Complainant

Respondent

Parties

Marsh  Hurst

Mccann Coach Cab & Minibus Service Ltd

Representatives

  Self

 Self

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-00040482-001

19/10/2020

This is a complaint of alleged unfair dismissal. The Complainant commenced employment on the 1st of January 2013 and gave as the date of dismissal the 8th of July 2020. He was employed by the Respondent as a school bus driver and from the 1st of January 2013 until the 15th of January 2020 his employment was largely uneventful. The change in the employment relationship resulted from an instruction given by a contracting company Bus Éireann that the Complainant was no longer to be employed on any of their school bus services. The rate of pay was given as €250 per week. Dismissal was denied by the Respondent as alternative employment was offered to the Complainant.

On the 15th of January 2020 there was an incident on a bus driven by the Complainant. That incident was described in detail in a statement made to the Employer and later provided by the Employer to Bus Éireann. On the 27th of January 2020 Bus Éireann advised the Respondent that the Complainant was no longer to operate on their school bus services pending the outcome of an investigation. On the 8th of July 2020 the Regional School Transport Manager wrote to the Employer and said:

“Having reviewed all reports, I wish to inform you that Bus Éireann are objecting to the deployment of Mr Hurst as a nominated school bus driver and as such, he is not permitted to drive any services operated on behalf of Bus Éireann whether under contract or on a relief basis in the future.”

From January to March 2020 the Complainant was assigned to a private school bus route and then all services ceased in March 2020 as a consequence of Covid. He was in receipt of Covid related payments from that point. In August 2020 when the schools reopened the Complainant was offered work as a driver but not on the Bus Eireann route. At the hearing, he said that he decided he would spend his time trying to clear his name. Bus Éireann will not provide a copy of the complaint to him and he has no way of defending himself. He took advice from the Legal Aid Board who sought a copy of the complaint against him, but Bus Éireann refused to provide any information to them. He said that if he was accused of murder, he would have had a trial and it was not good enough. He feels that his reputation is damaged and if he went to look for work from another contractor that he could not work on a Bus Éireann route, and this would raise questions as to what had happened. In relation to the child or children involved in the incident in January 2020, he has since learnt that one child has Asperger’s Syndrome. He said he was not qualified to deal with them and that there should have been a minder on that bus. Since then, he has done some research about autism, and he now realises that removing their bag from a child with autism would mean to that child that he was removing their possessions from them. On the day he was trying to have the child sit down and wear a seatbelt and he did not realise the impact of taking the schoolbag from the child.

The date of the alleged dismissal of July 8th is the date of a letter from Bus Eireann saying that he was not to be deployed onto any Bus Eireann school bus services.

The Respondent explained that she got a call from a neighbour whose child travels on the bus and who informed her there had been an incident on the bus. The Respondent contacted the mother of the child who then made an allegation against the driver and said she was going to contact Bus Éireann. The Respondent asked the driver to document what had happened which he did, and she gave that statement to Bus Éireann.

In January she was told by Bus Eireann to remove the Respondent from all Bus Eireaan services which she did and she understood they were to investigate the matter. She had to follow up with Bus Éireann over many weeks to find out what was happening and never received a call and promised return calls were not made by Bus Éireann. She felt the situation was very unfair. In July she was told that they objected to the Complainant driving a Bus Eireann school bus. The Complainant’s solicitor asked for a letter setting out the nature of the allegation but was told that they could not do so, that it was addressed to Bus Éireann.

On July 8th, 2020, she received a letter from Bus Eireann regarding the employment of the Complainant on Bus Eireann services:

‘For the avoidance of doubt, it should be understood that Bus Eireann is under no obligation to conduct an investigation prior to any decision to object to a nominated driver and may require the contractor to immediately withdraw the driver in question irrespective of whether or not it decides to conduct such an investigation.’

