ADJUDICATION OFFICER DECISION
Adjudication References: ADJ-00007274 & ADJ-00008479
A Bus Driver
A Former Employer trading as A Bus Hire Company
Ms Claire Bruton BL instructed by Shanley Solicitors
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 7 of the Terms of Employment (Information) Act 1994
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act 1973
Dates of Adjudication Hearing: 26th September 2017 and 1st December 2017
Workplace Relations Commission Adjudication Officer: Aideen Collard
The Complainant initially referred the aforesaid complaint of Unfair Dismissal against the Respondent, an individual trading as a Bus Hire Company under Section 8 of the Unfair Dismissals Acts 1977-2015 to the Workplace Relations Commission on 21st February 2017. He subsequently referred the aforesaid complaints under Section 7 of the Terms of Employment (Information) Act 1994 and Section 11 of the Minimum Notice & Terms of Employment Act 1973 on 4th May 2017. The complaint of Unfair Dismissal arises in circumstances whereby the Complainant contends that he was dismissed as a result of making a protected disclosure. Arising from the same factual circumstances, he also referred complaints under Section 4 of the Protection of Persons Reporting Child Abuse Act 1998 against a Transport Service (ADJ-00008840) on 3rd June 2017 and a School (ADJ-00009550) on 29th June 2017. He further referred complaints under Section 8 of the Unfair Dismissals Acts 1977 against the same School (ADJ-00010099) and Transport Service (ADJ-00010100) on 10th August 2017. The Complainant confirmed that he had brought the latter complaints against the two third parties as they were responsible for the chain of events culminating in his dismissal.
All six complaints were referred to me by the Director General for adjudication and were listed for hearing on 25th September 2017. The Respondent was not in attendance but when it came to my attention that Shanley Solicitors were representing the Respondent but had not received the hearing notification, I adjourned the complaints against him. The School had written to the WRC confirming that it would not be in attendance as it was not the Complainant’s employer for the purposes of the complaints in question. Representatives for the Transport Service were in attendance and upon being satisfied that the Complainant could not be defined as an ‘employee’ in relation to either the School or Transport Service for the purposes of the complaints, I excused them from the hearing. Upon explaining to the Complainant that I only had jurisdiction to hear complaints against an employer as defined by the Act/s under which they were brought and there being no issue that the Respondent was his employer, he withdrew the complaints against the School and Transport Service in writing. In subsequent emails, the Complainant sought to reverse this withdrawal before confirming again in writing that he did in fact wish to withdraw those complaints. In other communications with the WRC, the Complainant expressed disquiet that it could not entertain the complaints against third parties and indicated his intention to issue civil proceedings against them.
A new hearing date of 1st December 2017 for the remaining complaints against the Respondent as listed aforesaid was scheduled, on which date both Parties were in attendance. The Complainant represented himself whilst the Respondent was represented by Ms Claire Bruton BL, instructed by Shanley Solicitors. The Complainant confirmed that he was happy to proceed without legal representation. In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts 1977-2015, I inquired into these complaints and gave the Parties an opportunity to be heard and to present any relevant evidence. There was no objection to a correction of the Respondent’s legal name. I recapped on what had occurred at the first hearing. As the Complainant was representing himself, I outlined the relevant legal provisions in lay terms. The complaints were fully heard but as the Respondent had made an open offer to the Complainant at the hearing as outlined below, the Parties were given a period of time (which was extended) to try and resolve matters between them. Failing same, it was agreed that a decision would issue. Both Parties subsequently confirmed in writing that the matter had not resolved and sought a decision. The Complainant had also submitted further clarification of his evidence which has been noted. All evidence, submissions, documentation and relevant caselaw have been taken into consideration.
