Complainant

Respondent

Parties

Mark  O'Mara

Bus Eireann

Representatives

Thomas O'Connor National Bus & Rail Union

 John Sheridan HR Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00040692-001

29/10/2020

The claimant was employed as a seasonal driver with the respondent from the 3rd.May 2019 – 21st.March 2020. He had an aggregate service of 5 years of seasonal employment – the seasons extended from May – October each year. The claimant was unsuccessful in his application for a permanent position  and it was contended by the union that the claimant was denied his rights to respond to alleged performance deficits because he was not afforded   the protection of agreed disciplinary procedures by virtue of his status as a fixed term employee ; the company were in breach of the Act by treating him less favourably than a permanent driver – ultimately leading to his lack of success when he competed for a post in July 2020. The respondent denied any breach of the Act and contended that the claimant was unsuccessful for reasons other than his status as a fixed term employee.

It was submitted by the union that the claimant was treated less favourably to a comparable full time employee “ by virtue of the fact that his failure to secure a probationary contract was based upon allegations against him that were never progressed through the agreed Disciplinary and In House procedures. It was submitted that following the claimant’s commencement of employment  several fulltime/ permanent positions became available – it was contended that arising from a collective agreement between the parties  on seniority  in 2015, the claimant was the third most senior driver  and should have been  offered a position  but was unsuccessful. When the matter was raised with HR, the respondent advised that “although length of service was not a determining factor, their overall service was of course taken into consideration. One applicant, although with a lightly longer service than another selected had in fact 5 accidents on record and 2 customer complaints which understandably did not position him well for selection”. The union asserted that the alleged accidents and customer complaints were never processed through the agreed procedures and that the claimant “ was not afforded the most fundamental of Employment Law rights pursuant to in Haughey [1971] , the WRC Code of Practise , constitutional law or even the agreed Bus Eireann procedures”.

It was submitted that the claimant was not advised of the charges against him , was not afforded the opportunity to challenge the allegations , that he was not given a copy of the charges / allegations and was unable to mount a defence while the allegations were used as a basis to deny the claimant the opportunity of full time permanent employment. It was contended that comparable fulltime/permanent employees had the protection of the agreed Disciplinary /Grievance procedures and that the claimant was treated less favourably as the allegations were used as a basis for not offering him a permanent contract.

It was submitted that the claimant’s length of service was not considered and should have been – the alleged 5 accidents were not the subject of the agreed procedures between the parties. It was submitted that if the claimant had been given an opportunity to respond to the allegations he could have offered compelling explanations that would have resulted in at least 4 of the 5 allegations being wiped out.It was advanced that if any of the incidents had been deemed to be serious the claimant would have been brought in by management to answer for them.

In response to the respondent’s assertion to the effect that the union had failed to nominate a comparable employee, the union nominated Mr.X  who operated from a Western base. It was submitted that both the claimant and Mr.X perform identical work with the only difference between them being that the comparator was full time  permanent and the claimant was seasonal /fixed term.The comparator was a member of the union and there were no GDPR issues arising .The comparator had been represented by the union at a disciplinary hearing in July 2020 and had to respond to a series of allegations – it was submitted that most of the allegations were dismissed because of “ argument , reasonable explanation  and lack of evidence”. The outcome of the process was a warning – described by the union as the lowest form of sanction – it had a duration of 9 months and was currently under appeal.It was contended that if the claimant had been afforded the same agreed procedure which applied to full time/ permanent staff and been afforded the right of representation and being appraised of the allegation against  him  , the outcome could have been different for the claimant and could have resulted in  a similar finding of a minor sanction and ultimately being successful in his July 2020 application. It was advanced that in denying the claimant the same opportunity as the comparator to clear his name and record , the respondent had treated the claimant in a less favourable manner to a permanent worker.

In response to a request for clarification from the WRC on the alleged date of discriminatory treatment , the union asserted that the alleged contravention occurred on the 10th.Sept.2020 when the union was advised that the Selection Panel had taken account of  the matter of “ 5 accidents on record and 2 customer complaints which understandably did not position him well for selection”.

