Complainant

Respondent

Parties

Simon  Logue

Boyce Coach Travel Limited

Representatives

Complainant

Kelda Doherty BL

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-00033896-001

20/01/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00033896-002

20/01/2020

The complainant worked as a bus driver for the respondent. He was dismissed following a complaint by a client of the respondent for leaving the bus and some passengers unattended while he cut branches on the property of a service use which were causing an obstruction.

Mr Simon Logue (the complainant) was employed by Boyce Coach Travel Ltd (the respondent} as a bus driver to carry out a local service contracted between the Respondent and SITT, (a rural transport body) transporting physically challenged adults to and from day services. In late August a new client was added to the service. Getting in and out of the entrance to the new client’s home was proving difficult due to an overgrown tree. This was discussed with the respondent who advised to get permission from the owner to cut the tree. In early September, the complainant sought permission from the property owner and service users mother, who agreed that it was ok for the complainant to cut back the branches to enable ease of access and avoid damage to the bus. On the afternoon run that same day, the complainant returned the service user to his home parking the bus adjacent to the tree.  At this stage only two service users remained on the bus in addition to the travel escort. The complainant parked the bus, engaging the handbrake and removed the key from the ignition. The complainant removed a hand saw which was secured in a concealed compartment on the driver’s side. This could not be accessed by any other person on the bus. While the complainant cut back the branches, he had full view of the two service users on the bus. The complainant was no further than ten feet from the bus. When he finished he left the branches in a neat pile to one side.

 On 11th November 2019, a member of SITT interviewed the travel escort who had been in the bus at the time of the tree cutting incident. The travel escort was asked to sign a statement and told not to discuss the matter with the complainant.  However, having become aware of this meeting, the complainant called in to the office of the Respondent and told Mr Peter Boyce, the owner,  about this meeting. The Respondent stated that SITT manager had called into the office that same afternoon and requested that the Respondent ask the complainant for a report of the events on the day of the branch cutting. Mr Boyce asked the complainant to pen a brief report of events and sign it so that SITT could take it back to the HSE, as the family of the service user had made a complaint to the HSE and they wanted a dedicated taxi for their son from SITT. At this stage, the exact nature of the complaint had not been given or explained to the complainant. The complainant was not made aware that a serious allegation had been made against him.

 On 12th November 2019 at 7:30am, the complainant went to the office of the respondent before commencing the bus run and handed his report of events (dated 11th November 2019) to the respondent’s brother.    On 19th November 2019, the Respondent contacted the complainant by telephone requesting the complainant to call into the office that evening as he wanted to speak to the him in person. The complainant was unable to meet that evening due to a family commitment. The respondent stated that he would call up to the complainant’s home address after the morning run the following day.  On 20th November 2019, the respondent called to the complainant’s house to deliver a verbal dismissal. The respondent showed the complainant a photocopy of a letter dated 13th November 2019 from SITT. This letter clearly states that there was a complaint of a serious nature and accused the complainant of interfering with a service users’ property, inferring that the complainant did not have permission. The letter requested that the complainant be removed from the run without delay.  This was the first time the complainant was made aware of the allegation made against him which was serious and of a criminal nature. The complainant asked the respondent to speak with SITT to explain that he had done nothing wrong. The respondent said, “it is nothing to do with me, you need to get on to SITT, my hands are tied. I have to let you go this Friday” (22nd November 2019). The respondent advised the complainant that he had no other work for him and signed a statement to this effect dated 24th February 2020.

 On 20th and 28th November 2019, the complainant emailed the respondent requesting a written explanation of reasons for dismissal. A vague response was provided by the Respondent in a letter dated 24th January 2020 stating that the reason was, “due to following disciplinary procedures”.

On 22nd November 2019, the complainant completed his final bus run. He met with the respondent to again voice his concerns about the way the respondent had held no investigation into the alleged complaint and that he was very unhappy with the way he had been dismissed following his loyalty as an employee. 

The complainant was not afforded due process in this dismissal and this was not investigated by the respondent. The complainant was never involved in a formal investigation. SITT allegedly carried out an investigation. This was bias as the complainant was not involved or notified and SITT had taken the word of the service user’s father without affording the complainant the opportunity to be represented and question the accuser. 

The complainant was never given any written or verbal warnings throughout his employment with the respondent. 

The respondent failed to provide a written code of grievance/disciplinary procedures at any time.

The respondent failed to provide the complainant with a Contract of Employment.

On 15th May 2020, the complainant attempted to clear his name by raising an issue with the HSE to seek an answer as to how this was investigated by SITT .          On 29th June 2020, the HSE responded by stating that the matter was between the complainant and his employer and they would not comment or take any action in relation to this situation.

The complainant started employment with the respondent in November 2018 when the respondent tendered successfully for the SITT service.  He was already driving this run before the respondent got the contract.  It was believed that he had already received his Terms and Conditions of employment from the previous employer.

The respondent received a complaint from the SITT service that a service user’s parents had alleged that the complainant had cut branches on their property, while leaving students on the bus alone for 10 minutes.  As a result, the parents were demanding that their son no longer travel on the transport provided with the respondent’s driver.  Mr Peter Boyce on behalf of the respondent then met with the complainant and requested a report form him regarding what occurred.  The complainant alleged that the owner of the property verbally agreed that it was okay for him to cut back branches causing an obstruction.  He admitted he cut the branches and that the bus was left without the driver and the Care Assistant for some minutes.  This information was passed to SITT.

