Complainant

Respondent

Parties

Kevin  Walsh

City Direct Limited

Representatives

Gary English

Ruth McDonagh M.G. Ryan & Co. Solicitors

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-00042563-001

17/02/2021

The complainant was employed by the respondent as a bus driver up until the date of termination of his employment on the 25th November 2020.  He alleged that he was unfairly dismissed by the respondent.

The respondent is a private transport service.  The respondent disputed the start date of employment and argued that the complaint was out of time.  In addition the respondent denied the allegations.

The Substantive Issue:

The respondent did not provide a formal submission in relation to the complaint but provided a number of documents as follows:

·       Letter dated 19th November 2019 from Mr MC to Mr JMcD in relation to the potential employment of the complainant

·       Copy of contract of employment between the complainant and the respondent

·       Copy of letter of 20th November 2020 to the complainant regarding the outcome of the appeal of his dismissal

·       Copy of letter of 6th April 2021 to the Workplace Relations Commission confirming the respondent understanding of the dates of employment of the complainant

Witness Evidence – Mr McD

Mr McD confirmed that he first became aware of the issue regarding the accident that had occurred on the 4th September when he was contacted by two different people in relation to the crash.  He stated that the complainant had been brought back to the depot and that there were passengers left on board the bus.  He stated that when he was first advised of the crash, he thought it was “just a tip” and that he did not realise the seriousness of the accident.  He stated that the complainant was driving and had crashed into a parked lorry (HGV).  He advised that the front window was smashed and the door was broken and that passengers had to be let out of the emergency door.  He stated that approximately three days later he reviewed the CCTV footage and he realised he needed to investigate the matter.  He stated that there were three cameras on the bus and that there were a number of clips that were relevant to the issue.  He stated that camera 2 showed that on the 4th September, the bus mounted the kerb on one occasion and that on a second occasion it mounted the footpath, that the complainant failed to slow at a yield sign, that he did not stop at a stop sign at the bridge, that he clipped the kerb and that he then ran a red light and ultimately then he had a collision with the parked HGV.  He stated that having reviewed the footage, he concluded that the complainant was not fit to be driving on that day.  He confirmed that some customers on the day were in a position to walk away to their destination but that others had to be put on an alternative bus.  He confirmed that the Gardaí had attended the scene on the day and that they complainant had talked to them.  He stated that later the Gardaí had contacted him regarding the accident.  He further confirmed that customers had phoned in and complained and described the complainant as being “all over the place”.  He stated that specifically he had received a complaint from Ms AK who stated that the complainant had driven unusually fast over speed bumps and that she had confirmed this by email.  Ms K stated that as a consequence her daughter Ms HK had sustained concussion. 

Mr McD confirmed that he spoke to the complainant on the 5th September, when he came into the office and that he had texted him on the day of the accident but had not wanted to bother him once he had gone home.  He confirmed that further to that informal discussion he had sent an email to the complainant on Friday the 11th September and had placed him off duty with pay, pending an investigation.  He confirmed that on Monday the 21st September the complainant advised him that he did not want to return to work, that he had made that statement of his own free will and he (Mr. McD) recognised that the Complainant might be in shock after the accident.  He stated that the complainant advised that customers were making false allegations against him.  He stated that the complainant came to the office with his laptop and used the facilities in the office to upload the CCTV footage and that he gave him the footage on a USB key, that he took them away and he believed that he did not review them at the office. 

Mr McD advised that the complainant did not accept allegations in relation to his driving, however he did say that he was taking sleeping tablets, that he had told another driver that he had been taking sleeping tablets the night before and he had said that he was finding it hard to sleep the night before.  Mr McD confirmed that when he put that to him at the meeting, the complainant said that he did not know what he was talking about.  The complainant advised Mr McD that he was taking arthritis medication.  Mr McD confirmed that the complainant had been involved in a previous accident where a woman had opened the door but he confirmed that it had been established that there was no wrongdoing on the part of the complainant on that occasion.  Mr McD confirmed that by the 5th October he had concluded his investigation and he set out the findings and that as far as he was aware, the complainant had the CCTV footage of the incident on the 4th September. 