The Complainant contends that he was employed by the Respondent as a bus driver on a school bus route (contracted to the Respondent by the Transport Service) to transport children to and from the School in question, from 31st August 2016 until he was dismissed on 2nd December 2016. The Respondent accepts that he was employed for this purpose but contends that his employment was in fact terminated on 26th January 2017. However, it is not disputed that he had at least thirteen weeks’ service (required for minimum notice entitlements). It is also common-case that the Complainant had worked for the Respondent previously and there had been no issues with his work. The Respondent did not call any evidence disputing the Complainant’s contention that he had made a protected disclosure within the meaning of the Protected Disclosures Act 2014. However, and as set out hereunder, the Respondent contended that he had not dismissed the Complainant for making the protected disclosure in question, but had done so under threat of losing his contract with the Transport Service. The Complainant’s ancillary complaints that he had never received a statement in writing containing the particulars of the terms of his employment in writing at any stage, contrary to Section 3 of the Terms of Employment (Information) Act 1994, or one week’s notice or pay in lieu under the Minimum Notice & Terms of Employment Act 1973 were uncontested. I would not usually refer to settlement talks between parties so as to preserve their ‘without prejudice’ nature. However, Counsel for the Respondent requested that I note an open offer to the Complainant as outlined below. Having afforded the Parties time to see if agreement could be reached following the hearing, ultimately the Complainant rejected this offer on the basis that he wants the child protection issue to be investigated and does not want to be part of a ‘cover-up’. He seeks reinstatement to his employment on the bus route in question and/or compensation.
Summary of Complainant’s Case in relation to all Complaints:
At the hearing, the Complainant gave detailed evidence (also provided in writing), confirming his employment with the Respondent to drive a bus to transport children to and from the School in question (as contracted to the Respondent by the Transport Service). This required 13 hours work per week in respect of which he was paid €120 per week. He also confirmed that he was in receipt of Disability Allowance which permitted him to work for up to 20 hours per week, that the work was rehabilitative in nature and he was limited in terms of alternative work that he could physically undertake. He confirmed that there had been no issues with his work or complaints about his driving prior to the circumstances giving rise to the termination of his employment, and he had maintained a penalty-points free record on his Bus/HGV licence. In early November 2016, the School’s Caretaker, Mr Y replaced the regular escort to accompany children on the school bus. The Complainant said that on the first occasion, Mr Y sat at the back of the bus with two of the children and consistently tickled them throughout the 20 minute journey. He felt that this constituted inappropriate behaviour and had wanted to say something but was unable to find the appropriate words. On the second occasion when Mr Y accompanied children on the bus in mid-November 2016, the same thing occurred except this time it was a lot more extreme and louder than before. When Mr Y said to one of the boys: “If that was a dress I would rip it off of you”, he felt that he had to do something. He considered reporting Mr Y but then thought of the huge repercussions for him.
The Complainant became aware that Mr Y was due on the bus again on 22nd of November 2016, and in an effort to deal with the situation himself, he checked the School’s website and read its Child Protection Policy. He also checked the Transport Service’s booklet entitled ‘Child Protection Guidelines for (Transport Service) Staff 2015’ and under the heading ‘Code of Behaviour for all (Transport Service) Staff, Contractors and their Employees’, one paragraph stated: “There should be no horseplay with children, nor any hugging, holding, tickling or cuddling.” He decided that showing this paragraph to Mr Y would be an appropriate way of telling him to desist from his behaviour. When Mr Y arrived at the bus that day, the Complainant showed him the paragraph in question and asked if he could sit near the door. Mr Y was very annoyed and asked whether the Complainant realised what he was insinuating. He said he would accompany Mr Y to the School Principal’s office. During the bus journey, Mr Y asked to see the booklet and pointed out that it applied to Transport Service staff, and as a School employee he was subject to School rules. The Complainant said he would still prefer if Mr Y would abide by the Transport Service rules whilst on the bus.
