ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013218
A Bus Driver
A Bus Company
Eamon Keaney (Benen Fahy Associates)
Complaint/Dispute 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 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 12/09/2018
Workplace Relations Commission Adjudication Officer: Ray Flaherty
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, andfollowing 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 commenced employment, as a bus driver, with the Respondent, a Bus Company, on 7 August 2001.
During the course of a disciplinary process in November 2017, the Complainant tendered his resignation to the Respondent on 28 November 2017.
The Complainant submitted his complaints, under the Unfair Dismissal Act, 1977, to the WRC on 15 February 2018.
Summary of Complainant’s Case:
Background to Disciplinary Process:
It was submitted on behalf of the Complainant that, on 8 November 2017, he was driving an inbound city bus when he stopped to take on passengers. Close to the city centre, a young woman, with apparent special needs, stepped onto the bus. It was submitted that this passenger briefly held up a travel pass and then move away to a seat. An elderly gentleman then followed the young woman onto the bus. According to the Complainant he did not know immediately whether this gentleman was associated with the woman who had just got on, but the gentleman did not indicate in any way that he was accompanying the young woman. According to the Complainant, the gentleman did not present a senior citizen pass or communicate with him in any way.
According to the Complainant’s evidence, as the elderly gentleman walked towards the seat, the Complainant requested to see his pass. The gentleman then claimed that the Complainant had in fact seen in his pass. According to the Complainant’s evidence, after a verbal exchange the gentleman handed the Complainant the young woman’s pass, which showed it to be a companion pass. According to the evidence, this pass allows the gentleman to enter the bus as a “companion” without having to pay. The Complainant stated that, before taking his seat, the gentleman accused him of being “contrary”.
The Complainant submitted that, upon reaching the terminus in the city centre, the gentleman approached the Complainant asking him what he did wrong. The Complainant stated that the gentleman accused him of trying to cause trouble. According to his evidence, the Complainant again explained that he had not seen the pass. He further stated that he informed the gentleman that he was simply doing his job and had to ensure all people had a valid pass on entering the bus. The Complainant indicated to the gentleman that he was not trying to cause trouble upset and requested the man to vacate the bus.
According to the Complainant’s evidence there was then a heated exchange between the parties. The Complainant stated that he was conscious that he had to drive to his next stop. He stated that he repeatedly requested the gentleman to leave the bus. He further stated that, after several requests to leave were made, he got out of his seat and physically escorted the man from the vehicle. According to the Complainant’s submission, drivers may physically remove a person from a vehicle if the said person is asked to leave and fails to do so. The Complainant also stated that drivers may, in such situations, “use such force as may be necessary”. In support of his evidence in this regard, the Complainant submitted a copy of the relevant provisions from the Respondent’s Drivers’ Handbook.
The Complainant stated that as he ushered the gentleman out of the bus, he felt him veering to the left. He stated that, in an attempt to centre the gentleman’s balance, he pulled him to the right, at which point the gentleman stooped directly downwards onto one knee. The Complainant stated that once a gentleman was clear from the bus he promptly got back into his driver’s seat and proceeded to drive away.
According to the Complainant’s evidence, at approximately 11:05am on the following day (9 November 2017), he was requested to report to the Respondent’s Service Manager (Mr A). The Complainant stated that he was shown three different CCTV tapes of what had happened the previous day. Each clip had been taken from a different angle on the bus. The Complainant stated that he was immediately suspended pending a disciplinary hearing.
The Complainant submitted that he subsequently received written notification to attend a disciplinary hearing on 22 November 2017, to answer a charge of “gross misconduct in the discharge of company duties”. According to the Complainant, he was accompanied to the meeting by his Trade Union representative (Mr B). it was further submitted that Mr A was the sole representative from management at the meeting.
According to the Complainant’s evidence, at the commencement of the meeting, he handed Mr A a prepared written account of the incident that occurred on 8 November 2017. The Complainant stated that Mr A glanced at the report before placing it on his desk and advising that he would read it later. According to his evidence, the Complainant was then shown one CCTV clip of the incident in question. The Complainant stated in evidence that despite the fact that there was CCTV footage available from a number of different angles only one clip was shown at the meeting. In addition, the Complainant stated that none of the footage leading up to the incident and which would have given context, was shown.
