

Paul Gannon knowingly breached the restrictions and refused numerous direct instructions to vacate the depot putting himself and colleagues at additional risk of infection.

It was necessary and appropriate to enforce strict adherence to Covid-19 protocols.

The actions of Paul Gannon on the day do not constitute action in furtherance of a trade dispute. The union had not informed the company of a trade dispute and cases under s.17 of the OWT Act have been and are currently being pursued under that legislation.

There are significant numbers of NBRU members employed by GoAhead Ireland, and while the company does not recognise the union for collective bargaining purposes, members of the NBRU have been treated the same as all other drivers.

The procedures used by the company are in compliance with natural justice, S.I. 146 and company procedure; this has not been challenged by the complainant.

It is the company contention that Paul Gannon contributed 100% to his own dismissal by his actions in breaching public health rules and refusing to follow numerous legitimate instructions given to him directly, no reasonable explanation was provided which stood up to scrutiny.

Without prejudice to the position of the company that the dismissal was not unfair and within the bounds of what a reasonable employer would have done in the circumstances, the company contends that Paul Gannon contributed in a very significant way to his own dismissal. It is the company contention that the above would amount to 100% contribution to their own dismissal.

Paul Gannon’s roster comprised a mix of early, middle, late duties that had varied starting and finishing times, and additionally, what is described as ‘spare duties’, which had no start and finish times.

The complainant was an elected trade union representative for the National Bus and Rail Union (NBRU). His employer refuses to recognise the NBRU for collective bargaining purposes.

In the course as his role as an NBRU representative, the complainant had attended   a number of meetings with management accompanying co-workers arising from breaches of section 17 of the Organisation of Working Time Act, 1997.

The tendered contract operated by Go-Ahead Ireland and the terms of its Road Transport Operators Licence (RTOL), require that it mustcomply with Irish Employment law.

1.      Section 17 (1) of that Act states:

If neither the contract of employment of the employee concerned an employment regulation order, registered employment agreement or collective agreement that has effect in relation to employee specifies the normal or regular starting and finishing times of work of an employee, the employee’s employer shall notify the employee, subject to section (3) at least 24 hours before the first day or as the case maybe the day, or  as the case may be, the day, in each week that he or she proposes to require the employee to work, of the times at which at which the employee will normally be required to start and finish work on each day, or, as the case may be, the day or days concerned of that week.

Section 17(3) of the Organisation of Working Time Act essentially states, inter alia, that when an employee is off prior to working a shift or duty that does not have a regular start or finish time, the employer shall notify him or her at least 24 hours prior to the last day worked. This means that where there are no normal start and finish times, the employer shall notify the employee at least twenty-four hours in advance.

There is also a requirement that the employer post the notice of such start and finish times in a conspicuous location.

The complainant says that the respondent does not comply with section 17(5) of the Act in circumstances where its employees do not have a fixed start and finish time but uses a third-party computed application (WhatsApp) to post duties. It does not supply any equipment for drivers to access the app and they are expected to use their own devices.

It must be noted that the respondent has a ‘zero-tolerance’ gross misconduct policy for handling or even displaying smart phones whilst on duty.

The complainant chose not to use his personal      phone for work purposes.

On Friday July 10th, 2020, the complainant finished his duty and was scheduled to be off duty on the next three days. He checked the notice boards in the depot prior to leaving and no   information on his next duty was displayed. The depot was not      manned so there was nobody to advise him of his duty.

On July 14 th 2020, the complainant reported at 05.00, the earliest time he could have been rostered.  He did this because there was no pattern as to how these spare duties were rostered and if he had arrived later, he could have missed the allocated duty.

When he arrived the supervisor on duty told the complainant that he was rostered for a duty commencing at 12.30 pm and he would be marked absent if he did not report back.

The complainant stated that he would stay on the premises as the employer had not complied with the requirements of the 1997 Organisation of Working Time Act.

An Assistant Operations manager then spoke to the complainant, telling him that he could not pick his own start time. A second Assistant Operations manager then spoke to him and suspended him for refusing to leave.

