ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00053352

Parties:

	Complainant	Respondent
Parties	Daniel Hanley	City Direct Bus Ltd

Representatives

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00065335-001	12/08/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00065335-002	12/08/2024

Date of Adjudication Hearing: 12/09/2025

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 39 of the Redundancy Payments Acts 1967 - 2014 and 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. Parties were advised in advance of the hearing that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 that the hearing would be held in public, that an Adjudication Officer may take evidence under oath or affirmation and reminded that cross examination was permitted. The hearing was heard remotely, pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359/2020, which designated the Workplace Relations Commission as a body empowered to hold remote hearings. Where submissions were received, they were exchanged. The complainant gave evidence under affirmation and Mr Bartley gave evidence under oath.

Background:

The complainant submits that he was dismissed unfairly and that he did not get redundancy payment.

Summary of Complainant’s Case: CA-00065335-001

The complainant commenced employment on 16/05/2017 and his employment ceased on 31/07/2024. The complainant submits that he did not receive his redundancy payment.

He worked as a bus driver earning €550 per week and had been doing the same route for 6 and a half years. The respondent lost this route to another company when it went to tender, and he was informed that there was no more work as this route was gone. It was not until he called HR nearly 4 weeks later that he received an actual offer of another job with the respondent which was not a suitable alternative as it had less favourable hours and was at a reduced rate of pay. He submitted that he was never offered the opportunity to transfer to the other company or given any form of redundancy process when the role was removed despite having more than 2 years of service.

Suggestions were made that there might have been other shifts available in the days, evenings, and nights for drivers, but he was told that this would only be decided end of August or September and the complainant was not advised as to what would happen during the time period between the end of the run, he did on the 31/07/2024. On 26/07/2024 he was told by three employees that they heard that the complainant had resigned, and he had not. The complainant believed the respondent was communicating this to push him out of the company. On 30/07/2024 Mr Bartley said that the complainant was not entitled to redundancy as he had been employed for the route that was now gone. With no work forthcoming the complainant commenced part-time work with a different employer as he hoped that the respondent would sort out the matter. The complainant made contact with the HR person Mr A on 06/08/2024 who expressed surprise at what had happened. The following day on 07/08/2024 there was an email from Mr Bartley offering some work with a tight deadline which involved longer hours at less pay and commencement on 12/08/2024. It was clear the respondent had no intention of retaining the complainant or paying redundancy entitlement. Any attempt to discuss things with them previously had been met with brush off tactics and vague promises.

His evidence was that he was told by Mr Bartley that they had lost the tender for a bus route, and he asked if his job was gone. He was asked about working days, evenings, or nights and was told it could be end of September before shifts could be finalised. Another company approached him and asked could he do the route and he told them his loyalty was with the respondent. He spoke with Mr Bartley on 09/07/2024 as he had heard that the route was going to tender and expected the respondent to be successful with the tender. Nothing was received in writing and then he was told there would be other shifts days, evenings, or nights but the respondent did not elaborate on what this might be. On 24/07/2024 he was approached, and Mr Bartley asked if he had made a decision. On 25/07/2024 he approached Mr Bartley and told him it was his belief his position was redundant and asked what the shifts were available and was told days, evening or night and it was expected the complainant would still do the route until the tender ceased on 31/07/2024. On 30/07/2024 the complainant went to Mr Bartley and asked about redundancy and was told he was not entitled to it and that the employment was dependent on the tender and they had lost the tender. On 31/07/2024 the complainant arrived at the depot and there was no sign of the other manager Mr X and on 06/08/2024 the complainant contacted Mr Y at HR and advised him that he was in limbo as a result of losing the tender and was told to contact the WRC. The complainant said he never came across a nicer employer then the respondent and he commenced employment with the other employer on 01/08/2024 and did not have any loss in earnings.

The complainant was not cross examined on his evidence.