The following morning of 23rd November 2016, the School Principal asked to speak to the Complainant in her office. She said that Mr Y had reported the incident to her the previous evening. The Complainant accompanied her and gave his account of what had occurred on the bus on the three occasions in question as outlined above. The Principal said that it was necessary for escorts including Mr Y to sit beside or near the children as they had autism and might need attention. The Complainant had told her that the children were fine and did not need any extra attention. He left the meeting relieved that he no longer needed to report Mr Y and the matter was out of his hands as Mr Y himself had brought it to the School Principal’s attention. That afternoon, the Complainant received a call from the Respondent, wanting to know what was going on and also telling him that the School Principal wanted him replaced, that the Respondent’s contract with the Transport Service was in danger and he was not to operate the afternoon school run. The Complainant was shocked and told him about the child protection issue that had arisen and meeting with the School Principal. The Respondent then rang him back to confirm that the bus was to run as normal and proposed a meeting with the School Principal and a Transport Service representative. The Complainant indicated that he was agreeable to such a meeting but later the Respondent rang back to say that as one of the parties had pulled out the meeting was cancelled. The Complainant continued driving the bus as normal and Mr Y was on the bus again that afternoon. Around the same time, a Transport Inspector from the Transport Service came onto the bus and asked him to sign a folded piece of paper, possibly a form. The following day, he received another call from the Respondent stating that the School Principal had been informed by the former escort that he had hit a pole and a curb with the bus three months’ previously. As he had only been working since September 2016, he thought this was strange and started to make contemporaneous notes. On 25th November 2016, he spoke to the former escort who denied speaking to anyone about his driving and confirmed that he was a good driver. During this conversation, he also referred to the legal protections for employees in his position and employment fora for enforcing same. The following day, the Respondent rang him to say that the School Principal had been informed that he may be taking matters further.
On 30th November 2016, the Complainant received a further call from the Respondent stating that the School Principal wanted him to attend her office and retract what he had said as it was a mistake. He was to apologise for showing Mr Y the Transport Service’s booklet and confirm that he would not be taking the matter any further. Without this apology, he could not do the afternoon bus run and the Respondent’s contract with the Transport Service would be gone along with his job. The Complainant felt he had done nothing wrong but nonetheless went to the School Principal’s office with the booklet and apologised for showing Mr Y the paragraph in question. She said that that was not the apology she needed but rather a reassurance that he would not be taking any further action. He felt this was absurd but agreed so that the bus could continue to run as normal. Following the meeting, he texted the Respondent to say that the meeting went well and he hoped this had resolved the issue. A screen-shot of this text message was furnished at the hearing.
A few days later, the same Transport Inspector approached the Complainant enquiring about a pole. The Complainant said that this was nonsense being used to detract from the real issue, being the safety of children and told him about the child protection issue. As he was leaving, the Complainant asked the Inspector to check the bus to confirm that there were no marks on it. Whilst on the next bus run, he noticed a white car following him and pulling up on the footpath 100 metres behind him when he was dropping off a child. On 3rd December 2016, the Respondent asked to meet the Complainant in his yard with the bus which was usually kept at the Complainant’s house. He showed the Complainant an email dated 2nd December 2016, received from the Transport Inspector in question stating (typos included): “Hi (Respondent).I received complaints regarding your driver’s driving so I followed him on part of his route. I quickly observed how fast he was driving, I then noticed that he was not slowing down on approach to speed bumps, it was as if they were not there. He was driving 60 kms per hour in a 50 km limit and with children with special needs this is far too fast. (Respondent) this type of driving cannot be tolerated and i need you to replace him with another driver immediately. Regards (Transport Inspector)” The Respondent said that he had no choice but to let the Complainant go, adding that he was very sorry and he would give him a good reference. He took back possession of the bus and drove the Complainant to his house where he also took back the fuel card, checklist book and tachograph discs for the bus. The Complainant had said that he would be seeking legal advice. The following day, the Complainant reported the matter to his local Garda Station and when he followed up, he was informed that it was not a Garda matter and might be civil matter. He also sought legal advice in relation to the options open to him. On 9th January 2017, he telephoned the Respondent’s office as he had still not received his P45, payslips or reference, and told a staff member that he may be pursuing an unfair dismissal complaint.
On 10th January 2017, the Complainant received a call from the Respondent stating that he had asked the Transport Service for an official letter giving reasons as to why its Inspector wanted him removed from the bus run in question, and further that if he did not receive the letter by 12pm the following day, he would have the Complainant reinstated on the bus. The following day, the Complainant received an email from the Respondent attaching a letter dated 11th January 2017 from a Regional School Transport Manager with the Transport Service which stated (typos included):
“Dear (Respondent), I refer to your School Transport Service Contract for route X.