Another manager theninformedthe complainant that he was suspended, should not beon the premises and said that his representativewould notbe allowed onto the site.

The complainant lodged a grievanceon July 22nd, 2020 arising fromthefailureof the respondent toafford him hisstatutory rights to notice as set pout above in section 17 of the Act. Hefelt itwas his duty,asatrade union representative,togetthisproblemof nonotificationresolved.

He was invited to a disciplinary hearing on July 27th to face an allegation related to his “failure to comply with reasonable instructions given by Supervisors and Managers".

A Grievance Hearing took place on Friday 30th July 2020. He was notified on August 1st, 2020 that the grievance had not been upheld.

The company advised him that "On 2nd July 2020 a notice was displayed in the depot that advised that all spare duties had been allocated up to and including 25th July 2020, therefore there was no reason for you not to be aware of your duty on the day in question".

In fact, that notice merelystated thatsparedutieshavebeenuploadedtotheapp.Atnotimehad  thestartandfinishtimesofthe complainant’sdutybeendisplayedinanotice posted in a wat that was complaint with theAct.

A disciplinary hearing was held on July 28th, 2020, and the outcome was communicated by letter of August 4th.

The outcome letter introduced a new charge that had not been listed in the original, namely that the complainant "conducted himself in an intimidatory manner towards a female colleague in the company’; a charge which had not been put to him for a response.

The witness statement from the female colleague stated "he the complainant) tried to intimidate me by saying we are not in compliance with Irish Law":

There was no suggestion of shouting, violence, or inappropriate behaviour but a statement alleging that he spoke  about breaches of the law. This does not represent intimidation.

The introduction of a charge after the hearing is a breach of natural justice and fair procedure requirements. See In Re Haughey [1971] and UDO 202 RCI Call Centre (Ireland Ltd) v Ibrahim Salah. In Salah the Labour Court determined that the worker had been unfairly dismissed.

In that Determination the Court referred to, of Redmond on Dismissal Law (3rd Edition,) Bloomsbury Professional: Des Ryan at para 13.72

"Heavy emphasis has been laid in recent case law on the duty on an employer to set out clearly allegations made against an employee from the outset, with the employer not being permitted to augment the allegations as the investigation progresses. This is because an employee is entitled to be informed at the outset of the complaint(s) being made against him or her to ensure he or she has a meaningful opportunity to prepare and present his or her defence".

The Court went on to say that;

 "It appears to the Court that the complainant was not informed at the outset of the investigation of all the allegations ultimately raised against him. This raises a question in the Courts mind as to whether he was afforded a proper and meaningful opportunity to present his defence to t hem.

The actions of the respondent are identical in that a charge was introduced subsequent to a disciplinary hearing.

Furthermore, the respondent has contravened its own procedures which state all employees "will be made fully aware of the charges against them and the case that they must answer.’   

The Grievance outcome was appealed and that was acknowledged in correspondence dated 6th August 2020. No appeal hearing took place.

The complainant’s appeal against the disciplinary outcome was submitted in evidence. The disciplinary appeal was heard on 20th August 2020 and the outcome of that appeal was notified on 26th August 2020, upholding the dismissal.

The decision maker dismissed that fact that this charge was introduced postdisciplinary hearing and offered an opinion that the complainant’s behaviour wasintimidatory. As already stated above, the allegation of intimidation,introducedpostdisciplinaryhearingheldon28thJuly2020wasalsodismissed.

The contravention of the requirements of the Organisation of Working Time Act by Go-Ahead in denying the complainant his statutory notification as required by section 17 of the 1997 Act, and the manner in which this action has been downplayed and dismissed by the company is conduct that must be considered in the context of this dismissal.

Go-Ahead failed to grant the complainant his Statutory entitlements with regards to minimum notice, which caused his arrival at 05.00 hrs on the 14th July 2020, introduced a new charge post the disciplinary hearing, failed to hear a grievance appeal linked to this case.

