Complainant

Respondent

Parties

Yong Yue  Wang

Bus Atha Cliath - Dublin Bus

Complainant

Respondent

Anonymised Parties

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Representatives

Kieran Falvey BL instructed by Nicole Doyle Hanlon & Co. Solicitors

Kiwanna Ennis BL instructed by Hugh Hannon CIE 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-00056118-001

17/04/2023

The Complainant commenced his employment with the Respondent as a bus driver on 31 May 2009. His employment was terminated following an allegation that on 10 July 2022 he used his mobile phone while driving, having already been on a final written warning in respect of a similar offence. The Complainant stated that the dismissal was unfair, which the Respondent contested. There was also a dispute between the parties regarding the actual date of dismissal.  

The Complainant commenced his employment with the Respondent as a bus driver on 31 May 2009. He was issued with a final written warning on 6 January 2022, which he was not allowed to appeal, for using his mobile phone while driving. He was subsequently dismissed from his employment for allegedly using his phone while driving on 10 July 2022, which he denied.

The Complainant’s representative stated that the date of his dismissal should have been six weeks after 16 September 2022, the date on which he received notification of his unsuccessful second appeal, and not 18 August 2022, the date on which the Respondent stated he was initially notified of his impending dismissal, subject to an appeal.   

The Respondent stated in the first instance that the Complainant’s dismissal was substantively fair given that he had been engaged in an activity, namely using his phone while driving, which is prohibited by law.

The Respondent also stated that the dismissal was procedurally fair given that the Complainant had been afforded the opportunity of an independent investigation, a disciplinary hearing as well as two appeal hearings, prior to the decision to terminate his employment.

Preliminary Point:

The Law

Section 1 of the Acts refers to the date of dismissal, in its relevant part, as follows:

“date of dismissal” means—

(a)                where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment [Acts 1973 to 2005], the date on which that notice expires,…

Section 8(2) further provides as follows:-

(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause”

While I recognise that the notification of dismissal issued to the Complainant on 18 August 2022 was somewhat ambiguous, I nonetheless find that the correspondence of 16 September 2022 from the Head of the Appeals Board, issued following his unsuccessful second appeal clarified the date of the Complainant’s dismissal. Specifically, the letter, with the date in bold lettering, stated that the Complainant’s “dismissal from the Company’s employment is effective from 29 September 2022”. Crucially, and for the purposes of absolute clarity, the letter also stated that the Complainant was “entitled to six weeks’ notice” and had been “given notice of dismissal on 18 August 2022.” I find therefore that, even if I accept the assertion made by the Complainant’s representative that notice cannot be retrospective, this argument is irrelevant in the context of the instant complaint because both the notification and dismissal dates, as asserted by the Respondent, were so clearly set out in the letter of 16 September 2022. Accordingly, there should have been no misunderstanding of same when deciding to submit the instant complaint to the WRC.  

While the Complainant’s representatives also stated in their submissions that the letter of 16 September 2022 was never read or explained to him, the Respondent highlighted, and it was not disputed, that he was legally represented from at least 24 November 2022 when a request was made for the CCTV footage of the 10 July 2022 incident. As the time limit for the referral of this complaint expired on 28 March 2023, the Complainant therefore had ample opportunity to submit the WRC complaint within the six-month limitation period on receiving the appeal outcome but failed to do so.

As the Complainant did not advance any argument to suggest that he was prevented from referring the complaint due to reasonable cause which would have allowed me to extend the timeframe by a further six months, I do not have jurisdiction to hear the complaint.

I do not have jurisdiction to hear the complaint for the reasons set out above.