The respondent rejected the complaint  and set out their policy on the recruitment and selection of temporary staff on fixed term contracts. It was advised that a number of such staff return in successive years and that the recruitment process applied in these situations included a number of stages including interview , driving assessment and medical. It was submitted that the process is managed by trained HR professionals  and that successful candidates are chosen on suitability. It was advanced that interviews were conducted in a fair and transparent manner.

The respondent set out the chronology of the recruitment process that applied in the instant case and stated that evaluation was solely  based on the following criteria – cash management , customer care , safety and attendance. It was submitted that the outcome of the  claimant’s interview was scored  and evaluated against other candidates and the claimant was unsuccessful. The respondent set out the accidents and complaints recorded on the claimant’s file.

It was submitted that successful candidates are always chosen on suitability following interview and driving assessment.

The respondent confirmed that the comparator nominated by the union was a permanent staff member and confirmed  that he had been the subject of an investigation in July 2020.

The respondent submitted that the following catalogue of accidents in the Northwest supported the respondent’s contention that the claimant was treated no differently to other members of staff and no less favourably to permanent colleagues. The information submitted covered the period 13.05.2019 – 21.03.2020 the period when the claimant was working for the company.

“60 recorded accidents in the Northwest between the above dates.

43 accidents deemed preventable  - driver at fault. Of the 43 preventable accidents , 15 were investigated and 28 were not.

Of the 15 accidents investigated , 8 involved appointed drivers while 7 involved temporary drivers. Of the 15 accidents not investigated , 12 involved appointed drivers , while 16 involved temporary drivers.

The above information is further evidence that the claimant was treated no differently to other members of staff.”

It was submitted that the comparator identified by the union was not an appropriate comparator as he operated from a different depot which had a different staffing structure.It was advanced that while  the same terms and conditions applied to both drivers   , the union  were not comparing like with like  as the Western Depot owing to staffing levels had a greater capacity to undertake an investigation

 It was submitted that in the first instance the driver will complete who is at fault in an accident in the report form and that is signed off on by the Depot Supervisor. It was submitted that some drivers admit they were at fault and a decision on the matter going further will be taken by the Services Manager.

It was acknowledged by the respondent that the company needed to review their existing policies and procedures to ensure they were compatible with developing protective legislation at national and EU level.

On the preliminary matter of time limits, the respondent has not offered any comment re the complaint being out of time – the union for their part have submitted that the contravention arose when the claimant submitted for interview and selection in September 2020  and was unsuccessful. The complaint was received by the WRC on the 29th.Oct.2020.On the basis of the submissions made by the union, I accept the complaint crystallized at the time of the recruitment process and consequently I find the complaint to be in time.

 With respect to the matter of locus standi under the Act and the claimant’s continuity of service ,  in PT16590/03/MR , the Labour Court  addressed the matter of continuity of service and stated that “ the question of whether the periods between the expiry of one contract and the commencement of another were periods of lay-off , and whether such periods break continuity of employment , is covered in the Protection of Employees (Fixed Term Workers )Act 2003 , which the Court is satisfied can be construed as in pari materia with the 2001 Act , as they both form part of the same legislative scheme.The Court went on to determine that  the period each year during which the complainant was not employed “ can only be described as a period of lay off”.

While much of the attention of the parties was focused on the 2015 agreement which remains in dispute I do not accept that this is germane to the complaint before me under the Fixed Term Act.

