ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00049806

Parties:

	Complainant	Respondent
Parties	Nico Holloway	Citi Bus Limited trading as Dublin Coach

Representatives

Setanta Landers of Setanta Solicitors

Ray Ryan BL instructed by Dawson O’Toole Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014	CA-00061139-001	22/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973	CA-00061139-003	22/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00061139-004	22/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00061139-005	22/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00061139-006	22/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under Part 14 Section 103(55M) of the Health Act, 2007	CA-00061139-007	22/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00061139-008	22/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998	CA-00061139-009	22/01/2024
Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005	CA-00063591-001	21/05/2024

Date of Adjudication Hearing: 18/07/2024

Workplace Relations Commission Adjudication Officer: David James Murphy

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015 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.

CA-00061139-007 under the Health Act 2007 was withdrawn by the Complainant in submissions dated the 20th of May 2024. CA-00061139-009 under Employment Equality Act 1998 was also withdrawn by the Complainant in submissions dated the 20th of May 2024. As such decisions have not issued related to these complaints.

The Complainant’s legal submissions are for the most part very well drafted and I have referred to them extensively in the course of this decision. They are however, not always particularised to the Complainant’s case and it is not always clear where and how they apply to this matter. The Complainant’s representative was afforded an opportunity at summing up at the end of the hearing and was able to make oral arguments in the course of the hearing and I have tended to limit this decision to the arguments pursued at hearing. I do not highlight this issue to criticise the Complainant’s legal team. There is of course a difference in resources available to the parties and the WRC cannot award costs. Practitioners who represent employees on average salaries are both extremely important to the wider employment rights system and are not in any way supported in providing their services.

The Court of Appeal decision in Hosford v The Minister for Employment Affairs and Social Protection [2024] IECA 294 issued after the hearing of this matter. In advance of my finalising my decision I wrote to the Complainant’s solicitor referring to the decision and alerting them the approach I was considering under CA-00061139-001. The Complainant’s legal team replied and concurred with the position. The Respondent was cc’d on all of the correspondence.

Extensive evidence was given during the course the hearings much of which related to the roadworthiness or otherwise of the Respondent’s bus fleet. While I have given careful consideration to the submissions and to the evidence adduced at hearing by the parties I have not recorded all of that information in this decision. I have avoided providing a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held a follows:

“…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

As set out by MacMenamin J. in Nano Nagle School v Daly [2019] IESC 63, I am required to set out ‘such evidential material which is fundamentally relevant to the decision’ and I believe I have done so.

Background:

The Complainant is a South African national who was recruited to the Respondent in July 2023 to come to Ireland and drive buses.

The Complainant was employed by the Respondent as a bus driver from the 18th September 2023 until the 5th of January 2024 when he was dismissed by the Respondent.

The Complainant alleges that his dismissal was due to his having reported issues related to different vehicles that he had driven. The Respondent denies this and submits that reporting any issues with vehicles was a key responsibility of drivers, as wear and tear to their buses can be significant. The Respondent argues that they dismissed the Complainant because they believed he was trying to recruit drivers away to work in HGV driving which is higher paying.

Summary of Complainant’s Case:

Mr Setanta Landers represented the Complainant and made oral submissions on his behalf and cross-examined Respondent witnesses. He also submitted written evidence including defect sheets and photos of the Respondent’s buses. Written submissions were drafted by Mr David Byrnes BL, instructed by Mr Landers, but he did not represent the Complainant at the hearing.

The Complainant Nico Holloway gave evidence under affirmation. He outlined his background in coming to Ireland to work for the Respondent. He outlined the Respondent’s failure to allow him time to take proper breaks. He provided witness evidence as to the condition of the Respondent’s buses, many of which he considered to be in a state of disrepair and unsafe as well as photos he took at the time or obtained from colleagues. He outlined a number of occasions when he raised this either orally or through the “defect” sheets the Respondent required drivers to fill out each shift. He provided evidence of his performance in the role and of his experience of the performance review dated the 15th of December. He provided further evidence of his being dismissed on the 5th of January and the Respondent’s attempt to get him to return to South Africa immediately.

Lukas Badenhorst, who is another driver who was employed by the Respondent and then dismissed about eight weeks after the Complainant gave evidence under affirmation. Mr Badenhorst provided evidence of experience of the Respondent’s vehicles and his having raised issues with the conditions of the buses he drove via defect sheets. He also referred to photos he had taken over the course of his employment of the Respondent’s buses.

