Complainant

Respondent

Parties

Martin Cormican

Blue Line Coaches Ltd T/A Nolan Coaches

Representatives

Self-represented 

Emma Cassidy BL instructed by Setanta Solicitors

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-00042503-001

15/02/2021

The complainant asserts that he was unfairly dismissed from his employment; the respondent denies the claim and asserts that the complainant was dismissed on grounds of gross misconduct.

The respondent outlined that the complainant was lawfully dismissed on grounds of gross misconduct. It asserted that the complainant commenced employment on the 9th July 2016, and not the date in 2014 he stated. He worked 40 hours per week and not the 60 he stated. The respondent submitted that the parties should be anonymised in the publication of this decision.

The General Manager gave evidence under affirmation. He outlined that he started in the role in September 2019. He spoke of the devastation caused by the pandemic in lost bookings. He outlined that the complainant was dismissed on grounds of gross misconduct. The complainant was driving a shuttle service for employees of a named office. The complainant is said to have called one such employee a ‘fat Chinese c***’ and had refused to convey this passenger. The General Manager referred to two statements from drivers attesting to this. Both drivers had since left the company, albeit one had since died.

This incident took place on the 13th September 2020. The General Manager convened a meeting the following day and the complainant admitted using this language. The General Manager referred to the minutes of the meeting. The complainant was dismissed by a respondent director, and this was not appealed. The complainant was paid two weeks of notice pay and the outstanding annual leave.

In respect of the documents, the General Manager said that the inclusion of ‘2022’ on both of the drivers’ statements was an error and they were drafted in 2020. He had typed the minutes of both meetings on the 14th September 2020 and had twice mis-spelled the complainant’s first name. The General Manager said that the minutes provided by the complainant was false and as was his letter of dismissal.

The complainant outlined on affirmation that his employment commenced on the 10th October 2014. It transferred to the respondent company in 2016 and all the time, he drove under the auspices of the new company’s trading name. The complainant was paid €600 per week.

The complainant outlined that during the pandemic, he drove a shuttle service for employees of a named company. He had not noticed that his route for the 13th September 2020 was not the expected one, so he did not collect some passengers on their way to work. He attended the meeting the following day, where the respondent raised his performance and his ‘stupidity’. There was no accusation of the complainant using a racial slur. The complainant denied saying the words attributed to him by the respondent. The complainant obtained new employment in October 2020.

In cross-examination, it was put to the complainant that the letter of dismissal he produced at the hearing was not authentic. The complainant replied that this was signed by the General Manager.

This is a complaint of unfair dismissal.

The first conflict of fact relates to the start date of the complainant’s employment. His evidence under affirmation was that this was the 10th October 2014 and that he transferred to the respondent company in 2016. The evidence of the respondent came from the General Manager, who only commenced his role in September 2019. I, therefore, find as fact that the complainant’s employment commenced on the 10th October 2014.

The second and most significant conflict in evidence is whether the complainant used the racial slur to a customer attributed to him by the respondent. He denies that this occurred at all. I find that the allegation made against the complainant is false and not substantiated.

I base this finding on the complainant’s evidence given under affirmation. Second, I note that the surviving witness who apparently says he heard the complainant uttering these words was not present to give evidence. Third, I note the discrepancy in the years cited in the statements which significantly questions the credibility of both documents. The statements record that they were made on the 14th September 2022, and not 2020 when they are said to have been given. It is unlikely that a statement made in 2020 would wrongly post-date the year of the statement by two years. It is much more likely that the documents were actually prepared in 2022, and this year inserted out of habit. This suggests that the statements were used to add some documentary ballast to the false assertion that the complainant used a racial slur.

I find as fact that the complainant mis-read his work docket for the 13th September 2020, thereby omitting to collect passengers on their way to work. This error is not gross misconduct and nor was it grounds for the complainant to be dismissed. It follows that the complainant was unfairly dismissed.

The complainant has sought an order of compensation.

I note that the definition of ‘financial loss’ in section 7 provides: ‘… any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.’

The complainant found employment quickly, starting his new role on the 12th October 2020. He was paid two weeks of notice pay. I award the complainant two weeks of pay (€1,200), being the shortfall up to when he started new employment, taking account of the notice pay he received. The complainant is also entitled to ‘the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973’. This is calculated per the 10th October 2014 and the 14th September 2020 as the relevant dates and €600 as his weekly wage. There are no breaks in service and no contribution from the complainant to his dismissal. It is just and equitable that the complainant be compensated in full for the loss of the accrued service. This is €7,728.

The respondent shall pay to the complainant the sum of €1,200 and €7,728, which is €8,928.

CA-00042503-001

For the reasons set out above, I decide that the complainant was unfairly dismissed from his employment and the respondent shall pay to the complainant compensation of €8,928.

Unfair Dismissals Act / gross misconduct / section 7 ‘financial loss’