The Complainant stated that as the CCTV footage was playing, Mr A remarked that there was “no excuse” for the behaviour shown on the clip. The Complainant stated that Mr A suggested that he (the Complainant) had deliberately and intentionally attempted to cause the gentleman harm. The Complainant further submitted that, after a brief discussion, Mr A stated that the Complainant would “never work for [ the Respondent] again”. The Complainant stated in evidence that he was shocked by this remark. The Complainant further stated that he believed the matter would be fully investigated before a decision was made. He also stated that he had not been put on notice in advance of the meeting that his job was at risk.
According to the Complainant’s evidence it was then put to him that he could voluntarily retire. The Complainant submitted he was told, by Mr A, that if he was to retire that he would keep his gratuity bonus which amounted to approximately €10/15,000. He further stated it was made clear to him that if he did not retire he would be dismissed and lose his gratuity. The Complainant further stated that he was been given a week to think it over and the meeting was brought to a close.
The Complainant stated that he was greatly upset and surprised by the way he was treated during the course of the disciplinary process. He said that he had not been given a fair proper hearing before a decision was made to terminate his employment.
According to the Complainant, at approximately 4:30pm on 28 November 2017, he received a phone call from Mr A. He stated that, in this phone call, Mr A informed him that he had only one more day to make a decision. The Complainant further stated that he was also told if he did not tender his resignation, the matter would be referred to Human Resources in Dublin and he would lose his gratuity.
According to the Complainant’s evidence, he submitted a letter of resignation to the Respondent later that evening as he felt he had no choice but to do so.
Complainant’s substantive submission in support of his complaints:
The Complainant’s representative submitted that the Respondent failed to implement fair and proper procedure during the course of the disciplinary process as follows:
a) The written invitation to the disciplinary hearing did not put the Complainant on notice that he could be dismissed. In addition, no reference was made to the possibility that the sanctions could include dismissal.
b) The Complainant was not given a copy of the statements or evidence (including CCTV) relied upon in advance of the hearing.
c) The Complainant did not receive a full and objective investigation into the allegation before a decision was made to dismiss him. Mr A did not read or fully consider the Complainant’s submissions before stating “there is no excuse for this” and “you’ll never work in [the Respondent] again”.
d) The Complainant was not given the opportunity to state his case, as his written submissions were not considered. Mr A formed a judgement on the allegations before hearing and fully considering the facts.
The Complainant’s legal representative submitted, at the Hearing, that correspondence, dated 1 February 2018, had been received from the Respondent, in which it was suggested that the Complainant was not dismissed but chose to retire early, by a few months, after having examined the CCTV footage of the incident of 8 November 2017 and following discussions with Mr A.
In conclusion, it was submitted on the Complainant’s behalf that, following a flawed and unfair disciplinary process, the Complainant had no choice but to resign. It was further submitted that this resignation was tendered after he was told he would be dismissed and lose his gratuity if he did not resign. Consequently, it was submitted on behalf of the Complainant that he was forced to resign, as a result of his employer’s actions during the course of a flawed and unfair disciplinary investigation.
Finally, it was submitted that the Complainant is particularly aggrieved because the incident of 8 November 2017, could have been avoided through proper management. It was submitted that the Complainant, for many years, addressed the difficulties that he and other drivers faced when requesting travel passes from the travelling public.
Summary of Respondent’s Case:
The Respondent did not attend the oral Hearing.
Findings and Conclusions:
The Complainant submitted two separate complaints relating to the same set of facts which resulted in the termination of his employment on 28 November 2017. The first complaint (CA-00017460-001) was an unfair dismissal complaint submitted under Section 8 of the Unfair Dismissal Act, 1977. The second complaint (CA-00017460-002) was a complaint for Constructive Dismissal, which was again submitted under Section 8 of the Unfair Dismissal Act, 1977.
As it is not possible to run an unfair dismissal and a constructive dismissal claim in relation to the same set of facts, the first matter for consideration was to determine whether a dismissal had taken place or whether the Complainant had submitted his resignation, thereby making his complaint one of constructive dismissal.