Mark Mayer who still employed as a driver gave evidence under affirmation. He started with the Respondent at the same time as the Complainant in September 2023. When he began driving he saw there were defects with the buses. They weren’t fixed but they still had to drive those buses. He experienced similar defects to the ones reported by the Complainant and Mr Badenhorst. Only recently he was pulled over by the RSA at a checkpoint who noted a number of defects but let him drive away with passengers on the bus. He is leaving the Respondent’s employment and is on sick leave. The Complainant did not ask him to leave.

Summary of Respondent’s Case:

The Respondent was represented by Mr Ray Ryan BL who made oral and written submissions on their behalf and cross examined the Complainant’s witnesses. The Respondent disputes that there is any sort of safety concern related to their bus fleet. They provided the Commercial Vehicle Roadworthiness Testing (“CVRT”) inspection reports as proof of this.

Mr Wes Gill gave evidence under affirmation he is the Respondent’s Training and Compliance Manager and drove for them for 4 years before going into that role. He had been a driver for other companies before that and has over 20 years’ experience in the transport sector. He provided evidence as to the Complainant’s onboarding and training in September 2023 as well as of an incident where in November where he went off route. The Complainant later went on an unauthorised route around Ennis with low overhanging branches which could damage or smash a window. These issues were raised with him by Mr Gill at a PR meeting in December. Mr Gill provided evidence as to the role of the driver in monitoring a bus’s condition. They are supposed to do a walkaround check and record anything in the defect book. Defects are reviewed by the mechanics and must be addressed. There is a lot of wear and tear on buses which are doing over a thousand kilometres a day. Mr Gill alleges that the Complainant’s performance went downhill after performance review. The day after the review he was angry and made clear he didn’t want to move to Ennis where they were planning on locating him. They agreed to put him on the M9 route instead and then he began to swap shifts. Around New Year’s Day another driver, Mr Peck, came to him to say he had been approached by the Complainant and encouraged to leave. A collective exodus would impact the Respondent’s ability to deliver on their license.

Gareth Jennings gave evidence under affirmation, he is the Respondent’s Service Delivery Manager since March of 2022. He outlined the process involved in recruiting the Complainant and others from South Africa. He gave evidence of the Complainant going off route on the 23rd of November and the potential implications of that and his view of his performance after that. He made the decision to dismiss the Complainant with the Respondent’s HR manager after he was told that the Complainant had been encouraging drivers to leave. The decision was unrelated to any of the matters the Complainant argues are protected disclosures. A group of employees leaving en masse would have created significant issues for the Respondent. Mr Jennings provided information on the working practices of the Respondent, their routes and driving times as well as their process for maintaining and repairing the fleet.

Kieron O’Sullivan gave evidence under affirmation. He is the General Manager and a Director of the Respondent which is a family business that he has been involved in for many years. He gave an overview of the Respondent’s history and operations and the work of maintaining its fleet of buses. He outlined the RSA audit process which reviews the Respondent’s safety monitoring systems as well as the process of spot checks.

Findings and Conclusions:

Minimum Notice & Terms of Employment Act 1973 - CA-00061139-003

The Complainant alleges that he was dismissed without any statutory notice in breach of Section 4(1) of the Minimum Notice and Terms of Employment Act 1973. The Complainant had been in continuous service for a period of thirteen weeks or more and was entitled to a week’s notice.

The Respondent provided an email indicating that they did pay him a week’s notice. The Complainant did not outline any failure to pay him notice while he was giving evidence.

In the circumstances I do not find that the Complainant was not paid the notice owing to him.

Organisation of Working Time Act 1997 - CA-00061139-004 CA-00061139-005

The Complainant alleges he was required to work without breaks in two overlapping complaints. He did not detail these complaints ahead of the hearing but instead provided oral evidence.

His complaint relates to the times he was put on the Portlaoise route which he states involved a 12 hour shift. The route started at Dublin Airport and his stops were Rathgar, Naas, Newbridge, Monasterevin, Ballybrittas and Portlaoise. He did this this route twice each day over the course of 12 hours, driving directly to the airport without picking up passengers. He alleges that he did not get a sufficient break in between the two round trips when he arrived into Portlaoise.

The Respondent is required under the act to keep records of break times and this tends to put the burden on the Respondent to establish break times were adhered to. They have not provided such records however Mr Gareth Jennings the Service Delivery Manager gave evidence under affirmation and outlined that the Portlaoise assignment the Complainant describes above would only take 8 hours and that there is time for a one-hour break in the middle.