(The Transport Service has) recently received a formal complaint regarding the behaviour of nominated driver (names the Complainant) who operates the above service on your behalf. The complaint refers to the intimidating and argumentative behaviour of the driver towards the escorts on the service. The complaint also alleges that (his) driving was unsafe, referring to a particular incident whereby the driver reversed into a lamppost (this was not reported to the local office).
Following further investigation carried out by the School Transport Inspector the driver was witnessed driving over the speed limit and in a dangerous manor. When asked about his ongoing issue with the escort, the driver was aggressive and unapologetic toward the Inspector. It has been decided that the driver is not suitable to operate as a nominated school transport driver.
I refer you to Clause 4 Drivers, sub-clause 4.7. – (The Transport Service) reserves the right at its absolute discretion to object at any time to any person nominated or engaged by the Contractor as a driver of any School Bus. Without prejudice to the foregoing, it is a condition of this Contract that in the event of (the Transport Service) informing the Contractor of its objection to any driver, the following provisions shall apply; 4.7.1 The contractor shall forthwith cease to deploy that driver on any Route; and further sub clauses of 4.7.2, 4.7.3, 4.7.4 and 4.7.5. Please confirm by return that nominated driver (the Complainant) will not be employed on any school transport services operated on behalf of (the Transport Service) whether under contract or adhoc arrangement. Yours sincerely,”
In the following days, the Complainant communicated his concerns about the situation and the child protection issue arising to several relevant organisations. On 17th January 2017, he met with the Respondent in a local café to discuss the matter and they had a 45 minute meeting. The Respondent had confirmed that during the telephone call from the School Principal on 23rd November 2016 telling him that she wanted the Complainant replaced, she had also said that what went on in the bus was “none of his business”.The Complainant told the Respondent that he had still not received a P45, wage slips or reference as promised and matters were left unresolved between the Parties.
The Complainant received a payslip for week ending 2nd December 2016 by post on 24th of January 2017. He subsequently received a further payslip in respect of his outstanding holiday pay. He also received an email from the Respondent with his P45 attached, stating the date of cessation as 20th January 2017. He stated that this was incorrect as his employment had ended on 2nd December 2016 without notice or pay in lieu. On 27th January 2017, he emailed the office regarding the incorrect details on his P45 and followed up with a phone call on 30th January 2017. On 2nd February 2017, he sent an email to the office asking for written reasons for his dismissal and for his P45 to be corrected. He received a text message from the Respondent to say that it would be sorted out right away but had received no response to date. He wrote to the Respondent again on 14th August 2017, seeking written reasons for his dismissal pursuant to Section 14(4) of the Unfair Dismissals Act 1977.
As a consequence of making the protected disclosure resulting in the termination of his employment with the Respondent as outlined above, the Complainant believes that his Bus/HGV licence is worthless without reversal of his dismissal. This is because his reputation has been irrevocably damaged, and also as the Transport Service operates the majority of local routes, his options for finding alternative employment have been greatly curtailed. He seeks reinstatement to his previous position and if this is not possible, maximum compensation in circumstances where his career as a bus driver has been severely damaged. He confirmed that as of the date of the hearing, he had not applied for any alternative bus driving work as he felt that he was blacklisted arising from the circumstances giving rise to the dismissal. He confirmed that he had made enquiries about other driving work with two other companies but had not heard back. He was also dubious about the arrangements which required him to use his own car and offered minimum pay. He rejected the Respondent’s offer of work on routes not operated by the Transport Service primarily because this work was irregular and/or not guaranteed in the same way as the pre-existing school run. The Complainant was particularly exercised that nothing had been done to address the child protection issue, and that he could not maintain complaints against the third parties involved before the WRC.
I showed the Complainant Section 5 of the Protected Disclosures Act and asked him to confirm how his disclosure fell within the definition of a protected disclosure. He said that his disclosure constituted ‘relevant information’ and comprised of the wrongdoings required by Section 5(3). He also confirmed that as Mr Y’s employer, it was appropriate to make the disclosure to the School.