Having carefully considered all of the evidence submitted I am satisfied that the Complainant was not dismissed by the Respondent. The evidence submitted clearly shows that the Complainant’s employment with the Respondent was terminated by means of a letter of resignation submitted by the Complainant on 28 November 2017. There is no evidence to suggest that the Respondent dismissed the Complainant.
Consequently, taking the above into consideration I am satisfied that the Complainant’s claim for Constructive Dismissal under Section 8 of the Unfair Dismissal Act, 1977, is the only valid claim for consideration as his complaint for unfair dismissal under the same act fails on the basis that no dismissal took place.
Therefore, on that basis, I proceeded to consider the Complainant’s claim for constructive dismissal.
Constructive dismissal relates to a situation where an employee terminates their contract of employment, as was the situation in the case at hand.
Section 1 of the Unfair Dismissal of Act, 1977, defines such a dismissal as follows:
“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer,”
Significant legal precedent exists which establishes that, for a constructive dismissal claim to succeed, it has to satisfy the dual tests of (1) Breach of Contract and (2) Reasonableness. The first test, that of breach of contract, requires that the contract of employment has to have been breached to such a degree that the employee is left with no option but to resign. However, it is now also generally understood that an employee must also act reasonably in terminating their employment and that resignation must not be the first option taken by the employee. All other reasonable options including grievance procedures must be explored.
The reasonableness test requires that the Complainant must satisfactorily demonstrate that the Respondent behaved or acted in a manner, which was so unreasonable as to make it impossible for them to continue in the employment and which fundamentally breached their trust and confidence in the bona fides of the other party. In so doing, the Complainant must also show that their own action/behaviour in resigning was reasonable in all the circumstances. This is regularly referred to as the mirror image concept.
Unlike a complaint of unfair dismissal, where the burden of proof rests with the employer to show that the dismissal was not unfair, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign based on their employer’s conduct.
As already stated significant case law exists which underpins the above concepts. For example, with regard to the burden of proof, the Employment Appeals Tribunal (EAT) held, in UD 1146/2011, that “in such cases [constructive dismissal] a high level of proof is needed to justify the Complainant’s involuntary resignation from their employment, i.e. he must persuade the Tribunal that his resignation was not voluntary”.
This was further confirmed in the case of Allen v Independent Newspapers (Ireland) Ltd (2002 ELR 84), where it is stated that: “the onus is on the claimant to prove his case” and that “the test for the claimant is whether it was reasonable for him to terminate his contract”.
It is also well established that a Complainant is required to initiate and exhaust the company’s internal grievance procedures, in an effort to resolve their grievance, prior to resigning and submitting a claim for constructive dismissal. This concept is clearly set out in Reid v Oracle EMEA Ltd [UD1350/2014] where the EAT stated; “It is incumbent on any employee to utilise and exhaust all internal remedies made available to him or her unless he can show that the said remedies are unfair”
The behaviour of the employer in such scenarios is referred to by the EAT in Donnegan Vs County Limerick VEC [UD828/2011] where it is stated: “In particular, the claimant must show that the respondent acted in such a way that no ordinary person, could or would continue in the workplace” and also in McCormack v Dunnes Stores [UD 1421/2008], where it is stated: “The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer’s conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable”.
Against the background of the above tests and in the context of the established case law in this regard, I carefully considered the evidence presented by the Complainant in support of his contention that he had no option but to resign from his employment. In this regard, I carefully reviewed the specific reasons presented by the Complainant in support of his claim for constructive dismissal.
Firstly, I am satisfied that not only did the Respondent behave in such a manner as to leave the Complainant with little or no option but to resign but, as the evidence presented on behalf of the Complainant clearly shows, the Respondent actually issued an ultimatum to the Complainant that in the event that he failed to tender his resignation he would be dismissed and, in addition, would lose his entitlement to a gratuity. Consequently, in such circumstances, I am satisfied that the Complainant had no option but to submit his resignation to the Respondent.