I prefer the evidence of Mr Jennings and am not satisfied as to the Complainant’s evidence as to how long the Portlaoise route would take. I do not find that the act was breached as alleged by the Complainant.

S.I. No. 36/2012 - European Communities (Road Transport) (Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 CA-00061139-008

The complaint submitted a complaint under the above SI that he was not notified of the working hours applicable to the road transport section. The narrative of the complaint provides that he “was required to work excessive hours in dangerous vehicles without proper working tachographs.”

The Complainant’s submissions simply stated that evidence would be adduced at the hearing. This complaint was particularised in by his representative who made oral submissions that the complaint related to a breach of the requirement to provide the Complainant breaks from work. This is outlined in regulation 8 which states: No person performing mobile road transport activities shall work for more than 6 consecutive hours without a break. Where the working time of a person performing mobile road transport activities exceeds 6 consecutive hours but does not exceed 9 consecutive hours, the person shall be entitled to a break lasting at least 30 minutes interrupting that time. Where the working time of a person performing mobile road transport activities exceeds 9 consecutive hours, the person shall be entitled to a break lasting at least 45 minutes interrupting that time. Each break may be made up of separate periods of not less than 15 minutes each. An employer shall ensure that this Regulation is complied with in the case of each mobile worker employed by him or her.

As outlined under complaints 4 and 5 I conclude that on the evidence available to me that the Complainant was allowed breaks at least every 6 hours. The Complainant did not refer to any other alleged period of working without breaks aside from the Portlaoise route. I also note the Respondent has provided time sheets indicating the Complainant did not work in excess of the limits required by Regulation 5.

Protected Disclosures Act 2014 (“the 2014 Act”)- CA-00061139-001

The Complainant alleged that he made a series of protected disclosures in November and December 2023 for which he was penalised.

Section 5 of the Protected Disclosures Act 2014 (“the 2014 Act”) provides that a “protected disclosure” means a disclosure of information that in the reasonable belief of the worker tends to show one or more relevant wrongdoings. Relevant wrongdoings include situations where a person has failed, is failing or is likely to fail to comply with any legal obligation, that the health or safety of any individual has been, is being or is likely to be endangered, that a breach of EU Law has occurred, is occurring or is likely to occur, including with relation to EU transport safety laws.

The Complainant outlined in evidence the following disclosures of information which he says are protected disclosures.

On the 27th of November he raised issues about a vehicle engine with the duty manager.

On the 4th of December he experienced issues with the doors malfunctioning and opening on the motorway. He phoned duty manager and was told to close the door and move on. He had to do this manually and a passenger offered to help.

On the 12th of December he filled out a vehicle defect list related to a bus and highlighted windscreen wiper failures and doors failing to close properly, amongst other issues.

On the 16th of December he filled out a vehicle defect list and identified that that the door was not closing properly and the mirror light was not working, amongst other issues.

On the 17th of December he says he filled out a vehicle defect list and identified that that the door was not sealing properly, a rear brake light was out, his seat belt was not working and the mirror was secured with cable ties, amongst other issues.

On the 18th of December he was driving and the windscreen wipers on the bus were interlocking. This meant they didn’t clear the rain off the vehicle which he felt was very unsafe. He reported this again to the duty manager. He was told to just drive the vehicle.

On the 24th of December he was driving with a cracked and chipped windscreen which affected his visibility. He again called it in and was told to continue.

The above interactions were with the different duties managers. The Complainant could not always recollect who was on duty in the course of different interactions but could name some of them. The Complainant also referred to having raised issues with Mr Jennings about the vehicles but was not specific as to when and what was said.

The Complainant’s evidence was that he was generally concerned about the safety of the buses.

The Complainant seeks to rely on the Supreme Court decision in Baranya v Rosderra Irish Meats Group Ltd. [2022] 2 I.R. 97 which concluded the following when determining whether an employee had made a protected disclosure:

“words expressly or by necessary implication amount to an allegation tending to show” the relevant wrongdoing and the allegation must “contain such information – however basic, pithy or concise – which, to use the language of s. 5(2) of the 2014 Act, “tends to show one or more relevant wrongdoings” on the part of the employer: to adopt the words of Sales LJ regarding a parallel provision in the corresponding UK legislation, the disclosure must have “sufficient factual content and specificity for this purpose: see Kilraine v. Wandsworth LBC [2018] ICR 1850 at 1861, even if it does merely by necessary implication.”

