ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007039
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 19/09/2017
Workplace Relations Commission Adjudication Officer: Roger McGrath
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant, a cleaner, commenced employment with the Respondent, a bus/coach company, on 9th July 2014. He was dismissed from his employment on 29th November 2016. His gross weekly pay was €493.30. A Complaint Form was received by the WRC on the 7th February 2017. The favoured redress for both parties is compensation.
Summary of Respondent’s Case:
The Complainant was on a final written warning issued in March 2016. The warning was appealed by the Complainant but the warning was upheld. The Complainant did not opt to appeal the warning a second time as allowed under the company's Disciplinary Procedures.
On the night of Friday 28th October, a rear light of a bus was broken necessitating repairs to the tune of €2,000. On investigation, the respondent came to the view that the bus had been damaged when the Complainant was reversing it within the compound/cleaning area.
The Respondent called an investigatory meeting which took place on the 9th of November. At this meeting, it was put to the Complainant that he had damaged the bus while reversing it. The Complainant responded by stating that he was not sure it was he who had damaged the bus as he did not feel anything when the alleged damage was thought to have been done. The Complainant also stated that he would have reported the matter to the Duty Officer (D.M.) if he had noticed he had actually damaged the bus.
Following the investigation, a disciplinary hearing took place at which the Complainant was shown CCTV footage of the incident. According to the Respondent when the Complainant saw the CCTV footage he admitted that he had damaged the bus and was aware that he had done so. The Respondent believes that the notes of the hearing support this view of events.
The Respondent decided that the failure of the Complainant to report the damage to the D.M. amounted to 'major misconduct' and as the Complainant was already on a final written warning, the Respondent was, in their own words, left with no option but to dismiss.
The Complainant appealed this decision twice but on both occasions the decision to dismiss was upheld.
The Respondent stated that damage to buses is of serious concern and not reporting damage is deemed to be 'major misconduct'. Memos notifying staff of their responsibilities in this area are, according to the Respondent, regularly placed on noticeboards in the canteen.
In response to questioning the manager who had carried out the investigation stated that employees, including the Complainant, received training from the Driving Assessor, who is a registered driving instructor, and there are some forms completed when this training takes place. when asked how such forms had not been provided in the documents supplied on foot of a Data Access request the manager said he could not understand why this was so. The manager also stated that when he investigated the matter he had not checked driving training records for the Complainant.
The manager of had heard the appeal stated that having reviewed the CCTV footage it was his view that the Complainant must have known he had damaged the bus and had failed to notify the D.O. of the matter. It was the failure to report the damage that resulted in the disciplinary action being taken.
When questioned, the Respondent stated that there had been previous dismissals for failure to report damage.
Summary of complainant’s Case:
The Complainant provided a detailed written submission.
At the outset of his testimony the Complaint submitted that the final written warning extant on his file when he was dismissed was illegitimate as it was issued unfairly.
The details outlined by the Complainant regarding the incident of 29th October when the bus was damaged do not differ in essence from those outlined by the Respondent above.
The Complainant submitted that he had did not have a category D licence at any stage of his employment. He also put forward that he had never been instructed that he must report any damage to buses to the D.M. He also cited a recent example where he had driven a bus with a broken windscreen, had not reported it without any adverse consequences The Complainant submitted that he had only received 'on the job training' by a colleague, not from a supervisor or manager and had never before been required to notify damage to vehicles which was a frequent occurrence.
In evidence the Complainant stated that he had never seen the memos about reporting damage referred to by the Respondent. He also stated that he had not received any driver training, that he had taught himself in the yard with help from his peers. He also stated that he had never reported damage before. He did agree that he knew there was damage to the bus.
The Complainant appealed the dismissal on the grounds that it was too harsh a punishment for damaging a light and not reporting it.
Findings and Conclusions:
I have considered this matter carefully.
The Complainant agrees that he did not report the damage to the bus to the duty manager. However, he says he was never told he had to report damage and he had noticed damage in the past and had not reported with no repercussions. He was also never taught how to drive the buses. He also believes the final written warning which he was on at the time of the decision to dismiss was flawed.