And

‘Having reviewed all reports, I wish to inform you that Bus Eireann are objecting to the deployment of Mr Hurst as a nominated school bus driver and as such, he is not permitted to drive any services operated on behalf of Bus Eireann whether under contract or on a relief basis in the future. ‘

In August, when the schools reopened, she offered the Complainant his job back driving on routes not operated for Bus Eireann, but he would not take the job. Asked whether she had concerns about the incident on the 15th of January 2020 as described by the driver, the Respondent said no. The Complainant had never lost his temper in eight years in working as a school bus driver on Bus Éireann runs. The driver who took over from him was concerned that there would be allegations made against him. There were other issues involving the same family previously, but she had no concern that anything serious had happened on the 15th of January 2020. She had checked with other children through their parents and no concerns were expressed to her about the behaviour of the driver on that day. She was told that the child would not sit down and would not wear a seatbelt. There was some allegation of bad language being used, but as far as she was concerned that did not happen. She repeated she had no concerns about the incident on the day.

Rates of pay have increased and there was work for the Complainant on private school runs, but the issue of the rate of pay had not been discussed in August 2020 as it just did not come up for discussion because of what had happened with Bus Éireann and the Complainants issues with their decision and refusal to consider alternative work.

There is absolutely no disagreement between the Complainant and Respondent in this case. They both agree that the treatment of the Complainant by Bus Eireann, their refusal to provide a copy of the complaint against him and to allow him a fair opportunity to clear his name was very unfair. It is notable that there was no discussion between Bus Éireann and the Respondent which might have allowed them to have an alternative view of the situation to be taken into account even if they were not prepared to deal directly with an employee of another company. Allegations of mistreatment of or inappropriate behaviour against children must be taken very seriously but there is nonetheless a right of reply and a right to defend a name and reputation which has been denied to the Complainant in this case.

The principles which arise in this case were examined in Merrigan v Home Counties Cleaning Ireland Ltd - UD904/1984 [Madden and Kerr, 2nd Edition p445]. In that case the contracting company, a hospital, stated that they did not wish to have a cleaner, Mrs Merrigan, on site due to adverse publicity concerning members of her family. The circumstances of that case are different to this current in some regards but the matters which arose were serious in both instances and certain principles apply to both-in particular, the overriding fact of the insistence of the contracting party that a particular person is not employed on their contract.

3In the Merrigan v Home Counties Case, the cleaning company was threatened with the loss of their contract if they did not remove the complainant from the contract in the hospital in question. The determination of the Tribunal was:

“The facts are generally in agreement between the parties and the question to be decided is the validity of the alleged ground to justify dismissal, namely customer pressure on the employer company and whether the employer in response to this pressure properly investigated it to see if there was reasonable grounds for misapprehension by the third party. The job of an employee cannot be at risk on the mere whim of a third party to the employment relationship”.

While there was no direct threat made to the contract with Bus Eireann, it is clear in the current case that the employer did respond to the pressure from the Bus Éireann by removing the Complainant from the school bus run in question. They have continued to accept that pressure by not allowing him to return him to that or any other Bus Éireann school bus run.

There are certain key differences between this case and the precedent case which are crucial to deciding this matter.

The obligation on the Respondent to carry out an investigation into the matters which give rise to an intervention by the contracting company.

Merrigan vs Home Counties on this point:

 While Mr Watkin was aware for some time of drug problem in Mrs Merrigan’s family of which she made no secret, he never investigated if there were grounds for complaint or worry by the hospital, but merely accepted the as immovable the pressure placed on him to dismiss. Indeed, Mr Watkin said in evidence that he felt he was merely carrying out the instructions of the hospital. The difficulty is that Home Counties Cleaning Services Ltd were the employers and not St Michaels Hospital and there was a duty on the employers to carry out a proper evaluation of the situation.