Mr McD confirmed that a disciplinary meeting was held on the 19th October and following which a letter was issued confirming the termination of employment.  Mr McD confirmed that an appeal hearing was held on the 12th November and that the decision of the appeal was issued to the complainant on the 20th November and that decision upheld the decision to terminate the employment.

Cross Examination of Mr McD:

Mr McD was asked to confirm when he first became aware of the accident and he confirmed that it was on the 4th September at around 10:00am.  In response to a question as to whether he had contacted the complainant on the day, he advised that he had texted the complainant on that day but had decided to leave him alone once he was aware that he had safely gone home.  He confirmed that he then contacted him the next day.  The complainant representative put it to Mr McD that he had said to him on that phone call that it would be best if he resigned and that if he did not, the respondent would send the guards and he asked if that was the case.  The respondent stated that that was not the case.  The complainant representative put it to him that the complainants’ daughter was present during that conversation and could give evidence in relation to the matter but Mr McD confirmed again that it did not happen. 

The complainant representative asked Mr McD if he had thought to check how the complainant was and Mr McD confirmed that he had done so.  He also confirmed that he had explained that an investigation would be conducted and he explained the process and that he had done so because the complainant had asked him what would happen next.  The complainant representative put it to Mr McD that the complainant had asked to bring him as a representative to that investigation and he had been told no, that he could not have his representative present.  The complainant representative put it to Mr McD that he had badgered the complainant at the investigation meeting when he had asked him on seven different occasions about the medication he had taken the night before.  Mr McD confirmed that he did not recall asking about the medication on seven occasions.  Both parties agreed that the minutes would reflect the reality of the situation.

The complainant representative asked Mr McD to confirm if the Gardaí had attended his office to look for CCTV and Mr McD confirmed that that was the case.  The complainant representative put it to Mr McD that the Gardaí’s document to the respondent stated “further to your query” and he put it to Mr McD that he had actually gone to the Gardaí to raise the complaint.  Mr McD confirmed that he had to establish the name of the Guard or Guards who had attended the scene of the accident for insurance purposes and that this was standard practice.  The complainant representative put it to Mr McD that he had provided no witnesses to the accident, that he had provided no signed statements from witnesses and that the Gardaí had not prosecuted.  The complainant representative also put it to Mr McD that he was not a qualified medical person and had he made any efforts to ensure that the complainant was seen by a doctor after the accident.  Mr McD confirmed that he had not made arrangements for the complainant to see a doctor, that he would have done so but that the complainant wanted to go home.  The complainant representative queried if the complainant had been offered a lift home and Mr McD confirmed that he had. 

The complainant representative asked Mr McD if he recalled the previous accident and Mr McD confirmed that he did recall, though he was not sure of the exact timeline.  The complainant representative put it to Mr McD that the complainant had requested some holiday leave and Mr McD advised that there was no request documented.  The complainant representative put it to Mr McD that the request for holiday leave had been a verbal request and Mr McD confirmed that he did not recall a request for leave.  The complainant representative drew Mr McD’s attention to the allegation that the complainant had clipped the kerb while driving and he stated that when looking down in the video footage it was clear that the kerb was still there, that no damage had been done and he asked Mr McD if he had a qualification in road collision and Mr McD responded that the incidents that happened were simply facts, that it did not require a collision expert, and that it was merely his opinion what had occurred on the day, based on the CCTV evidence.  The complainant representative put it to Mr D that he had written to raise concern that the complainant was never going to get a fair hearing and he asked him if he had made the decision to dismiss the complainant prior to the investigation and Mr McD confirmed that no, he had not made such a decision.