It is the Respondent's belief that the Complainant damaged the bus and was aware of that yet he did not report it to the Duty Manager as he should have done. From the Respondent's perspective, this failure to report the damage equated to 'major misconduct', and as the Complainant was already on a final written warning there was no option other than to dismiss the Complainant.
I will first address the legitimacy or otherwise of the final written warning. This warning was issued in March 2016 and went through a detailed disciplinary process. The Complainant did not take up the option of a second appeal as allowed; he did not exhaust those procedures. Consequently, he must accept that this warning was extant when the decision to dismiss was taken, it is too late to try and undo that final written warning now.
In deciding on the fairness or otherwise of this dismissal a number of questions need to be answered.
The Respondent says that memos were placed on noticeboards in the canteen informing employees of their duty to inform a superior about damage to vehicles. Copies of the memos were produced on the day of the hearing but no evidence was adduced to show that employees were made aware of the need to report damage. The Complainant says he never saw these memos and was never told of this obligation. He says he was never issued with a Handbook (which might have contained on instruction on reporting damage). I t accept the Complainant's evidence.
The Respondent says that the Complainant received driving training from an instructor yet no evidence was produced to support this point. Nor were there any driving records in the documents provided to the Complainant on foot of his Data Access request. In evidence the Complainant says that the only driver training he got was from colleagues. The Complainant does not have nor did he ever have a D category driving licence during his employment with the Respondent, yet he drove buses, albeit within the confines of the yard. My view is that if you wish an employee to drive a bus you must first teach him how to drive a bus. If an employer fails to do that, then on his own head be it if the employee then damages a bus while driving it.
I do not believe the grounds were such as to justify a dismissal.
In the circumstances, I believe the decision to dismiss was too harsh. Even though the Complainant was on a final written warning I believe the sanction of dismissal was disproportionate.
Rather than dismiss the Complainant some other manner of disciplinary action, perhaps an opportunity to make recompense, should have been considered.
An employer is bound to show not only had he substantial grounds justifying dismissal but also that he followed fair and proper procedures before dismissal. In relation to procedures a number of questions need to be answered.
(i) Was the Complainant given adequate details of the allegations to be able to adequately address them?
The Complainant was made aware of the allegations against him as these were outlined to him both verbally and in writing. However, the Complainant was not made aware of the possible level of sanction, either in writing or at the outset of the investigation and disciplinary meetings, that might be taken against him if the allegations were upheld.
(ii) Was the Complainant afforded an opportunity to defend himself and have his arguments and submissions listened to and evaluated by the Respondent in relation to the threat to his employment?
The Complainant was only given sight of the CCTV footage at the disciplinary hearing not at the investigation meeting as he should have been. The withholding of this crucial evidence until the Disciplinary Hearing meant he did not have ample time to prepare a defence.
The Complainant was never issued with a copy of the Disciplinary Procedures or an Employee Handbook so he went into the investigation and disciplinary hearing at a disadvantage.
Although the Complainant turned down the offer of representation/ being accompanied during the investigation and disciplinary processes, it is my view that the Respondent should have done more to encourage the Complainant to get a colleague or suitable other to accompany him. I say this because the level of sanction possible was dismissal (of which he had not been advised) and the Complainant's first language is not English.
Of themselves none of the faults outlined above would be enough to render a process procedurally unfair, I believe when combined they do push the process across the line that divides fair and unfair process.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 9 of the Protection of Employees (Employers’ Insolvency) Acts, 1984 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9 of that Act.
The Complaint of Unfair dismissal is upheld. The Complainant submitted that his financial losses amount to approximately €21,600, though his representative did say that this was an over-estimate. He did get part-time work in May 2017, at €130.00 per week, but this only lasted for 6 weeks. He has recently taken up a new job on similar terms as those he enjoyed with the Respondent. The Complainant say he tried lots of places to get work but the supporting evidence was thin. I believe his efforts to mitigate his losses could have been better.
In the circumstances, I order the Respondent to pay the Complainant €12,825.80 within six weeks of the date of this Decision.
Workplace Relations Commission Adjudication Officer: Roger McGrath