The manner in which all the complainant's arguments have been swept aside and disregarded by Go-Ahead Ireland, suggest that this dismissal is not about his attendance at 05.00 on July 14th, 2020 but is about his trade union activities, especially related to section 17 of the Working Time Act. A sample of cases taken by the complainant was provided.

The complainant submits that he was unfairly dismissed because, as a  trade union representative and worker, he sought to have his statutory rights to minimum notification of duty implemented.

The conduct of Go-Ahead Ireland, and their flagrant contempt for legal entitlement to minimum notice of its employees is central to this unfair dismissal.

The breach of their own agreements relating to notification of charges, and the introduction a new charge after the disciplinary process alone renders this dismissal unfair. It is inherent in the constitutional protection of fair procedures that there must be a fair opportunity between both sides to present their case. How can one present their case if the charge is introduced afterwards?

Similarly, accusations that he breached Covid-19 policy are inconsistent with the statements which state he was alone in an empty canteen.

As will be seen form the submissions of the parties the general narrative of what happened on the morning of July 14th is not in dispute, except in respect of detail, and of course the interpretation of the sequence of events.

The complainant presented for work at the earliest possible time on the basis that he did not know what time he was scheduled to work, and thereby avoid any risk of missing his shift in the event that he had been rostered for the earliest starting time.

It will be also be clear that there were also further complicating issues in the background.

There was a continuing dispute between the complainant in his role as a shop steward and the company about how certain drivers should be notified of their shift arrangements.  

This is further complicated by the fact that the complainant’s union is not a recognised union for collective bargaining purposes by the respondent. It recognises another union for this purpose.

Nor does it end there. The respondent uses a smart phone app to relay information about starting time which the complainant declines to use.

And if these factors were not enough, there are the difficulties arising from the Covid-19 pandemic and the related public heath restrictions.

All parties acknowledge the first three factors above, and while the respondent says they are referred to only for background the union submits that the complainant was dismissed for trade union activities.

The respondent’s position is that the breach of discipline for which the complainant had his employment terminated arose directly from his failure to abide by a lawful instruction to leave the premises.

In addition to the normal authority an employer has to issue such an instruction, in this case there was a further imperative because of the pandemic and the possible risks to public health of its employees and its customers.

There is the additional issue of the complainant’s interaction with one of his female managers, and I will return to that below.

It is relatively easy to conclude that the complainant’s conduct would have warranted disciplinary action at any time, and the public health context compounded it. 

He could have very easily established the position regarding his shift by accessing the app. His union says he chooses not to use his personal phone for work purposes. This may be his choice, although to refer to a modern smart phone with its multiple functions and uses as a ‘personal phone’ indicates a degree of detachment from reality. 

This is an instrument on which many people read the daily newspaper or listen to the radio (or watch television), send photographs of family events, interact with social media, do their shopping and banking or count the number of their daily steps, to name but a few of those uses. It even played a part in contact tracing in the pandemic.

It is a modern communication device; a hand-held computer, which is used least often as a telephone for many people. Therefore, making a principle out of not using a ‘personal device for work purposes’ has somewhat dated resonances.

In any event, the respondent says that there are other ways to find out what the rostering arrangement by ringing a manager or requesting an email. The complainant did none of these because of his agenda in relation to compliance with the Organisation of Working Time Act.

So, when he did choose to attend for work rather than use his hand-held device and discovered that he was not scheduled for work, the correct course of action was to go home as eventually instructed (or indeed even without being instructed) and take whatever steps he wished to pursue any grievance he had with the company’s compliance with the law, as he saw it.

He was a voluntary trade union official and well knew the procedures for doing so.

He did not do so.

He embarked on a studied and provocative confrontation with the respondent, and of clear defiance of his employer’s instructions, in pursuit of what was effectively an agenda related to his union’s attempts to secure recognition.

His further action in remaining on the premises and inviting a third party to attend was quite irresponsible in the circumstances of the pandemic.