In following approach taken in Baranya I am of the view that the Complainant’s communications demonstrate that he was concerned as to the roadworthiness of the Respondent’s vehicles as he was operating them. Such communications, particularly taken together would tend to show to one or more relevant wrongdoings, in particular that a person has failed, is failing or is likely to fail to comply with any legal obligation and that the health or safety of any individual has been, is being or is likely to be endangered.

The Respondent has raised serious queries about the defect sheet dated the 17th of December related to a bus with fleet number 156. The Complainant evidence is that he submitted this sheet to the Respondent and it is a protected disclosure. Mr Jennings has stated that he believes it is fraudulent. The Respondent established in oral evidence that the other driver whose name and signature are on the sheet was not on the route where that bus was assigned and could not have driven that bus on the 17th of December. The Complainant was not able to address this issue when put to him in cross examination. I am satisfied that I should not rely on the document when determining that the Complainant made protected disclosures on that or other occasions. The issues highlighted by the Respondent do impact my view of the Complainant’s evidence more generally. However, those concerns do not lead me to conclude that the Complainant made no protected disclosures on other occasions.

The Respondent disputes that the above matters constitute protected disclosures and refer to section 5(5) of the 2014 Act. A matter is not a relevant wrongdoing if it is a matter which it is the function of the worker or the worker’s employer to detect, investigate or prosecute and does not consist of or involve an act or omission on the part of the employer. However I am of the view the Complainant is raising the Respondents action of putting vehicles on the road which he was concerned about.

In the circumstances I am satisfied that the Complainant raised protected disclosures in late November and in December 2023.

The Complainant submits that he suffered penalisation by way of a negative performance review in late December. As per Section 12(7)C of the 2014 Act it is for the Respondent to establish that the Complainant’s negative performance review was based on duly justified grounds.

Mr Wes Gill, the Respondent’s Training and Compliance Manager, gave evidence that he conducted the performance review and raised that the Complainant had gone off route twice and that he was not dressed appropriately at work. The first instance of the Complainant going off route was the most significant in that on 22nd of November 2023 the Complainant abandoned most of his route from Ennis and went to Dublin via the M6 rather than the M7. The second instance was less serious but was after he had already been pulled up on the previous instance. On that occasion he used a boreen road around Ennis which isn’t appropriate while driving a coach. Mr O’Sullivan and Mr Jennings also provided evidence that matter of the 22nd of November was a serious issue for the Respondent. In the circumstances the Respondent has established duly justified grounds for a negative performance review.

The Complainant has submitted overlapping complaints under both the Protected Disclosures Act and Unfair Dismissals Act related to his dismissal which he submits was in retaliation for him having raised protected disclosures.

The Court of Appeal has considered the issue of which section a dismissal should be challenged under in Hosford v The Minister for Employment Affairs and Social Protection [2024] IECA 294.

At paragraphs 6 and 7 Justice Hyland concluded that:

Part 3 is headed up “Protections” and s.12 is headed up “Other protection of employees from penalisation for having made protected disclosure”. Its application is clearly limited to employees. Section 12 provides: “(1) An employer shall not penalise or threaten penalisation against an employee, or cause or permit any other person to penalise or threaten penalisation against an employee, for having made a protected disclosure. (2) Subsection (1) does not apply to the dismissal of an employee to whom section 6 (2)(ba) of the Unfair Dismissals Act 1977 applies. (3) Schedule 2 shall have effect in relation to an alleged contravention of subsection (1)”

Section 6(2)(ba) of the Unfair Dismissals Act 1977 as amended (the “UDA”) provides for the case where an employee alleges dismissal, including constructive dismissal, on the basis of the making of a protected disclosure. In other words, s.12(1) is about penalisation short of dismissal. On the other hand, where an employee complains that they were unfairly dismissed due to a protected disclosure being made (whether an outright dismissal or a constructive dismissal, as Mr. Hosford alleges occurred in this case), an employee should invoke the UDA rather than s.12(1).

As such I have not considered the Complainants dismissal under the 2014 Act.

CA-00061139-006 under the Unfair Dismissals Act 1997 (“UDA”).