Summary of Respondent’s Case: CA-00065335-001

The complainant was employed by City Direct Bus Limited as a bus driver on a full-time basis between the 16/05/2017 and 31/07/2024 and worked evening service (Monday to Friday) but at one point he moved to an evening shift. The shuttle bus service he operated on was put to public tender and the respondent was unsuccessful in their bid for the tender. Once the respondent was informed of the unsuccessful bid on 09/07/2024 they informed the complainant they were unsuccessful with the bid on the same day and advised the route would finish on 31/07/2024. He was advised that they were negotiating a contract with a national body and if he wished to stay on, then they would discuss further which shifts would suit him. On 24/07/2024 the complainant was asked if he wished to remain on and he advised that he had not made a decision.

On 15/07/2024 the complainant advised that he would not be staying with the respondent and the respondent understood this to be a resignation of employment by the employee. On 30/07/2024 the complainant asked about redundancy, and he was advised that he was offered continuous work but that he had resigned and therefore there was no entitlement to redundancy and was told to speak to the owner and the complainant was seen driving the bus for the company that had secured the tender on 01/08/2024. On 07/08/2024 the complainant was offered full time work (i.e., his former evening shift Monday to Friday: € 130 per evening shift) commencing the following Monday 12/08/2024 and was advised he needed to respond by 09/08/2024 and the complainant phoned the HR person Mr Y who was on holidays and Mr Y was not acting on behalf of the respondent when he gave advice to the complainant and Mr Y had also been drinking. The complainant requested a copy of his contract on 08/08/2024 and was given a copy of same.

When City Direct was unsuccessful with the tender the complainant was offered continuous full time bus driving employment This employment offer provided additional hours of work and payment accordingly. However, the complainant himself notified the respondent that he was leaving City Direct and therefore, the complainant was not made redundant or dismissed but instead decided to leave City Direct and to work for another bus company.

The evidence of Mr Bartley General Manager was that the complainant was an excellent employee and was also excellent with customers and was a true professional. The respondent became loss making in 2023 and applied for a national bus contract and they thought they would have to shut down, but discussions were entered into with the national body regarding available routes and it was hoped there would be a contract in place for them and it was signed on 26/10/2024. He said that at the time he was not in a position to confirm details of a contract for the complainant and there is a shortage of bus drivers across the country. It was his understanding that owing to the uncertainty that the complainant resigned his position and it had been planned to keep the complainant on after 01/08/2024 albeit he could not have told him what specific shift he would be working and that the complainant knew he would be kept on if he wished.

There was no cross examination of the Mr Bartley’s evidence.

Findings and Conclusions: CA-00065335-001

The complainant submits that the position of bus driver was no longer available and therefore he was made redundant. The respondent submits that the complainant’s position was not made redundant, and that the complainant resigned and commenced employment with another employer very shortly after he resigned his position.

I have been struck during this hearing by a clearly mutually agreeable relationship between the complainant and the respondent despite the matters that led to the submission of the complaint. It was notable that the complainant gave evidence that the respondent was the best employer he had and that the witness for the respondent Mr Bartley outlined that the complainant was an excellent employee who had a great relationship with staff and customers. This would appear to be further borne out by neither parties wishing to cross examine each other’s evidence.

The complainant’s evidence was that his position was no longer available as the respondent lost the tender and that the respondent was not forthcoming with what other positions he might be given and that it was only after he engaged with Mr Y that the respondent followed up with him and that it was in effect too little too late. Mr Bartley’s evidence was that it was his belief that the complainant had resigned his position and that the complainant secured employment very quickly with the bus company who were successful in the tender.

Section 11 and Section 12 provides that

Lay-off and short-time.

11.—(1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

(2) Where—

(a) for any week an employee’s remuneration is less than one-half of his normal weekly remuneration or his hours of work are reduced to less than one-half of his normal weekly hours,

(b) the reduction in remuneration or hours of work is caused by a diminution either in the work provided for the employee by his employer or in other work of a kind which under his contract the employee is employed to do.

