ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013734
A Bus Driver
A Bus Company
Council of Trade Unions
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 11 of the Minimum Notice & Terms of Employment Act, 1973
Date of Adjudication Hearing: 12/06/2018
Workplace Relations Commission Adjudication Officer: Marian Duffy
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
The complainant was employed by the respondent as a bus driver from the 3rd of May 2016 until 22nd of January 2018 when he was dismissed. His gross weekly pay was €525.00 and he worked a forty hour week. He is claiming that he was unfairly dismissed and that he is entitled to notice.
CA-00018047-001 Unfair Dismissals Act
Summary of Complainant’s Case:
The complainant was employed by the respondent as a bus driver on the Kerry/Dublin route. On the 20th December 2017, he picked up some passengers in Limerick and proceeded to the next stop where a revenue inspector boarded the bus. The complainant realised that he had one more passenger on the bus than had been registered on the ticket machine sales. He spoke to the inspector about it and asked him to conduct a ticket check and one passenger said that he had not been issued with a ticket. The complainant said that he checked the cash and this confirmed that the passenger was correct and he issued him with a ticket. The complainant said that it was a genuine error.
On the 29th of December 2017, the complainant was called to an investigation meeting to investigate a ticket discrepancy. He was advised that he could be accompanied by a work colleague but he was not advised of his right to representation.
During the investigation the complainant said that he set out what happened and told the investigation that it was him who brought the discrepancy to the attention of the inspector. He was not given the outcome of the investigation, but he was called to a disciplinary hearing on the 18th of January 2018 where he was informed he was dismissed and on the 22nd of January he received a letter telling him he was dismissed for gross misconduct.
The complainant submitted that he continued to drive the bus and was asked to drive it on the day of the disciplinary hearing. He submits that the decision to dismiss was made prior to the disciplinary hearing on the 22nd of January 2018. He met another driver 2 days beforehand who expressed surprise to see him at work as he understood that he had been dismissed. He rang the duty manager who did not deny the rumour. The complainant also met a new driver being trained on his route on the day of the disciplinary hearing.
The union submitted that the dismissal was both substantially and procedurally unfair. The complainant was dismissed for what the respondent deemed gross misconduct but it is arguable to say the least that the failure of the complainant to issue a ticket could constitute an act of gross misconduct particularly when he was not placed on suspension. He continued to work during the investigation and the disciplinary process. I was referred to the Labour Court decision in DHL Express (Ireland) Ltd DHL and Michael Coughlan UDD1738 where the Labour Court, in holding that the dismissal for misconduct in that case was unfair, noted that the complainant in that case was allowed to work for a period of 2 weeks after the incident before he was suspended. In addition, in that case the Labour Court took issue with the fact that there was a failure by the employer to consider a sanction short of dismissal. The union submitted that the complainant accepted that he mistakenly breached company procedures in not issuing a ticket, but argued that such an error could not constitute misconduct as defined in the EAT case of Lennon v Bredin M 160/1978.
In addition, there was a breach of procedures as follows:
The complainant was not advised of his right to appropriate representation;
He was not provided with a copy of the investigation officers report and findings;
The decision to dismiss was made in advance of the disciplinary hearing thereby denying the complainant fair procedures and his right of reply being taken into consideration;
The complainant was not appraised in the dismissal letter of any internal appeals mechanism.
The union contended that the actions and omissions of the employer in respect of the investigation and disciplinary process are sufficient in themselves to render the dismissal unfair.
Summary of Respondent’s Case:
The respondent did not attend the hearing. Having checked if a notification issued, I satisfied myself that a letter notifying the respondent of the date of the hearing issued and I proceeded to hear the case.
Findings and Conclusions:
The complainant is claiming that he was unfairly dismissed and that the sanction of dismissal was disproportionate in all the circumstances.
Section 6 of the Unfair Dismissals Act 1977 as amended provides inter alia as follows:
“(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.”
Subsection (4)(b) provides that “the dismissal of an employee will not be unfair if it results wholly or mainly from inter alia the “conduct of the employee”. Subsection 6(6) provides “. In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. In addition, subsection (7) provides that where appropriate regard may be had “to the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.”
Therefore, the burden of proof rests with the respondent to demonstrate the dismissal was neither substantially nor procedurally unfair. The respondent did not attend the hearing. I note that the dismissal letter states that the complainant was dismissed for reasons of gross misconduct on the conclusion of an investigation and disciplinary process relating to a breach of company policy. In considering what constitutes gross misconduct, I am guided by the jurisprudence of the Labour Court in the case of DHL Express (Ireland) Ltd DHL and Michael Coughlan UDD1738 which stated as:
“The established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC, 1996)) wherein the Tribunal states:
‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’
This Court finds that the grounds that the Respondent was advised were to form the basis of a disciplinary action against him – viz. ‘failure to protect and safeguard company property’ – considered in the context of the events of 19 October 2015, does not come within the category of ‘very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer’, described above by the Tribunal. In any event, the uncontested evidence before the Court was that the Appellant allowed the Respondent to continue driving his company vehicle for some two weeks after the 19 October 2015 before he was suspended.”
Likewise, in applying the above jurisprudence, it cannot be said that the failure of the complainant to issue a ticket to a passenger meets the above definition of ‘very bad behaviour’. In addition, I note that the complainant continued to drive the bus for a month after the incident and if fact was asked to drive the bus on the day he was dismissed. This completely undermines the respondent’s contention of gross misconduct in the letter of dismissal. I am satisfied that procedurally the dismissal was unfair. There were a number of shortcomings in the investigation and disciplinary hearing for example the complainant was not advised of his right to have union representation, given the report of the investigation in order to prepare a defence for the disciplinary hearing nor was he given a right to appeal the dismissal. In addition, it would appear on the uncontested evidence of the complainant, that the respondent had decided on the sanction of dismissal prior to the disciplinary hearing. Furthermore, I find that the sanction of dismissal imposed was disproportionate and unwarranted in all the circumstances.
For all of the above reasons I find that the complainant’s dismissal was both substantially and procedurally unfair within the meaning of the Act.
In relation compensation for financial loss attributable to the dismissal, I note that the complainant was out of work for a period of 7 weeks and he then got a job at the same rate of pay. Therefore, the financial loss amounts to €3,675.00 gross
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.
I find that the complainant’s dismissal was both substantially and procedurally unfair within the meaning of the Act. I award the complainant a sum of €3675.00 gross for his financial loss. This award is subject to tax.
CA-00018047 Minimum Notice
Summary of Complainant’s case:
The complainant submitted that he was dismissed without notice or payment in lieu of notice.
Findings and Conclusions:
The complainant was summarily dismissed without notice. As I have found above, the complainant’s dismissal was unfair, it follows therefore that he is entitled to notice. Based on the complainant’s service with the company, he is entitled to payment in lieu of notice in the amount of €525.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
I find that the complainant is entitled to one week’s notice and I award him one week’s pay which amounts to €525 gross which is subject to tax.
Dated: 19th September 2018
Workplace Relations Commission Adjudication Officer: Marian Duffy
Unfair Dismissals Act 1977, misconduct, procedures, Minimum Notice and Terms of Employment Act 1973,