In submitting a claim for constructive dismissal, a complainant is required to demonstrate that they exhausted all internal procedures, including the Grievance Procedures, before reaching the conclusion that they had no option but to resign from their employment. The circumstances leading to the Complainant’s submission of his resignation arose at a point in time when the Respondent had initiated the disciplinary process.
It is well established in case law that when conducting a disciplinary process, particularly where there is potential that a serious sanction, including dismissal, might apply, there is a clear onus on an employer to demonstrate that fair process and procedures were applied when conducting the disciplinary process.
In cases where the dismissal relates to gross misconduct, the EAT set out the appropriate test to be applied in such circumstances. In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:
"In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrong doing. The test for the Tribunal in such cases is whether the respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."
With regard to the case in hand, the Complainant presented compelling evidence in relation to the disciplinary process which clearly indicates that he was not provided with anything resembling a fair or reasonable process in the investigation of the serious charge of “Gross Misconduct in the discharge of Company duties”. The Complainant’s evidence clearly shows that the entire process was managed and conducted by the Respondent’s Service Manager (Mr A).
The following aspects of the Complainant’s evidence would support the contention that fair process and/or procedure were not administered:
· No evidence of a proper incident investigation prior to inviting the Complainant to attend a disciplinary meeting.
· Failure to consider submission presented by the Complainant at the disciplinary meeting.
· Comments made during the disciplinary meeting to the effect that “there is no excuse for this behaviour” and “you will never work in [the Respondent Company] again”.
All of the above suggest that the Respondent’s representative, Mr A, who conducted the disciplinary process, had predetermined the outcome without affording the Complainant a proper opportunity to present his case or providing him with a fair hearing.
I also find it concerning that Mr A was the only person involved in the investigation and disciplinary process. Mr A appears to have been the person tasked with all aspects of the process, including, conducting the investigation, carrying out the disciplinary process and determining the sanction to be applied. In my view, the process cannot, in such circumstances, be considered to have been balanced and objective.
A significant body of case law exists with regard to the issue of the separation of the investigation stage from the disciplinary decision-making process in the context of providing fair procedure, particularly in a process that results in the termination of an employee’s employment.
In Joseph Brennan Bakeries v Rogers (UDD1821), the Labour Court stated:
“The Court considers that the multiplicity of roles undertaken by TG [ the General Manager] in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw the procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that the within enterprise is of a nature which afforded the Respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by the selection of available management level personnel to carry out the different stages of the procedure.”
The circumstances pertaining to the role of the Service Manager (Mr A), in the within case, are very similar to those set out by the Labour Court above. I am further satisfied that the nature of the Respondent’s organisation is such that it could easily have accommodated the separation of roles as clearly established in the above Labour Court decision.
My concerns, in this regard, are further underpinned by the evidence presented by the Complainant, in relation to the manner and the context in which Mr A presented the Complainant with the “Hobson’s choice” of tendering his resignation or being dismissed. I find that the situation was further compromised by the introduction of the possibility that the Complainant may lose his gratuity if he were dismissed. Such action can only be considered as unreasonable and unacceptable.
Taking all of the above issues into consideration, I find there to be a distinct lack of objectivity and independence in the carrying out of the investigation and disciplinary processes which ultimately led to the Complainant tendering his resignation.
Consequently, I find that the Respondent, on a number of levels, did not provide the Complainant with a fair procedure and, in effect, left him with no alternative but to resign. Therefore, I find that the Complainant’s claim of constructive dismissal is well-founded.
Calculation of loss/compensation:
Based on the evidence presented, I am satisfied that, having found the Complainant’s claim of constructive to be well founded, the most appropriate form of redress is compensation. In calculating the amount of compensation to be awarded I have taken into consideration the fact that the Complainant was due to retire on 6 March 2018.
Consequently, the amount of compensation to be awarded to the Complainant is calculated in line with his loss of salary in the period between his resignation on 28 November 2017 and his retirement date of 6 March 2018.
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.
Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant was constructively dismissed in a manner contrary to the provisions of the Unfair Dismissal’s Act, 1977.
Based on the above decision I award the Complainant €10,200.00 in compensation.
Dated: 14th August 2019
Workplace Relations Commission Adjudication Officer: Ray Flaherty