The Substantive Case

Witness Evidence – The Complainant:

The complainant representative asked the complainant to talk through the accident as shown on the video recording.  The complainant stated that he went into work, that he met his colleague Paul, that he left on the bus, that he did not mount any kerbs, that he was not feeling too good on the day, that it was the year anniversary of his wife’s death and that in fact his first customer had commented that he was not his usual cheery self.  He stated that he realised he had missed a red light at a particular junction and that he did see the second red light in time to stop.  He said that on that occasion he did not see the truck on time and that he turned the steering and had not turned it far enough and that he heard the bang.  He stated that he rang the company, that he got the people off the bus, that he enquired that all passengers were okay and the Guards arrived and took their names and addresses.  He stated that he thought the mechanic came to collect the bus but found out afterwards that someone else had.  He stated that he went home and went to bed for the day.  He stated that the next morning he got a phone call from Mr McD and that Mr McD said to him that he would make it difficult for him if he did not resign.  His representative asked him if he had received the information in relation to the accident at a later date and the complainant confirmed that he had, that the first time he went into the office he was given the information and that he denied everything.  The complainant representative asked him if he had requested leave a week after the first incident and he said, yes, that he was very shaken by the accident and that he had to ask another customer to look to see if the woman had actually been killed when she stepped off the bus and he said he had commented to colleagues that he was having difficulty sleeping.

In relation to the investigation the complainant representative asked the complainant if he had requested his presence at the investigation meeting.  The complainant confirmed that he had but that he was told that only internal people would attend.  In relation to the CCTV footage, the complainant said that in his view it was obvious that he did not mount the kerb on three occasions.  He confirmed that he had broken a red light and that was clear on the footage but that the two sets of red lights were very close to each other and that he had not gone through the second set of red lights.  He stated that it was difficult to see the first set because the second set was so close.  He said that on the day in question his head was not “really in the game” and that he realised too late, but that there was nothing coming so he stayed going and stopped at the next light which was very close by.  The complainant representative asked the complainant if he had asked to have Ms RW present as a witness at the appeal hearing and the complainant confirmed that he had asked for her to be interviewed but that the investigating manager Mr W would not entertain it.  The complainant confirmed that he was called to a disciplinary meeting on the 19th October and that he received a termination of employment letter on the 22nd October. 

The complainant representative asked him if he had thought it would take longer to give due consideration to the points made by him at the disciplinary meeting and the complainant confirmed that yes, he had expected that there would have been more time but that in his opinion, when somebody had already made up their mind, it was made up.  The complainant representative asked the complainant if he was offered any retraining and he confirmed that no, he was not offered any.  The complainant representative asked the complainant if he was offered any support in relation to return to work and the complainant again said that no, he was not offered any support.  The complainant representative asked if he was offered any medical assistance in relation to either of the two incidents and the complainant said that no, he was just advised that the Guards were going to be called. 

The complainant representative asked the complainant if the Guards had been in touch and if they had, what had they said.  The complainant stated that the Guards had attended on the day of the incident, that they asked what had happened, that they took details and they asked him if he needed to go to the hospital.  The complainant representative asked the complainant if the Guards had suggested that he take a drug or an alcohol test and the complainant confirmed that no, they had not.  The complainant representative asked if the Gardaí had commented at all on his ability to be in control of a vehicle and the complainant said that no, they had not.  The complainant representative asked the complainant if he had received any contact from management on the day and he said that he had received a text message on the day but that no other member of management had contacted him outside of that.  The complainant representative asked him what did he think would have been the outcome of the second accident and the complainant said that he believed his employment would be terminated.

Cross examination of the complainant:

Mr McD asked the complainant if he had brought any witnesses or proposed any witnesses to the investigation and the complainant said that no, he had not.  He stated that he had requested that Ms RW would be interviewed but that he was not clear on the response but he understood he was not allowed to bring her as a witness.  He stated that in relation to the overall investigation he felt he had been treated very badly, that it was a witch hunt and that the respondent was trying to find anything to get rid of him.  Mr McD asked the complainant about his route on the morning of the accident and the complainant confirmed that it was his regular route, that he was the only one who had a regular route and that he did it a lot.  Mr McD put it to him that despite that he mounted the kerb and the complainant said that yes, he had mounted the kerb.  Mr McD put it to him that on the cctv footage it can be clearly seen that the bus raises up and comes back down again, and “if you are turning the bus goes up and down” and the complainant confirmed that that was the case.  Mr McD put it to him that a number of customers had given evidence and had made contact in relation to his driving about mounting the kerb and about driving over speed bumps at high speed and Mr McD put it to him that it was important to keep within the limit.  The complainant said that he was aware that he had gone over some of the speed bumps too fast but that he was not aware that he had clipped the kerbs.  Mr McD asked the complainant if he had seen the statement from Ms AK, who was a passenger, in relation to his driving that day, where she said that he had driven down the road exceptionally fast and the complainant confirmed that he had seen that complaint.  Mr McD asked him if he accepted what Ms AK said and the complainant responded that he did not accept that he clipped the kerbs or drove too fast and that every individual has their own opinion.  Mr McD put it to the complainant that all the customers who complained about his driving, all had the same opinion and the complainant responded that however only one person wrote it, that all other complaints were not in writing and that he would not answer such complaints as they were merely hearsay, and he confirmed again that he did not agree with Ms AK’s assessment of what happened. 

Mr McD posed the question to the complainant why would Ms K make up such a story and the complainant responded that he did not say that she had made it up, he had said it was her opinion of what happened but that he was satisfied he was under the speed limit.  Mr McD put it to the complainant that he had broken the red light and the complainant confirmed that yes he had broken a red light.  Mr McD put it to the complainant that he was not paying proper attention on the day and the complainant agreed that he was not, that his head was “not in the game 100%”, it was the year anniversary of his wife’s death and that he was also “shook” after an incident that had occurred a week earlier.  He stated that he had sought time off at the time but that no time was given.  He stated that he was “shook up and not sleeping” and that he needed a week or two off and that ultimately when he did not get that, he crashed.  Mr McD asked him was it possible that as he was not 100% “in the game” that this resulted in him crashing into the parked truck.  The complainant said that he thought he had pulled out far enough but that maybe his frame of mind was a contributing factor.  He stated that he was in work and that he was considered fit for work, that he had 30 years driving experience, that he was a professional driver and that it was simply human error.  He stated that it is a case that 100% of crashes are as a result of human error and that there is always still human error involved. 

Mr McD asked the complainant if he accepted that there had been quite an impact when the crash happened and the complainant confirmed that he did accept that.  Mr McD put it to the complainant that Ms K had stated in her written complaint that he had “rammed into” the truck and the complainant responded that no, he had not rammed into the truck, that he clipped the truck.  Mr McD put it to the complainant that it must have been a significant impact to result in him not being able to exit the bus.  The complainant responded “no, the bus is a tin can” and that the impact always looks worse than it is and that is just how vehicles are made now. 

Mr McD asked the complainant to confirm that he had received a text from him on the 4th September and the complainant confirmed that his phone had beeped but that he did not open the text.  Mr McD put it to him again, did he accept that he had received a text message and the complainant confirmed that he had received the message.  Mr McD asked the complainant to confirm that he had phoned him on the 5th September and he said that he had received a phone call and that Mr McD had said that “J was looking for blood” and that he would be better off to resign rather than lose his licence and that he (the complainant) responded “he can do what he likes, I’m not resigning”.  He stated that he raised it on the 10th September in the meeting with Mr McD and Mr McD asked him if that was the case, if that was what had occurred on the 5th September, why had he outlined such a different account in his subsequent email.  The complainant said that maybe the conversation had not taken place on the 5th September but in any event, he was still in shock when he replied to the email. 

