Complainant

Respondent

Parties

John  O'Connor

Bonanza Bus

Representatives

  In person.

Gerry Martin Martin & Company

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-00057471-001

03/07/2023

The complainant was employed by the Respondent as a bus driver. Employment commenced on 3rd October 2020 and ended on 2nd July 2023. The Complainant worked 20 hours per week for which he received a gross pay of 275.00 euro.

This complaint was received by the Workplace Relations Commission on 3rd July 2023.

·        The Complainant had been working for the respondent company for 2 and a half years, he worked a 2-hour shift from 8am to 10am and 2pm to 4pm Monday to Friday and the bus came home with him and was parked in the driveway of his home.

·        On Thursday 29/06/2023 he received a phone call from his line manager to ask him why he had the bus on the road in between his shifts at 12pm, the Complainant was informed that he had been seen on the road by the boss and he shouldn't have been out in the bus at this time.

·        Throughout the 2.5 years of working for the respondent the Complainant had never been made aware of such a rule. The Complainant was aware that there are trackers installed in each vehicle and so never abused this practice of using the bus in between working shifts. It was commonplace for the Complainant as well as other employees to use the vehicle in between shifts within a reasonable parameter.

·        On the day in question the complainant was dropping his partner off at a shop on the way to his next shift at 2pm which is only 1 kilometer from the base where my next shift starts.

·        The following day 30/06/2023 the Complainant received another call and was told to leave the bus back in the yard over the weekend and that he should collect it on Sunday, the Complainant did that and got 2 modes of transport home.

·        On Sunday 02/06/2023 the Complainant received a call from his line manager telling him that every day when he finished his shift daily, he would have to leave the bus in the yard and collect the bus from the yard every morning.  The Complainant replied that it was not reasonable to ask this of him as he had to get 2 buses there and back and that it was never a condition of his employment and no other employee must do this.

·        If this was a company policy, he was never made aware of it and points out that he never received a contract of employment or employee handbook and was never verbally informed of the existence of such a rule.

·        The complainant asked the line manager to go back to the boss and advise this is not a fair request. The Complainant received another phone call then shortly after where his line manager told him he would receive 2 weeks’ notice money + holidays and to not turn into work for his next scheduled shift 03/07/2023.

·        The Complainant asked if he could collect his belongings from the bus, he got a lift off his daughter in law and his belongings were already packed up to collect despite there being anyone in the yard that day, which led the Complainant to believe they (the respondent) had this planned.

·        The Complainant contends that in his 2.5 years of employment he had never received a disciplinary warning or and negative comment about his work.

The Accountant for the Respondent (not an employee) furnished a statement of events and represented the respondent at the hearing of the complaint, he was accompanied by the operations manager at the hearing.

·        It was confirmed that the working hours stated by the complainant are correct and that the complainant was allowed to take the bus home and parked outside his house.

·        The respondent disagrees with the complainant about being told that the bus was not to be used outside operating schedule times. This was communicated to the Complainant at the commencement of employment. All drivers are aware of this rule and do not use the buses in between shifts.

·        On the 29/06/2023 as stated by the Complainant was seen by the owner at 12pm and this was communicated to him by the Operations Manager.

·        The Complainant has stated that he was dropping off his wife which was only 1 kilometre away from his shift start. This would appear to be incorrect statement from the Complainant as it was 2 hours prior to his shift start.

·        On the 30/06/2023 the operations manager did contact the Complainant about being seen using the bus outside shift times and that he was required to leave the bus on the business premises yard on each Friday and he could collect on Sundays.

·        The Complainant’s statement saying that no other employees are requested to park buses in the yard is incorrect. They are a number of buses parked each night in the yard by other employees for various reasons.

·        The complainant communicated to the operations manager that this arrangement was not satisfactory as he would have to get 2 buses from his home. The operations manager advised the complainant that his boss was very unhappy for some time about his driving behaviour and damaged done to the bus, damage included 2 wing mirrors broken and replaced. wing mirror indicator broken and replaced. Back door hinge damaged and pulled off, and finally the roof of the bus was damaged outside of working shift at his mother in law’s place one evening.

·        The cost of this roof repair was €2500. The owner decided that it would be best for the bus to be parked at the business premise each day to stop any further damage been done.

·        The Complainant advised the operations manager on the 30/06/2023, that this new work requirement would not suit him as it involved 2 buses each day and that he would have to give 2 weeks’ notice to finish.

·        On the 02/07/2023 Mr Thomas contacted Mr O’Connor that he was not required to work out his 2 weeks’ notice and would receive full pay and any holiday pay due to him. The Complainant did request to collect his personal belonging from the bus, which the new driver was requested to get ready and leave in the bus for him. The new driver had been in the yard earlier in the day to meet with the owner and discuss the run.

The facts of dismissal are in dispute. The Complainant is alleging that he was dismissed, and the respondent is alleging that he resigned from employment.

A contract of employment or an employee handbook should contain a procedure for employees to invoke in the context of any grievance or issue they have at work. Separately, they should also have a clear disciplinary procedure in place to be used when an employee’s performance or conduct falls short of the standards reasonably expected. There is no need for either procedure to be overly elaborate but in light of the heavy emphasis given by the courts and tribunals on the need to have such procedures, their importance cannot be over-estimated. The absence of a procedure or the failure to use it correctly will lead to employers being at a serious disadvantage when it comes to defending an unfair dismissal claim.

The presence of a clear grievance procedure will help to reduce any potential industrial relations difficulties at work. The essence of a grievance procedure is that it should allow an employee, however senior they may be, to raise their grievance to be dealt with in the most appropriate manner, either informally through mediation (if all the parties agree) or formally through an investigation.

The Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 contains general guidelines on the application of grievance and disciplinary procedures and the promotion of best practice in giving effect to such procedures.

While the Code of Practice is not legally binding, it certainly represents best practice and it states that ‘the principles and procedures of this Code of Practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues’.

The Code states that grievance and disciplinary procedures should be in writing and presented in a format and language that is easily understood, with copies of the procedures given to all employees at the commencement of employment and included in employee programmes of induction and refresher training and trade union programmes of employee representative training.

The Code acknowledges that procedures for dealing with grievance and disciplinary matters will vary according to the particular organisation, but confirms that all procedures must comply with the general principles of natural justice and fair procedures which include:

·        That employee grievances are fairly examined and processed.

·        That details of any allegations or complaints are put to the employee concerned

·        That the employee concerned is given the opportunity to respond fully to any such allegations or complaints.

·        That the employee concerned is given the opportunity to avail of the right to be represented during the procedure.

·        That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by. Or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

In the instant case I would be critical of both the Complainant and the Respondent. The Complainant has failed to lodge a grievance with the Respondent and the Respondent appears to have no policies and procedures in place for employees.

On the balance of probability, I’m finding in favour of the Complainant and deciding that his complaint is well found.

Mitigation of Loss.

The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss. Sir John Donaldson explained the duty in AG Bracey v Iles [1973] IRLR 210:

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interest of the employee and of the employer who has to pay compensation, that he should wait a little time. He must off course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay….’

In the instant case the Complainant has stated that he did apply for a couple of driving jobs however he failed to produce any documentation to support this claim.

In conclusion I decide that the Complainant was unfairly dismissed and now order the Respondent to pay compensation to him of Euro 1,100 (four weeks’ pay).

Such sum should be paid within 42 days from the date of this decision.

In conclusion I decide that the Complainant was unfairly dismissed and now order the Respondent to pay compensation to him of Euro 1,100 (four weeks’ pay).

Such sum should be paid within 42 days from the date of this decision.

Unfair Dismissals Act 1977