(c) it is reasonable in the circumstances for the employer to believe that the diminution in work will not be permanent and he gives notice to that effect to the employee prior to the reduction in remuneration or hours of work,

the employee shall, for the purposes of this Part, be taken to be kept on short-time for that week.

Section 12

Right to redundancy payment by reason of lay-off or short-time.

12.—(1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short-time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, and

(b) after the expiry of the relevant period of lay-off or short-time mentioned in paragraph (a) and not later than four weeks after the cessation of the lay-off or short-time, he gives to his employer notice (in this Part referred to as a notice of intention to claim) in writing of his intention to claim redundancy payment in respect of lay-off or short-time.

(2) Where, after the expiry of the relevant period of lay-off or short-time mentioned in subsection (1) (a) and not later than four weeks after the cessation of the lay-off or short time, an employee to whom that subsection applies, in lieu of giving to his employer a notice of intention to claim, terminates his contract of employment either by giving him the notice thereby required or, if none is so required, by giving him not less than one week’s notice in writing of intention to terminate the contract, the notice so given shall, for the purposes of this Part and of Schedule 2, be deemed to be a notice of intention to claim given in writing to the employer by the employee on the date on which the notice is actually given.

The complainant finished his last shift with the respondent on 31/07/2024 and commenced employment with the new employer on 01/08/2024. There were clearly failures by the respondent who did not engage with the complainant to advise him what would happen on 01/08/2024 including if a lay off situation would apply, however, the complainant’s assumption that redundancy situation applied was premature in all the circumstances. As set out in J & D Kearns Ltd v Aaron O’Sullivan (RPD245)

“It is quite clear that merely advising an employee of a potential lay off situation, or even being put on lay off, does not entitle an employee to a redundancy payment. A minimum period of 4 weeks lay off must arise before a redundancy situation can be contemplated. Even if it were to be accepted that the Complainant was temporarily laid off, the Complainant immediately procured another full-time position and left the Respondent’s employment before a redundancy situation arose or could arise.”

I find that in all the circumstances that the complaint is not well founded and disallow the complainant’s appeal.

Summary of Complainant’s Case: CA-00065335-002

The complainant commenced employment on 16/05/2017 and his employment ceased on 31/07/2024. The complainant submits that he was unfairly dismissed.

Suggestions were made that there might have been other shifts available in the days, evenings, and nights for drivers, but he was told that this would only be decided end of August or September and the complainant was not advised as to what would happen during the time between the end of the run, he did on the 31/07/2024. On 26/07/2024 he was told by three employees that they heard that the complainant had resigned, and he had not. The complainant believed the respondent was communicating this to push him out of the company. On 30/07/2024 Mr Bartley said that the complainant was not entitled to redundancy as he had been employed for the route that was now gone. With no work forthcoming the complainant commenced part-time work with a different employer as he hoped that the respondent would sort out the matter. The complainant contacted the HR person Mr A who expressed surprise at what had happened. The following day there was an email from Mr Bartley offering some work with a tight deadline which involved longer hours at less pay and commencement on 12/08/2024. It was clear the respondent had no intention of retaining the complainant or paying redundancy entitlement. Any attempt to discuss things with them previously had been met with brush off tactics and vague promises.

The complainant was not cross examined on his evidence.

Summary of Respondent’s Case: CA-00065335-002

The evidence of Mr Bartley General Manager was that the complainant was an excellent employee and was also excellent with customers and was a true professional. The respondent became loss making in 2023 and applied for a national bus contract and they thought they would have to shut down, but discussions were entered into with the national body regarding available routes and it was hoped there would be a contract in place for them and it was signed on 26/10/2024. He said that at the time he was not able to confirm details of a contract for the complainant and there is a shortage of bus drivers across the country. It was his understanding that owing to the uncertainty that the complainant resigned his position and it had been planned to keep the complainant on after 01/08/2024 albeit he could not have told him what specific shift he would be working.

There was no cross examination of the Mr Bartley’s evidence.