The complainant stated that he was not going back over old ground.  He stated that Mr McD denied what he had said and that he was not a man of his word, that he was not getting into an argument again, that it was just clear that the company did not want to retain him in employment.  He said that rumours went around like wildfire but that he was clear he would not have told the company that he was giving up, that it was simply a case that the company wanted to be rid of him.  Mr McD put it to the complainant that if he had concern about an incident why did he not bring it up at the investigation meeting either and the complainant said that he had already had it out and that he had moved on.  Mr McD asked him when had he originally seen the CCTV footage and he said he had seen it in J’s office in advance of the investigation meeting and he confirmed that that was the case.  Mr McD pointed out that he had been shown where he had mounted the kerb and that he denied that.  He also denied that he had ran a car off the road.  He accepted that he had broken a red light and that he had crashed.  He said that at the time of the appeal he had not seen the CCTV footage, that it was encrypted, that he had not been able to see it, but Mr McD put it to him again that he had seen it in Mr McD’s office and he confirmed that he had but that he could not get to see it at home.  The complainant stated that the clips were approximately 5-6 minutes long and that he was there for an hour and he confirmed that he had seen it while he was there but he said he wanted to study the footage at home but he was unable to open it.  He said that eventually his representative got it sorted.  Mr McD put it to the complainant that they had an obligation to their customers to protect their safety and the complainant responded that wouldn’t you think that the company would have called in an expert to look at the CCTV footage. 

Witness evidence – Ms RW (daughter of complainant):

The complainant representative asked Ms W if she could explain how she heard the conversation on the phone between Mr McD and the complainant.  Ms W confirmed that she was in the bedroom, right beside where her dad was on the phone, that she had gone in to check on him and that he always puts the phone on loudspeaker.  She stated that while she was there, the phone rang and that it was Mr McD on the phone in relation to the incident of the previous day.  She stated that Mr McD told the complainant that he would get the complainants’ licence taken if he did not resign.  She said she continued to stand at the door while this conversation took place.  She stated that she had advised that she was available on the day of the appeal hearing and that she waited in the car, in the carpark, but that she was not called in to the appeal hearing. 

Cross examination of Ms RW:

Mr McD asked her if she was confirming under oath that he had said to the complainant that it was in his best interest to resign his position or Mr McD would go to the Gardaí and Ms W confirmed that yes, that was her position.  Mr McD put it to her that she had not seen the CCTV and Ms W confirmed that she was not aware of the CCTV footage, that she was just there to give evidence about what she had heard.  Mr McD asked Ms W if she was aware that the complainant had not included all of the information in his email where he had said that he was “done with driving” and Ms W confirmed that she was not aware of that.  Mr McD asked Ms W why her father would have given such an account of his position on driving based on her account and she advised that she could not answer for her dad.  She said she had sworn an oath and that she could only give evidence based on what she had heard.  She stated that she was clear on what Mr McD had said. 

Mr McD asked her if it was the first time she had heard that the complainant had said that he would never drive again and Ms W confirmed that yes it was the first time she had heard it because she was not allowed to give evidence at the appeal hearing.  Mr McD asked her when did she first discuss the incident with her father and she stated that it was the morning after the incident when she went in to see her father and found him upset.  Mr McD asked her when did she next discuss the matter with her father or his representative and she confirmed that she had discussed it with him when she was preparing the case but she can not be sure of the exact date.  Mr McD asked her if the discussion had taken place prior to the investigation meeting and Ms W stated that she was not sure.  Mr McD asked her if the complainant representative was involved at that stage and again Ms W said she was not sure.  Ms W said that after her father got the CCTV footage he had to make contact with a number of people and at that time he met with his representative.  Mr McD asked her did she know when that was and she confirmed that no, she did not.  In response to a question from the Adjudication Officer, Ms W confirmed that it could have been prior to the disciplinary meeting.  Mr McD asked her would she acknowledge that there was a conversation with the complainant where he was asked about his intention and Ms W stated that her father loved his job and that he would not have said he was finished.  Mr McD pointed to the email of the 5th September which he stated contradicted that position and that the email from the complainant clearly set out his intention to leave. 

Preliminary issue:

In considering this matter I took into account the information supplied by the parties in the Complainant’s complaint form and in the evidence given by the parties and witness at hearing.  I also considered supporting documentation provided by the respondent in advance of the hearing and post hearing submissions.