Under questioning from Counsel for the Respondent, the Complainant accepted that Mr Y was not an employee of the Respondent and that he had no responsibility for Mr Y. When it was put to the Complainant that he had not made the protected disclosure directly to the Respondent, he said that he had reported the matter to the Respondent when he had telephoned him some three hours after his meeting with the School Principal. He accepted that in hindsight it may have been better to bring his child protection concerns to the Respondent’s attention before pursuing with Mr Y directly. It was further put to him that the Respondent had been informed by the Transport Service that his contract was in jeopardy if he continued to employ him as a driver on the bus route in question and he had no alternative but to let him go in circumstances outside his control. The Complainant accepted that this was the position but felt that the Respondent could have done more to stand up for him. It was also put to him that he had worked for the Respondent on 9th and 13th December 2016 and had been offered driving duties on 9th and 17th January 2017. The Complainant said that he could not remember doing any further work for the Respondent after 3rd December 2016 but if he had, it had been on non-Transport Service operated routes. Various other matters which are not of material relevance to this decision were put to the Complainant and it was suggested that he had adopted an argumentative approach, particularly in his dealings with the third parties concerned.
Summary of Respondent’s Case in relation to all Complaints:
Written submissions setting out the Respondent’s position were received in advance of the hearing. The Respondent’s legal representatives did not seek to have anyone on behalf of the School or the Transport Service attend to give evidence on his behalf, and it is noted that as the legislation stands, the WRC does not have statutory power to compel witnesses under the Unfair Dismissals Act 1977.
The Respondent gave evidence confirming that he had operated his business as a sole trader for 38 years and holds a number of contracts with the Transport Service to provide bus services on its routes. This included a five-year contract for the school bus run in question which entailed bringing special needs children to and from the School. He confirmed that he had employed the Complainant to operate this route on a salary of €120 per week. Apart from the date of dismissal, the Respondent did not take particular issue with the sequence of events giving rise to the termination the Complainant’s employment including the contents of the various telephone calls and meetings between them. He also confirmed that he had no issues with the Complainant’s work or driving, and had been concerned at the manner in which the Transport Inspector had reached his findings and demand that the Complainant be removed as a driver from the bus route in question. He referred to the absence of any independent proof of the speed that the Complainant had allegedly been travelling when observed. As he had been unhappy with the email of 2nd December 2016, he had followed up in writing with the Transport Service threatening to reinstate the Complainant unless it provided official reasons for its demand that he be removed as a driver. These were provided by letter dated 11th January 2017 as set out above. He said that he had no control over the circumstances giving rise to the termination of the Complainant’s employment in circumstances where his contract/s with the Transport Service allowed it to determine what drivers operated its bus routes as set out in the clauses cited above. His business was dependent upon these contracts, worth circa €500,000 per annum and providing employment to many employees. He had been led to believe that his contract/s were in jeopardy if he did not comply with the direction to have the Complainant removed as a driver on the route in question. He confirmed that the decision to terminate his employment was therefore not owing to the disclosure he had made. He said he had been upset at having to make this decision and the situation had caused him considerable stress. He also confirmed that he did not have equivalent guaranteed driving work for the Complainant in the area where he resided but could offer him ad hoc work on non-Transport Service routes.
The Complainant put it to the Respondent that he could have obtained the services of a Solicitor and done more to back him up. The Respondent confirmed to me that he had not followed any dismissal procedures, furnished the Complainant with a statement in writing containing the particulars of the terms of his employment or paid him in lieu of his entitlement to one week’s minimum notice.