By letter dated 13th Nov 2019 the respondent was required by the contractor to change the driver on the route without delay as it was concluded that the complainant had acted outside of the terms of the contract.  This was followed up by an email on 19th Nov, directing the respondent to resolve the matter.  Mr Boyce met the complainant on 20th Nov to explain the position and he was informed of the decision to terminate his employment from 22nd Nov.  The respondent discussed with the complainant the possibility of him doing other work but no suitable work for which he was qualified was available.  The complainant was informed that if he did receive a taxi licence the respondent would consider employing him in a self-employed capacity to use the company’s taxi but the complainant never came back to the respondent on this issue.

CA-00033896-001. Complaint under the Unfair Dismissals Act, 1977

Dismissal as a fact is not in dispute in this case and therefore it is for the respondent to establish that in the circumstances the dismissal was fair. In this case the conduct of the complainant is not disputed and therefore, the question to be considered is whether or not the respondent acted in a reasonable manner in coming to the decision to dismiss.  There are two aspects which are necessary to consider; firstly, the appropriateness of the procedures used and; secondly, the proportionality of the decision to dismiss.

From the evidence given it is clear that the respondent saw no distinction between his investigation of the issue and the disciplinary process and therefore they were effectively one and the same. In this regard, s 6(7)(b) of the Unfair Dismissals Act 1977 provides that, “in determining whether a dismissal is an unfair dismissal, an adjudication officer or the Labour Court, as the case may be, may have regard to the extent (if any) of the compliance or failure to comply by the employer with their own disciplinary procedure or the provisions of the Code of Practice on Grievance and Disciplinary Procedures”. 

Procedures used must comply with the general principles of natural justice and fair procedures which include:

That employee grievances are fairly examined and processed,

That details of any allegations or complaints are put to the employee concerned,

That the employee concerned is given the opportunity to respond fully to any such allegations or complaints,

That the employee concerned is given the opportunity to avail of the right to be represented during the procedure,

That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

It is clear from the evidence given that the complainant was not notified in writing of the alleged subject of the disciplinary process, and that he was not offered an opportunity to be represented during the procedure.  It is also of note that no attempt was made to speak to the mother of the service use who, according to the complainant, was the person who gave permission to him to cut the branches.

The procedures used therefore were not at the required standard.

Notwithstanding the absence of appropriate procedures there can be occasions when the gross misconduct complained of may be such that it is evident that the outcome would inevitably have led to dismissal and this may overcome procedural deficiencies.  I therefore need to consider the reasonableness and proportionality of the decision to dismiss. In Bank of Ireland v Reilly[2015] IEHC 241, Noonan J. noted that s6(7) of the Act makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However,

“that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

The involvement of a third party in the decision to dismiss can raise complications.  In this instance it is difficult to understand how the contracting organisation considered the absence of the travel escort (employed by them and responsible for the care of the children on the bus) to be deserving of a 3 day suspension and yet insisted on the permanent removal of the bus driver. While the cutting of branches, the property of a service user, was a major influence on the demands of the contracting body that he be removed, the respondent was clear in his evidence it was the absence of the complainant from the bus that was the more serious transgression.

The complainant’s evidence throughout the hearing was clear, consistent and persuasive.  I accept that he spoke with the service user’s mother before cutting the trees and it is noteworthy that the respondent did not speak directly to this person before reaching his conclusions.  It is also clear that the complainant, in cutting back the trees, was protecting his employer’s property and, whether or not the respondent was aware that he was going to do this, it is extraordinary that this action could be considered to justify a dismissal.  The respondent himself has stressed that it was the absence from the bus that was the principal issue.  However, in evidence the respondent was unable to say how many children were on the bus at the time and seems to have ignored the fact that there was a person specifically employed to escort the children while on the bus and this person was not under the control of the complainant.  The respondent also emphasised in his evidence that his decision to dismiss was unrelated to the views of the contracting body on the matter but rather was due to the fact that he could no longer trust the complainant.   I note that the respondent did offer to reemploy the complainant as a taxi driver, which is inconsistent with his statement that he had lost all trust in the complainant.

Having considered all of the evidence I believe that the complainant was acting out of health and safety considerations when he removed obstacles interfering with the passage of the bus and that this should not have given rise to any disciplinary issue.

I do not consider that the absence of the bus driver (the complainant) for 10 minutes carrying out the above work could reasonably give rise to a decision to dismiss particularly as a similar absence by the travel escort/care assistant was deemed to be worthy of a 3 day suspension, albeit by a different employer.

Based on the above I conclude that the complainant was not afforded appropriate procedures during the disciplinary process and, in addition, that the decision to dismiss was disproportionate.  I therefore find that the dismissal was unfair.

The complainant was dismissed on 22nd November 2019.  He commenced full time employment in November 2021.  He had no work from November 2019 until June 2020 and thereafter had limited part time jobs before taking up the latter position. The complainant gave evidence that he applied for other positions after being dismissed. I determine that compensation of €15600, equivalent to one year’s salary, is just and equitable in all the circumstances.

CA-00033896-002. Terms of Employment (Information) Act, 1994

The respondent has confirmed that the complainant was not given a copy of the terms of his employment as required by the Act and therefore this complaint is well founded.

I find that the complainant was unfairly dismissed and I order the respondent to pay the complainant the sum of €15,600 in compensation.

I find that the complaint under the Terms of Employment (Information) Act, 1994 is well founded and I order the respondent to pay the complainant the sum of €200 in compensation.

Unfair dismissal.  Reasonableness of the decision to dismiss.  Deficiency of disciplinary procedures