So, the complainant most decisively put himself in the way of disciplinary proceedings, and following suspension, that is what happened.

The focus now shifts to the disciplinary process and the respondent has set out above how it says it complied with requirements of fair procedure in relation to the conduct of the process.

For convenience of the reader, I set out again the relevant section of the respondent submission, correctly setting out one of the tests it felt it had to meet.

The second criterion relates to the respondent’s following proper procedures as set out in in its own policy and consistent with the standards set out in S.I. 146?

At all stages the respondent was very clear as to the charges and the seriousness with which they were viewed.

Advance notice was given of each and every meeting, with copies of procedures and statements attached and an opportunity given to prepare in advance. Full representation was afforded at every stage and an opportunity given to put forward any mitigating circumstances or other defences as considered relevant.

The original investigation was fact finding and the disciplinary hearing was conducted by an independent manager. An appeal against the decision was provided for and another independent manager heard the appeal.

Indeed, the complainant does not take issue with this either, up until the outcome letter was issued. Again, for convenience that section of the complainant’s submission is set out again.

The outcome letter introduced a new charge that was not listed in the original, namely that the complainant "conducted himself in an intimidatory manner towards a female colleague in the company’; a charge in respect of which he never had the opportunity to respond.

The witness statement stated "he the complainant) tried to intimidate me by saying we are not in compliance with Irish Law": There is no suggestion of shouting, violence, or inappropriate behaviour but a statement alleging that he spoke  about breaches of the law. This does not represent intimidation.

Furthermore, the introduction of a charge after the hearing is a breach of the principles of natural justice and fair procedure…….’

This raises a number of problems, obviously the key one is that contained in the final paragraph above.

In the first place the manager in question, while she used the phrase ‘he tried to intimidate me’ followed it by saying he did so ‘by saying we are not in accordance with the Irish law’ and asserting that the NBRU had won a case on this issue elsewhere.

Apart from those words being used by this witness in her statement, it seems excessive to characterise how she herself described the incident as an attempt at intimidation, although some element of a subjective test applies here.

But, the conclusion of the disciplinary decision maker on this point must be regarded as unreasonable. It was not clear from the record that any intimidation took place.

However, turning to the key issue raised by the complainant the Disciplinary outcome letter set out his two findings as;

You refused to follow reasonable supervisory and management instruction to leave Ballymount depot o the morning of 14th July 2020

You conducted yourself in an intimidating manner towards a female colleague in the company

The complainant says that this represents the introduction of an additional ‘charge’ of which he had not previously been notified and refers to various authorities.

While one is at a loss to understand why the decision maker felt he had to add anything to the rather serious alleged breach that was before him, (of refusal to follow a management instruction) he nonetheless did so, and this is an objection that must be considered. It formed a key part of the complainant’s internal appeal.

This issue was somewhat fudged at the appeal.

While a discussion took place as to whether the words spoken could be considered to be intimidation and it was accepted that ‘intimidation was not intended’, the appeal decision maker did not consider the issue on its merits as to whether this was, as submitted here by the complainant, a ‘charge’ which was added after the initial notice of the hearing.   

She (the decision maker) did say that she did not consider the allegation of intimidation in reaching her decision, (and she found that the decision to dismiss was warranted even without it).

She ought to have done so as the point raised about it being an added ‘charge’ was one of the key points of the appeal. Nonetheless, this is a sort of backhanded excision of the charges which has some significance.

In my view this was not an ‘augmentation’ of the charges and to describe it as such is to take an excessively legalistic view of the workplace disciplinary process, and in particular what constitutes a ‘charge’.

Workplace disciplinary proceedings are not a criminal trial. The witness statement to which he took exception, and which contained the allegation formed part of the bundle of materials sent to the complainant for the disciplinary hearing.

The critical part of that statement and others was his refusal to accept a lawful instruction to go home. He was also fully aware of the witness’s statement about her reaction to his comments.

For that reason, the respondent actually complied with the key elements referred to in the quotation above from Redmond on Dismissals. The complainant was fully aware of all the complaints against him, and the full narrative that would form the substance of the disciplinary hearing.

