Complainant

Respondent

Parties

Krzysztof  Rawski

J J Kavanagh & Sons Ltd

Representatives

Mr D Morgan BL instructed by Melissa Wynne of Seán Ormonde & Co.

 Ms D Donovan BL with K Grace CPA.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041035-001

16/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00041035-002

16/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00041035-003

16/11/2020

The Complainant was employed as a Bus Driver by the Respondent Bus Company in the Southeast of Ireland. The Employment began on the 1st June 2017 and ended on the 10th November 2020.

The Complainant alleged that he was Discriminatorily dismissed contrary to the Unfair Dismissals Act,1977, on the Racial origin grounds (he was Polish) by the Employer. This being (CA-00041035-001)

The Employment Equality Act,1998 (EEA) complaint of Discriminatory Dismissal (CA-00041035-003) was withdrawn at the Hearing on the 4th May 2022. However, the other elements of this Equality complaint remained.

The Minimum Notice complaint (CA-00041035-002) was withdrawn on the basis of an acknowledgement of satisfactory payment from the Employer.

The rate of pay, at date of referral,  was € 577:00 for a basic week.

1:1        Unfair Dismissals Act,1977 complaint (CA-00041035-001)

The Complainant submitted a Written Submission and gave an extensive Oral testimony.

The Employment as a Bus Driver began in June 2017 and the work generally was the Night run to Dublin Airport from Clonmel. He had a limited command of English especially in written format. On the 16th September 2020 the Complainant sent a text message to another driver complaining that the other driver was taking “the better buses”. He also phoned this colleague Mr O’S to complain but due to poor English was unable to have a satisfactory conversation. Shortly afterwards the Complainant received a Whats Ap calling him to a meeting on the 29th September -he was not advised of the subject matter and no translator was provided.  At this meeting he was advised not to contact other drivers and was placed on paid suspension. He was invited to an Investigation meeting on the 16th October 2020 and provided with two allegations namely that he had been aggressively contacting colleague Mr.O’S and had been talking negatively about Mr O’S to other drivers.

The investigation meeting was chaired by Mr Kleszcz, a native Polish speaker. No documentation was provided to the Complainant, no witness statements and no opportunity to challenges nay of the allegations were allowed. The Investigation decided to move the process to a Disciplinary Hearing on the 29th October 2022 chaired by Mr D O’Neill. The Complainant was dismissed on grounds of Gross Misconduct. The meeting lasted only 15 minutes and the Complainant was offered no chance to review evidence or challenge any of his accusers. He lodged an Appeal which was heard on the 9th November 2020 -chaired by Mr K, a joint Director and part Owner of the Company. The Appeal was unsuccessful.

In summary the Complainant maintained that the entire process from Investigation to Appeal had been a travesty of all rules of Natural Justice. For example no proper procedures were allowed, no opportunity to question witnesses was afforded, no proper documentation  was provided and the Appeal to Mr. K was entirely flawed as he could not be properly independent . The absence of witnesses, who could have been challenged, from all meetings was in itself a complete and fatal flaw in any Respondent defence.

Furthermore the Dismissal for Gross Misconduct, in the light of the facts of the case,  was entirely disproportionate . Mr. O’S was granted considerable freedom to be abusive and nasty to colleagues but was never reprimanded. The Complainant maintained that he had been treated completely unfairly due to his being of Polish origin while Irish colleagues were never reprimanded. There was no Respondent consideration of lesser penalties short of Dismissal.

From start to finish it was, to quote  the Complainant Counsel a total “Railroading” exercise. He maintained that as he was Polish, he was effectively dismissed for trivial matters that would have been ignored in an Irish National.

1:2         Employment Equality Act,1998 (EEA ) CA-00041035-002

The Complainant maintained that  he was discriminated against on the Grounds of His Polish Ethnic Origin  and Race . No allowance was made for his lack of English, and he had been treated in a blatant off hand manner. If he had been an Irish Citizen with fluent English, his case would have been handled in a much more professional fashion.

1:3       Legal Precedents quoted

In Legal submissions the Complainant referenced Employment Law in Ireland ,2009 on Fair Procedures, Bolger v Dublin Sport Hotel Ltd UD 45/85 on Proportionality and St Molaga’s School v Dept of Education ,Unreported High Court in February 2009 on the need for Proper Reasoning.