It was accepted by both Parties that as the Complainant did not have the requisite 12 months’ service to bring a general complaint of Unfair Dismissal, he could only succeed if he fell within one of the exceptions provided under Section 3(1) of the Unfair Dismissal Act 1977 (also referred to as ‘the 1977 Act’), in the instant case being that his dismissal resulted “wholly or mainly” from making a protected disclosure within the meaning of the Protected Disclosures Act 2014 (also referred to as ‘the 2014 Act’). In this respect, Counsel for the Respondent submitted that the approach adopted by the Labour Court in Aidan andHenrietta McGrath Partnership -v- Monaghan PDD162 required examination of the Respondent’s motivation and reasons which motivated or influenced the decision to dismiss, and it is only where the operative reason for the dismissal by the employer was the protected disclosure that such a complaint can succeed. It was contended that the Complainant’s dismissal had not been motivated by any disclosure. Sections of the Respondent’s contract with the Transport Service were set out to illustrate the wide discretion the Transport Service had to determine what drivers serviced its routes. An unfortunate situation had arisen whereby the Respondent had been “caught between a rock and a hard place” in circumstances where the Transport Service had demanded the Complainant’s removal as a driver from the school bus route in accordance with their contract and he had no alternative. The Respondent had been proactive in dealing with the situation by threatening to reinstate the Complainant until he received the official letter. It was further submitted that the protected disclosure had not been made directly to the Respondent and the causative chain was too remote to hold him liable for the consequences.
No particular defence was offered in respect of the Complainant’s complaints that he had not received a statement in writing containing the particulars of the terms of his employment or one week’s minimum notice and/or payment in lieu of same. It was submitted that the Respondent had no opportunity to give notice and he had not sought a written statement. To meet his complaints, the Respondent made an open offer to the Complainant, subsequently confirmed in writing, offering ad hoc driving work at 24 hrs notice on non-Transport Service routes at a rate of €9.55 per hour and compensation of €2,500 gross and a draft contract effective from 1st December 2016 was provided.
Findings and Conclusions – CA-00009817-001 - Unfair Dismissal
For the purposes of determining whether the Complainant was dismissed for making a protected disclosure, it is necessary to apply the relevant legal provisions to the factual matrix as adduced. The causative chain of events giving rise to the Complainant’s dismissal as outlined above are somewhat unusual and novel. Apart from the date of dismissal which nothing material turns on, the respective Parties’ evidence as set out above was not substantially in dispute. I am also cognisant that I have not heard from the School and Transport Service involved, and therefore my findings should not be construed as findings of fact as against those parties for the purposes of any other Proceedings.
Turning now to the relevant statutory provisions, Section 6 of the Unfair Dismissals Act 1977 was amended by the Protected Disclosure Act 2014 to provide that the dismissal of an employee resulting from making a ‘protected disclosure’ is automatically unfair as follows (emphasis added):
“6(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. (2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following: (ba) the employee having made a protected disclosure,”. A protected disclosure is defined by Section 1 of the Unfair Dismissals Act 1977 as having the meaning given by the Protected Disclosures Act 2014.
Section 11(1)(c) of the 2014 Act inserted paragraph 2D into Section 6 of the 1977 Act to provide that the requisite 12 months’ service required for general complaints of unfair dismissal does not apply in relation to dismissals arising from making a protected disclosure. As noted in Ryan in Redmond on Dismissal Law (3rd Edition, November 2017) Paragraph 20.09, Section 6 is still worded such that unless the fact of dismissal is in issue, the onus remains with the employer to justify the dismissal.
In determining complaints such as the instant one where there is less than 12 months’ service, the legislation requires a two-stage approach. Firstly, as the WRC’s jurisdiction to entertain this complaint is predicated upon the making of a protected disclosure within the meaning of 2014 Act, it is necessary to determine this issue first. Section 5(8) provides that in proceedings involving an issue as to whether a disclosure is a protected disclosure, there is a presumption that it is until the contrary is shown. However, the Adjudication Officer will still have to be satisfied on the balance of probabilities that the Complainant has made a protected disclosure within the meaning of the 2014 Act, and therefore this is a matter for the Complainant to establish. If the making of a protected disclosure within the meaning of the 2014 Act is not established, then the complaint must fail. Where the making of a protected disclosure has been established accordingly, it is necessary to move onto the second stage and consider whether the dismissal arose “wholly or mainly” from the making of that disclosure. The dismissal is presumed to be unfair unless the employer can show that it was not “wholly or mainly” from the employee making the protected disclosure in question.