The parties were in dispute as to whether seniority applied in the selection process  with the union arguing that it applied through custom and practise and the respondent denying that there was any such practise in place .Selection it was argued by the respondent was based entirely on suitability. It was advanced by the respondent that seniority only kicks in with respect to permanent staff and that 2015 Agreement which was currently in dispute had no application to the instant case. The union maintained that the company brought back drivers on the basis of seniority and argued that former drivers were brought back on seniority through custom and practise. The respondent contended that drivers were brought back on suitability and that the fact that the claimant had 5 accidents over a 10 month period was sufficient to raise a  concern about the claimant. It was further contended that the claimant had accepted responsibility for 2 of his accidents. According to the union , each accident had its own peculiarities and the report form did not provide for a detailed analysis of an accident. The issue according to the union was that the claimant was not afforded the same process to defend his performance as was afforded to his permanent comparator.

The respondent contended that as an employer they had to be in a position to use information about past performances. The union asserted that they were confident that if the claimant had been given the same opportunity as his comparator, his performance would not have been held against him as he would have had an opportunity to defend his performance. The employer stated in response that this would not mean the claimant would have been successful and that it was untenable for the union to suggest the employer would discount accidents. It was contended by the employer that by accepting responsibility for 2 of his accidents , the claimant had accepted that his driving was impaired. The union asserted that if the accidents had been examined in detail – as had happened with the comparator – the accidents would have been found to be minor in nature. Much of the focus of the submissions was on industrial relations disputes as opposed to an alleged breach of a statutory entitlement .

Ultimately,  the union is asserting that by denying the claimant the protection of the disciplinary policy , the claimant is being treated less favourably than a comparable permanent driver who had his rights observed in accordance with  the Company disciplinary policy.

Section 5 of the Act defines a comparable permanent employee as follows :

While I note that the respondent has argued that the union’s nominee was not an appropriate comparator  because he operated from a different depot with a more generous staff structure and a greater  capacity to undertake investigations , on the basis of the evidence presented by both parties ,  I am satisfied that the comparator nominated by the union meets the definition of a comparable permanent employee. Section 6 of the Act prescribes that a fixed term employee , shall not in respect of his or her conditions of employment , be treated in a less favourable manner than a comparable permanent employee. While I note that the respondent’s has presented aggregate figures in relation to the number of investigations conducted it appears that the carrying out of investigations into accidents  is somewhat adhoc – it is evident  from the figures presented by the respondent that  fewer temporary drivers than permanent drivers were the subject of investigation and that  of the 15 accidents not investigated , more temporary drivers fell into that non investigation category than permanent drivers. Having said that , I accept the union’s contention that every accident has its own peculiarities and it is difficult to draw universal conclusions from a bald set of figures without further details.

Ultimately , the union’s assertion is that the claimant could potentially have been exonerated if like his permanent comparator , the accidents and complaints made against him were investigated and he was afforded  a right of reply .On the basis of the submissions made , I have concluded that no compelling objective grounds were advanced by the respondent for the difference in treatment between the claimant and his comparator. While the respondent referenced the difference in resources between the Western and North Western regions – with greater capacity to conduct investigations in the Western area where the comparator is based , no objective  justification was advanced by the respondent  for the difference in treatment between the claimant and his comparator – in this regard I note that while the company procedure does in fact provide for the application of a formal investigatory process in cases of” incidents of sufficient gravity”  I find that  objective grounds – unrelated to the claimant’s status  as a fixed term worker - were  not advanced for failing to apply this procedure to the claimant. I am satisfied that the process for examining performance deficits , incidents of gravity as well as  complaints from passengers is a condition of employment. I am satisfied that the claimant was treated less favourably than his comparator in relation to his conditions of employment  by denying him a similar investigatory process to that afforded to his permanent colleague in the context of performance deficits and passenger complaints and accordingly I am upholding the complaint.

While I acknowledge the respondent’s contention that even if the disciplinary procedure had applied to the claimant , he may not have been successful in his application for the permanent panel I am satisfied that the company were in breach of the Act and that this breach potentially  adversely affected the claimant’s prospects  of securing a position on the permanent panel.

In  all of the circumstances I find the most appropriate remedy to be one of compensation -  I require the respondent to pay the claimant €7,956 compensation ( 12 weeks pay) for this breach of the Act.

Seasonal Worker – less favourable conditions