2:1          Unfair Dismissals Act,1977 complaint (CA-00041035-001)

The Respondent submitted a Written Submission and gave extensive Oral testimony from a number of Managers. The Complainant was based In the Waterford Depot.

The Respondent argued that a full and scrupulously fair process had taken place. The behaviour of the Complainant towards his work colleague, Mr O’S, had been completely unacceptable. It had created a tense and hostile atmosphere in the bus depot. Mr O’S had complained in writing on the 29th September 2020 and Management felt that they had to investigate. His immediate Manager Mr T had telephoned the Complainant and the resulting conversation was entirely unsatisfactory from a Management point of view. Mr T, had then initiated the the Investigation process. He had asked Mr K Kleszcz,  a Depot Manager based in Naas, to act as Chairman. Mr. Kleszcz is a Polish national.  He gave a detailed Oral Testimony. He described the meeting, which was conducted in Polish , as very challenging. The Complainant had basically an attitude problem with colleagues, irrespective of nationality and especially with Managers. The incidents with Mr O’S symptomatic of this issue. It was decided to move to a Disciplinary meeting chaired by Mr O’N from Nenagh. The outcome was a finding of gross misconduct and dismissal. The Complainant appealed the Decision, on the single stated grounds of Nationality, to Mr P Kavanagh. Mr K gave a detailed Oral Testimony. Despite the Single Grounds of Nationality being proffered by the Complainant he had been afforded a full opportunity to completely explain his entire position. The Complainant was accompanied by his wife also a Polish speaker.

 Mr K described the Complainant as completely “lacking insight” into how upsetting his colleagues had found his behaviour. He, Mr K ,stated that the Complainant could not offer any reassurances that his upsetting behaviours would not reoccur. The Respondent is a large Bus operator with many drivers on the Road each day. It would not be acceptable from a Safety aspect to have Drivers leaving the Depot, to drive large buses with many passengers, in an upset frame of mind as a result of the upsetting  behaviours of the Complainant.

Nationality, being Polish, had nothing to do with the Dismissal -the company had a multinational range of drivers and of these a significant number were of Polish origin. A key Manager was Polish.

In final summary the Respondent stated that the decision to dismiss was clearly within the Band Of Reasonableness for a Bus Operator and Fair Procedures were followed throughout.

2:2         Employment Equality Act,1998 (EEA ) (CA-00041035-002)

This complaint of Discrimination of Race or Nationality Ground was completely without any foundation. As stated above the Company has many non-Irish Drivers , a good number of whom are Polish, and there was absolutely no evidence of any Nationality aspect to the entire process.

2:3         Legal Precedents quoted

The Respondent quoted extensive Legal precedents. GM Gorfin v Distressed Gentlefolks Aid Association [1973] IRLR on the question of employees creating “Dissention” among colleagues, Labour Court MC Stone Systems v Tyka (UDD1762/20/2017) on the question of procedures and proper Proportionality & the Band of Reasonableness.

3:1     Unfair Dismissals Act,1977 complaint (CA-00041035-001)

The Law. – Natural Justice

In an Unfair Dismissal situation, the guiding principle has to be that of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

More recently SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines.

3:2 The Role of the Adjudicator

There is extensive legal Authority regarding the principle that the Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto rerunning of a Disciplinary case.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

        “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

The former Employment Appeals Tribunal usefully summarised its approach to dismissals for “conduct” and the question of “Reasonableness” as set out in Hennessy v Read and Write Shop Ltd. UD192/1978.

The Tribunal applies the test of “reasonableness” to

1.            the nature and extent of the investigation carried out by the Respondent prior to the decision to dismiss the claimant, and,

2.            whether the procedures adopted were fair and reasonable and

3.            the reasonableness of the conclusion arrived at by the Respondent.

However, all case rest on their own evidence and factual matrix and I will now examine these.

3:3        Consideration of the evidence presented

Detailed written submissions were presented by both sides and considerable Oral testimony was proffered. From an Adjudication point of view and following Mr Justice Flood strictures regarding Natural Justice above, a number of important questions arose . These could be listed as

·         Natural Justice and Procedures/Si 146 of 2000

·         Proportionality of Dismissal Decision & Band of Reasonableness

·         Overall Context / Behaviours of Both Parties.

3:3:1      Natural Justice and Procedures/SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures.