Section 5 of the Protected Disclosures Act 2014 defines protected disclosures and parameters. Section 5(1) provides: “For the purposes of this Act “protected disclosure” means, subject to subsection (6) and sections 17 and 18, a disclosure of relevant information (whether before or after the date of the passing of this Act) made by a worker in the manner specified in section 6, 7, 8, 9 or 10 (providing a tiered disclosure regime). (2) For the purposes of this Act information is “relevant information” if- (a) in the reasonable belief of the worker, it tends to show one or more relevant wrongdoings, and (b) it came to the attention of the worker in connection with the worker’s employment.” Section 5(3) lists the various wrongdoings and (d) best encapsulates the wrongdoing contended by the Complainant, being “that the health or safety of any individual has been, is being or is likely to be endangered.” Based upon his sense of conviction, I am satisfied that the Complainant held a reasonable belief that Mr Y’s conduct tended to show such a wrongdoing, that it came to his attention in connection with his employment and was therefore ‘relevant information’.
Sections 6-10 of the Protected Disclosures Act 2014 define the persons to whom protected disclosures may be properly made. Relevant to the instant case, Section 6 provides: “(1) A disclosure is made in the manner specified in this section if the worker makes it- (a) to the worker’s employer, or (b) where the worker reasonably believes that the relevant wrongdoing which the disclosure tends to show relates solely or mainly- (i) to the conduct of a person other than the worker’s employer, or (ii) to something for which a person other than the worker’s employer has legal responsibility, to that other person.” Albeit by a circuitous route, I am satisfied that the Complainant reasonably believed that the relevant wrongdoing which the disclosure tended to show related solely or mainly to the conduct of a person other than the Respondent and/or was something for which the School had legal responsibility. Although Mr Y had already informed the School Principal of his version of events thus instigating the meeting of 23rd November 2016, by relaying his concerns as outlined above, I am satisfied that the Complainant disclosed ‘relevant information’ within the meaning of Section 5(1) of the Act to the School Principal. I am further satisfied that the Complainant repeated this protected disclosure to the Respondent in their telephone conversation later on the same day.
Having determined that the Complainant made a protected disclosure within the meaning of the Protected Disclosures Act 2014, I must ascertain whether his dismissal arose “wholly or mainly” from making that disclosure. In relation to complaints of penalisation under the Protected Disclosures Act 2014,in Aidan andHenrietta McGrath Partnership -v- Monaghan PDD162, the Labour Court deemed the ‘but for’ test to be applicable test. However, the instant complaint is one of unfair dismissal under Section 6(2) of the Unfair Dismissals Act 1977 as amended by the 2014 Act, providing that dismissal of an employee shall be deemed unfair if it results “wholly or mainly” from having made a protected disclosure. In this respect, the Complainant does not take issue with the Respondent’s contention that he terminated his employment under pressure from the Transport Service, save than his contention that the Respondent could have done more to defend him. In circumstances where he cannot maintain a cause of action under the 1977 Act against the School or Transport Service as outlined above, he contends that liability should rest with the Respondent.
Firstly, I note that there are no express terms in the 2014 Act making the employer liable for any detriment caused by third party actions and in fact Section 13(1) of the Act provides a cause of action in tort before the civil courts in such circumstances as follows: “If a person causes detriment to another person because the other person or a third person made a protected disclosure, the person to whom the detriment is caused has a right of action in tort against the person by whom the detriment is caused.” Secondly, the Complainant does not dispute the Respondent’s reasons for dismissing him and indeed, I found his evidence in this respect to be credible, as corroborated by the written communications from the Transport Service set out above. Although the Transport Service did not expressly threaten to terminate their contract/s with the Complainant in writing, I accept the Respondent’s evidence that he genuinely held this view based upon their communications. I am therefore satisfied that that his decision to dismiss the Complainant as unfair as it seems, was wholly motivated by protecting his contracts with the Transport Service. In reaching this conclusion, I have also posed two questions: Firstly, if the protected disclosure in question had been made directly to the Respondent without involving the School, would the Respondent have dismissed the Complainant as a consequence of same? Based upon the unrefuted evidence, I must answer this in the negative and find that he would not. Secondly, if circumstances unrelated to a protected disclosure had led to the pressure being exerted upon the Respondent by the Transport Service to have the Complainant removed as a driver, would the Respondent have dismissed him. Again, based upon the evidence adduced, I must answer this in the affirmative and conclude that he would have acted likewise. In this respect, I find that the Respondent has rebutted the burden of proof and the Complainant’s dismissal did not result “wholly or mainly” from his making a protected disclosure.