Findings and Conclusions: CA-00065335-002

The complainant submits that he was dismissed unfairly, and the respondent denies that there was a dismissal and submits that the complainant resigned his position. As dismissal is in dispute the burden rests with the complainant to establish that his employment came to an end in circumstances amounting to a dismissal as defined by the Act. In UDD2338 Parkboro Development Ltd v Mariusz Witkowski the Labour Court set out

“There can be no absolute rules about (what) is, or is not, a dismissal and to a very large extent each case in which this point is argued requires to be determined on its own facts.”.

Section 1 of the Act sets out

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) 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…

It was not in dispute that the respondent did not receive any letter of resignation and that the complainant heard from other employees that he had resigned and informed Mr Bartley that this was not the case. It would appear that the complainant secured part-time employment which he commenced on 01/08/2024 as he believed there was no longer work for him and this appeared to be affirmed by his evidence of the conversation with Mr Y who worked in HR. While I note that the respondent submits that Mr Y was not acting in an official capacity, it was reasonable of the complainant to assume that he was engaging with the HR representative of the respondent when he spoke to him. An email followed very quickly, thereafter, the conversation with Mr Y on 09/08/2024 offering alternative work to the complainant from Mr Bartley. I note that this email does not make reference to any purported ‘resignation’ by the complainant previously and I find it more credible in all the circumstances that the complainant did not resign and that therefore a dismissal arose.

While there may have been a dismissal, it next needs to be examined whether it was an unfair dismissal. As the case law has established “Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair” (UDD2338 Parkboro Development Ltd v Mariusz Witkowski). Furthermore, this test which has been applied consistently most notably in Bank of Ireland v Reilly [2015] IEHC 241 using the approach of the Circuit Court in Allied Irish Banks v Purcell [2012] 23 ELR and in the circumstances of the instant case, there does not appear to have been anything in the behaviour of the Complainant that warranted a summary dismissal.

There is no doubt that the complainant was left with significant ambiguity as to whether he had a role at the respondent and it would appear that the respondent appeared to rely on ‘hope’ rather than ‘facts’ that the complainant had resigned his position. It may well have been the case that if the respondent had been forthcoming there may have arisen, at a later stage, a redundancy situation or that indeed there may have been suitable alternative work for the complainant, however, the complainant finished his shift on 31/07/2024 and the respondent failed to engage with him regarding the circumstances of his employment until after the complainant had left and taken up a position elsewhere. When the respondent did engage with him, they offered work effective 12/08/2024 but failed to acknowledge that the respondent had left the complainant without work since 01/08/2024 and the impact such circumstances would have on the complainant and no acknowledgement of their failure to engage with the complainant.

I note that no grievance procedure had been engaged with by the complainant, but I do not find that this was fatal to his complaint in all the circumstances. The respondent failed to engage with the complainant in a manner expected by a reasonable employer. It would appear similar to Parkboro Developments Ltd T/A Park Engineering v Mariusz Witkowski UDD2338 that

“the Respondent sought to evade the responsibility”;

and it was, therefore, reasonable for the complainant to conclude that his employment had been terminated. It was very clear from the evidence of the complainant and Mr Bartley that this was nothing to do with dissatisfaction with the complainant’s performance or work ethic, indeed the opposite appeared to be the case with significant mutual respect prior to the events that occurred. The respondent has not satisfied the burden to establish that dismissal was fair. In all the circumstances of the case I find that the respondent acted unreasonably, and it was reasonable of the complainant to assume that he was dismissed, and that the dismissal was unfair.

I find that the dismissal was unfair and taking note that the complainant secured immediate employment with no loss. I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. Compensation is therefore the appropriate redress in this case and as set out in Section 7:

7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: …

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and having regard to all the circumstances, I award the complainant €2,000 for the unfair dismissal.

Decision:

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

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.

CA-00065335-001

I find that the complaint is not well founded and disallow the complainant’s appeal.

CA-00065335-002

I find that the dismissal was unfair and award the complainant €2,000 which I find just and equitable having regard to all the circumstances.

Dated: 21-07-2025

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Redundancy, dismissal, tender