This was, to quote a popular saying, a “Curates Egg” i.e. some good and some bad aspects. The Procedural Steps, Investigation, Disciplinary and Appeal, to be properly followed, were clearly in evidence. Proper Documentation was used throughout. Different Managers handled each stage and the only Adjudicator concern might be the question mark over the Independence of Mr P Kavanagh as the final Appeals Chairman.

Where a more serious Adjudication question arises is the question of witnesses at Hearings and the cross examination/ examination of same by the Complainant. It appeared that Mr O’Shea who had made the original complaint was never questioned in a formal setting by the Complainant. He was effectively denied, contrary to Natural Justice, an opportunity to confront his accuser face to face.

The question of Translation of Proceedings was also an issue although the Complainant was accompanied by his wife, a Polish speaker, a most key meeting. The initial Investigation meeting was crucially carried out in Polish by Mr Kleszcz ,  the Naas Depot Manager.

On overall balance and quoting the August 2017 WRC case cited by the Respondent Counsel, Ms Donovan, a General Operative v A Manufacturing Company “While the process undertaken was not without fault ,on the whole process was comprehensive and fair” the process in this casewas good but certainly far from perfect. Natural Justice does not have any convenient short cuts.

3:3:2        Proportionality of Dismissal Decision & Band of Reasonableness

All Legal precedent points to the decisions in this area as proper to the Respondent employer, a major Bus operator. Having listened carefully to the Oral testimony from Mr P Kavanagh, the Owner and Final Appeal person, it was his clear view that the Complainant was a disruptive influence in the Bus Depot. As such he could not be continued in employment.  Whether or not another Bus Operator would have made a similar decision is speculation. While severe the Dismissal has to be seen as within “the Band of Employer Reasonableness”.

3:3:3         Overall Context / Behaviours of Both Parties.

The Oral testimony from all Parties was crucial here. The Complainant had an English Language difficulty but was assisted by his wife and an interpreter.

A key witness was Mr. Kleszcz, the Naas Depot Manager who conducted the first Investigation meeting. He presented as a very experienced and competent Manager well used to the challenges of managing a workforce of varying nationalities.  In his Oral evidence he was clearly loyal to his Employer but not without considerable sympathy to his fellow Polish colleague. However, his evidence was that of a very competent Manager which was very persuasive at Adjudication.

From an Adjudication viewpoint the conclusion that had to be arrived at from Mr Kleszcz’s evidence was that, in HR jargon, the Complainant was not, from a personality and attitude point of view a “Good Fit” for the Bus Company. This in itself is not a ground for a Dismissal but the behaviour towards Mr O’S had been completely symptomatic of this worldview. The Complainant, despite any fellow national sympathy from Mr Kleszcz, did not in Mr Kleszcz view, understand the impact his attitudes and behaviours were having on colleagues such as Mr O’S. He showed little interest in changing his approach to colleagues.

It was interesting that Mr P Kavanagh, the Appeals decision maker , again not unsympathetic to the Complainant , arrived at a similar view. He gave extensive oral evidence regarding the Appeal Hearing.

The Complainant in his Oral Testimony, unfortunately played heavily to these views. He was without doubt strongly opinionated and would not be gifted, possible for Language or personality reasons, with a high degree of diplomacy in a work place. He saw little reason to change his approach to colleagues like Mr.O’S.

Overall, from an Adjudication point of view the conclusion has to be that the behaviours of the Complainant contributed significantly to his Dismissal.

3:4         Overall UD Act,1977 Adjudication conclusion.

On Procedural and Natural Justice Grounds (Si 146 of 2000) the Dismissal could at first examination and on technicalities appear Unfair .

However, the only grounds that the Complainant pleaded was the Nationality issue. This was completely unproven. It is not for an Adjudicator to extend the grounds of a complaint to encompass broader issues not pleaded by the Complainant.  Accordingly, the Complaint has to fail – Nationality, the only ground advanced by the Complainant ,in support of his UD Act,1977 claim was not an issue.

In addition, all the Oral testimony pointed to major Complainant contributions to the dismissal. The evidence of Mr Kleszcz being crucial here.

3:5        Employment Equality Act,1998 (EEA ) (CA-00041035-002)

The Nationality discrimination issue was discussed. It was simply unproven and has to be discounted.

Unfair Dismissal, Nationality / Racial Origin discrimination.