Finally, it is noted that in general complaints of unfair dismissal where employees with the requisite 12 months’ service have been dismissed as a consequence of third party pressure, the employment fora have held that fair procedures should be followed. This includes holding a meeting at the highest level with the parties concerned and/or the undertaking of an investigation into the subject-matter giving rise to the pressure being exerted. If the basis for that pressure is unfounded, efforts should then be made to persuade that third party to change its mind e.g. EAT in Merrigan -v- Home Counties Cleaning Ireland Ltd UD/904/1984. As acknowledged by the Parties herein, without the requisite 12 months’ service, the WRC does not have jurisdiction to entertain such a complaint.
Decision – CA-00009817-001 - Unfair Dismissal
Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to this complaint in accordance with the relevant provisions. Based upon the aforesaid reasoning, I have to find this complaint of Unfair Dismissal unfounded and accordingly, dismiss same.
Findings and Conclusions - CA-00011149-001 – No Written Statement
Section 3(1) of the Terms of Employment (Information) Act 1994 provides that an employer shall not later than two months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee, a statement in writing containing the particulars of the terms of his/her employment as listed therein. In circumstances where it is not disputed that the Respondent had not furnished the Complainant with a contract of employment or statement in writing containing the particulars of the terms of his employment during the course of his employment which exceeded two months or thereafter, I find this complaint to be well-founded.
Decision - CA-00011149-001 – No Written Statement
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6. As set out aforesaid, I am satisfied that the Respondent acted in contravention of Section 3(1) of the Terms of Employment (Information) Act 1994. As specified by Schedule 6, once a complaint has been declared well-founded under Section 7(2)(a) and a contravention found, in addition to making directions, Section 7(2)(d) provides for the award of: “compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.” I am satisfied that at the time of his dismissal, the Complainant was at considerable detriment owing to the lack of clarity regarding the terms and conditions of his employment caused by the absence of such a written statement. I therefore deem it just and equitable to direct the Respondent to pay him compensation equivalent to the sum of 4 weeks’ gross remuneration and at €120 per week, this equates to €480.
Findings and Conclusions - CA-00011149-002 – No Minimum Notice / Pay
Section 4(1) of the Minimum Notice & Terms of Employment Act 1973 provides: “An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.” Section 4(2) sets out the periods of minimum notice to be given by an employer to terminate the contract of employment of an employee based upon years of service and provides: “The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be- (a) if the employee has been in the continuous service of his employer for less than two years, one week,”. In circumstances where it is not disputed that the Complainant had the requisite thirteen weeks but less than two years’ service and had not been given notice or pay in lieu, I find that this complaint is well-founded.
Decision - CA-00011149-002 – No Minimum Notice / Pay
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6. I find this complaint to be well-founded for the reasons set out aforesaid. As specified by Schedule 6, Section 12(1) of the Minimum Notice & Terms of Employment Act 1973 provides: “A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.” I therefore direct the Respondent to pay the Complainant one weeks’ remuneration, being the loss sustained by reason of the contravention in the sum of €120 gross (subject to any lawful deductions).
Overall and for the avoidance of doubt, the Respondent is ordered to pay a total of €600 in compensation to the Complainant, comprising of €480 in relation to his complaint under the Terms of Employment (Information) Act 1994 and €120 (subject to any lawful deductions) in relation to his complaint under the Minimum Notice & Terms of Employment Act 1973.
Dated: 20th June 2018
Workplace Relations Commission Adjudication Officer: Aideen Collard
Key Words: Unfair Dismissal – Unfair Dismissals Act 1977 - Protected Disclosures Act 2014 - Terms of Employment (Information) Act 1994 - Minimum Notice & Terms of Employment Act 1973