In my opinion, the first instance decision maker erred; first of all, in concluding that it did represent intimidation and secondly in appearing to state this as a ground for his decision.

More precisely, what he did was refer to the discussion that had taken place at the disciplinary hearing about the witness statements and concluded that the allegation of intimidation related to the incident was ‘well founded’. Interestingly the complainant has not disputed the assertion that the incident was discussed.

But it is not an error that renders the process defective to the extent that it is unfair.

Looking again at the complainant’s submission and reliance on the extract from Redmond (above);

"Heavy emphasis has been laid in recent case law on the duty on an employer to set out clearly allegations made against an employee from the outset, with the employer not being permitted to augment the allegations as the investigation progresses. This is because an employee is entitled to be informed at the outset of the complaint(s) being made against him or her to ensure he or she has a meaningful opportunity to prepare and present his or her defence".

The general allegation against the complainant related to his failure to leave the workplace.

The interaction with this manager represented one of the occasions when he refused to do so and in the course of which it was alleged that he intimidated her.

He was well aware of this allegation from her witness statement and while it had not been framed as a specific allegation he had every opportunity to address and rebut the allegation at the disciplinary hearing, contrary to what was alleged in his submission.

There was no lack of clarity about what the complainant was facing in this case, including the detail complained of.

I do not think, as a matter of principle, that there is a requirement that every detail which forms part of the interaction between parties in the course of an incident which leads to a disciplinary process requires to be particularised as an individual ‘charge’, as long as an employee is given all relevant information on which a decision will be made.

An employee who is the subject of the process may not be ‘ambushed’ by fresh allegations in the course of the hearing or worse, have findings against him which have not been properly put to him, or at all.

Otherwise, an evaluation of the complainant’s general conduct in the course of an incident is permissible as long as he is on notice of all of the facts being considered.

An example of something which would not be permitted might be that the complainant was confronted with an unrelated allegation related to his timekeeping, or an earlier incident related to his driving, and either not given adequate or any opportunity to address it.

There was no ‘augmentation’ of the allegations related to the incident with this manager which formed but part of the detail of the overall incident already put to him.

It is naive to think that the general context in which the complainant’s conduct took place would not form part of the decision maker’s assessment of its gravity and he had every right to do so. 

There were significant aggravating factors in the case; the length of time the complainant remained on the premises, the pandemic, his several refusals to leave, and others. All of these will validly play a part in assessing the conduct of the complainant and its gravity.

Had the decision maker framed his comments differently, for example had he stated that he had taken the complainant’s general or specific conduct into account (including the interaction with the manager in question) it would have been unexceptionable.

Lay managers cannot be expected in all cases to display a level of judicial writing skills in constructing a disciplinary outcome letter.

In any event, this aspect of the matter was addressed on appeal, when the decision maker at that stage discounted it as relevant to her decision. She was correct to do so even though as I noted earlier she should have addressed it as a ground of appeal and stated her reasons for any finding she reached.

These are undoubted inadequacies in the conduct of the process. However, in general the process was fair and the complainant’s rights to fair procedure were not displaced by these inadequacies.

It is also worth noting the following from Redmond on Dismissal Law

‘The legitimacy of the processes adopted by an employer may be subordinated to the substantive merits of a particular case. An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss an employee"

Para 13.20

While this must be treated with great caution as it does not provide a general carte blanche for procedural shortcuts or deficits, but as noted above, some sense of proportionality must apply when considering the requirements of fair procedure in a workplace disciplinary process

The complainant’s actions brought him well within the disciplinary framework which, despite some shortcomings referred to above provided him with a fair and full opportunity to account for his actions.

The respondent’s decision to terminate his employment lay well within the range of reasonable sanctions having regard to all the facts.

I therefore conclude that the dismissal was fair.

I do not uphold complaint CA-00039994-001. The complainant’s dismissal was fair.

Unfair Dismissal