Section 2 (1) of the Unfair Dismissals Act states that “This Act shall not apply in relation to any of the following persons:

(a)    An employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him”

I noted the Respondent position that the Complainant did not have sufficient service to allow him to pursue a claim under the Act and the following dates were relevant to that position:

·       The Complainant commenced employment on the 11th December 2019

·       The Complainant’s employment was terminated on the 22nd October 2020.

In support of this position the Respondent provided a copy of the Complainant’s contract which referenced a commencement date of 11th December 2019 and a copy of an email from Employability services dated 19th November 2019 introducing the Complainant to the Respondent. On 4th April 2023 post hearing, the Respondent submitted a copy of a payslip dated 15th December 2019 and confirmed that this was the Complainant’s first payslip.

I noted the Complainant position that he did have cover of the Act and that he commenced working with the Respondent at an earlier date in November 2019. I noted that the start and end dates of employment contained in the complaint form were as follows:

·       The Complainant commenced employment on the 16th November 2020

·       The Complainant’s employment was terminated on the 25th November 2020.

I further noted the correction sent by email to the WRC on 15th April 2021 by the Complainant Representative which stated that:

·       The Complainant commenced employment on the 16th November 2019

·       The Complainant’s employment was terminated on the 25th November 2020

I noted the Complainant’s evidence at hearing where he demonstrated a significant degree of uncertainty in relation to his start date.  I noted that initially he confirmed the 16th November 2019 as his start date and his termination of employment dates as 25th November 2020.  However, I further noted his evidence where he stated that there was no question that he had commenced employment in 2019, and that it was actually the 16th November 2019.  Yet again he gave evidence that he received the job offer on the 16th November and that commencement was delayed by two weeks, but that the letter of offer was dated the 16th November 2019.

I noted also the evidence given by the Complainant that there was no evidence that he had ever signed his contract, that the contract submitted by the respondent was unsigned and that he had actually started work on the 4th December although his job offer was dated the 16th November.    I further noted that he indicated that he was not 100% sure of the date that he started but that he drove around for approximately two weeks and that he was on his own for a day or two and that this was in or around the 28th/29th November and he went on to advise that it seemed to him that he had commenced employment on the 28th and 29th of November and that he had payslips that would demonstrate that position.  I noted that the Complainant did not provide any copies of payslips post hearing, although it was open to him to do so and he had been advised accordingly at hearing.

In the context of the confusion on the part of the Complainant regarding his start date I cannot determine a start date based on his evidence.  I therefore must examine the evidence provided by the Respondent.  In this regard I noted the start date of 11th December contained in the contract, the evidence given by the Respondent at hearing that payroll is a week in arrears and the first payslip dated 15th December 2019. In particular I noted the email correspondence from Employability services to the Respondent dated 19th November 2019 (at 2.56 pm) where the Employment Facilitator wrote a paragraph outlining the Complainant’s work history and aligning the Complainant’s capability and suitability with the role of Bus Driver. 

It is abundantly clear to me that the Complainant was not employed by the Respondent as at the date of that email i.e. 19th November 2019.  Taking all of the above into account, on balance I have concluded that the Complainant’s start date was 11th December 2019.

It is clear from the documentation provided that the Respondent dismissed the Complainant 22nd October 2020.  At that date the Complainant had less than the requisite 12 months’ continuous service to enable him to pursue a claim under the Act.  I consider the date of dismissal to be the correct date of termination of employment.  However, for the avoidance of doubt, if one were to take into account the appeals process undertaken it is evident from the documentation provided by the Respondent that the appeal hearing took place on 12th November 2020 and the outcome of that hearing was issued to the Complainant on 20th November 2020.  If one were to take the date of the outcome of the appeal as the termination date, based on a start date of 11th December 2019 and a termination date of 20th November 2020 it is clear that the Complainant did not have the requisite service to pursue a claim of unfair dismissal under the Act.

Based on the foregoing I find that the Complainant did not have the requisite 12 months’ continuous service to pursue a claim of unfair dismissal under the Act.

I have found that the Complainant did not have the requisite 12 months’ continuous service to pursue a claim of unfair dismissal under the Act and so it is my decision that this complaint is not well founded.

Unfair dismissal; cover of the act