Unlike the employer in the Merrigan v Home Counties Case, the Respondent in this case did conduct her own inquiries and concluded that she had no difficulty with the conduct of her own employee on the 15th of January 2020 and that the incident raised no serious concerns on her part. She forwarded the statement received from the Complainant to Bus Eireann but what status that received is unknown. It follows from her evidence based on her own inquiries, that she found there was no threat posed to the service users by her employee. However, she did not provide that information to Bus Eireann, but neither was she asked for her input into the matter based on her experience, her knowledge of her own employee or any inquiries which she made. The contents of the letter to Respondent from Bus Eireann on July 8th 2020 suggest that her opinion in the matter was of no consequence-they could do what they wished in respect of one of her employees without any justification.  The employer’s position on the matter was effectively given no more importance than that of her employee.

Given that there is no evidence concerning the complaint or the outcome of an investigation and that Bus Éireann neither engaged with the bus company or the bus driver their decision may not be of the level of a ‘whim’, but in the absence of an input from the Respondent Employer or their employee, it is certainly a decision which they made for their own reasons which are not known either to the Complainant or the Respondent. His employer wanted to protect him and allow him a fair process, but he was denied this basic right, not by the Respondent, but by the contracting party. Accepting they have no obligation to deal directly with the employee of the contractor, they could and should have engaged directly with the Respondent as his employer, allowing that employer to conduct inquiries and then allowing the Respondent to have an input into the Bus Eireann investigation of the complaint they had received. Inconclusion on this point, the Respondent in this case is found to have taken the matter seriously, to have conducted her own inquiries and concluded that there was no serious wrongdoing on the part of her own employee. While it can be concluded that she could have been more proactive in conveying a formal position to Bus Eireann and to have instead followed their instructions without any objection, on balance her response was proper in terms of her own employee. Certainly, it was superior to the complete absence of an inquiry by the employer in Merrigan v Home Counties Cleaning which was found wanting by the EAT at that time.

In terms of the claim that the Complainant in this case was dismissed, the crucial distinction to the Merrigan case is the alternative terms offered. Each Complainant was removed from their normal work location i.e., the hospital in one case and the Bus Eireann contract in the other. However, Mrs Merriganwas offered employment at alternative locations some distance away from her home which posed travel difficulties for her, with different  hours of work. When she refused these offers, she was dismissed, and that dismissal was found to be unfair. In the current case the Complainant was immediately offered alternative work as a school bus driver without any loss of income and his terms and conditions remained otherwise unchanged. As a matter of fact, he worked on another school bus run not contracted by Bus Eireann until Covid restrictions intervened. There was no case that the alternative work reduced or altered his terms of employment. Similarly, no such case was made in respect of the terms of employment offered to him in August 2020. The Respondent did not dismiss him. Instead, he chose not to resume work after the service resumed in August because of his overriding concern with his removal from the Bus Eireann contract. As was clarified at the hearing, he was employed by the Respondent as a school bus driver and not solely to work on Bus Eireann school runs. The Employer continued to have confidence in him as a school bus driver and was and is prepared to assign him to other duties on behalf of her company with no diminution or other negative effect on his terms of employment. In the circumstances of this case, I find there was no dismissal and therefore the question of an unfair dismissal does not arise.

Nobody meeting Mr Hurst should underestimate the impact this whole situation has had and continues to have on him. He feels that his entire reputation was destroyed in terms of his dealings with children as a school bus driver even though his own employer has expressed her confidence in him before, in relation to, and since the incident on January 15th, 2020. The Respondent could perhaps have done a bit more in terms of advising Bus Eireann of her own inquiries and the outcome of those inquiries. But in reality, she was given no opportunity to make a case to that Company. She has great sympathy with Mr Hurst and would have happily continued to employ him and on any contract. In all the circumstances the Respondent has no case to answer under the Unfair Dismissals Act 1977 as amended.

CA-00040482-001

As I find there was no dismissal in this case-the complaint brought by Marsh Hunt against McCann Coach Cab and Minibus Services Ltd is not well-founded.

Dismissal