The Complainant worked for the Respondent for roughly 15 weeks before his dismissal. Section 6(1) of the UDA provides that the dismissal of an employee is presumed to be unfair unless the employer justifies the decision with reference to substantial grounds. However, this protection is only accrued by an employee after one year’s service.

Section 6(2) provides a number of reasons for which an employee cannot be dismissed. There is no minimum period of service required for an employee to challenge dismissal for a prohibited reason. Section 6(2)ba provides that making a protected disclosure is a prohibited reason for dismissing an employee.

As outlined in CA-00061139-001 above I am satisfied that the Complainant made protected disclosures over the course of late November and most of December 2023. It is common case that he was dismissed on the 5th of January 2025.

Burden of Proof

As per Section 6(2)ba of the UDA if an employee alleges that they were dismissed for a prohibited reason, the burden is of proof is on them to establish they were dismissed for the reason identified.

While the Protected Disclosures (Amendment) Act 2022 reversed the burden of proof in complaints related to Section 12(1) of the 2014 act it did not amend the UDA. As such the burden still rests with the Complainant in complaint CA-00061139-006 on a plain reading of the UDA.

While not discussed in the hearing, the Complainant’s legal submissions sought to address this by referring to the text of the underlying Directive 2019/1937 on the protection of persons who report breaches of Union law (“the Directive”).

The Directive states at Article 21 (5) that In proceedings before a court or other authority relating to a detriment suffered by the reporting person, and subject to that person establishing that he or she reported or made a public disclosure and suffered a detriment, it shall be presumed that the detriment was made in retaliation for the report or the public disclosure. In such cases, it shall be for the person who has taken the detrimental measure to prove that that measure was based on duly justified grounds.

The Directive provides enhanced protection from retaliation, including dismissal, by placing the burden on the employer in circumstances where an employee has established that they have made protected disclosures as per Articles 4 and 5 of the Directive. Article 19 of the Directive explicitly requires member states to prohibit retaliation by way of dismissal.

The Complainant submits that the directive was incorrectly transposed when the 2022 Act, which is the act by which the Directive was given effect, failed to amend the UDA. They rely on the primacy of EU law and indicate that the law should reflect that where an employee has established that they have both made a protected disclosure and suffered a detriment (i.e. dismissal) the burden should be on the employer to prove that their decision was based on duly justified grounds.

As per the decision in the Court of Appeal in Hosford Ireland did not give effect to Article 21 in relation to dismissals by way of Section 12 of 2014 Act. The only route to challenge such a dismissal at the WRC via the UDA which does not purport to transpose the Directive and does not, on a plain reading of the legislation, provide for the presumption in relation to Article 21.

If an employee wishes to challenge a dismissal which they say is retaliatory for having made a protected disclosure, with the benefit of presumption outlined in Article 21, they do have the right of action in tort outlined in Section 13 of the amended 2014 Act. However, this must be pursued via the Courts and not the WRC. It is clear that Ireland has not transposed protections from retaliation by way of dismissal in the same way it had transposed the protections against retaliation short of dismissal.

The Complainant has referred me to the decision of the Court of Justice of the European Union (CJEU) in Minister for Justice and Equality, Commissioner of An Garda Síochána (“AGS”) v. Workplace Relations Commission (C-378/17). That case concerned a complaint under the Employment Equality Act, Commissioner of An Garda Síochana and Minister for Justice, Equality and Law Reform v Roland Boyle (“Boyle”), which considered age limits in the recruitment of new Gardaí. These age limits were set out in statute and the question arose whether the WRC had jurisdiction to disapply national law as a statutory tribunal. The CJEU determined that it did.

The question considered in the above judgement was different to issue the Complainant has raised. In Boyle the relevant EU directive had been transposed into national legislation which explicitly set out that it was the transposition of that directive. The tribunal was given jurisdiction to enforce the legislation as part of that transposition. The question arose as to whether the tribunal could ignore (i.e. disapply) a separate piece of legislation which prohibited the recruitment of Gardaí over 35 when exercising its role in giving effect to that directive. That action is distinct from a tribunal giving effect to a part of a directive which has not been transposed into a specific piece of legislation when considering a complaint under that legislation. The Complainant has not outlined a direct effect argument in relation to his claim under the UDA and Article 21(5).

The WRC as a non-Court Adjudicative Body has no inherent jurisdiction or authority. The Oireachtas has not provided any role for the WRC to enforce or give effect to the Directive when considering a UDA complaint. It passed the Protected Disclosures Amendment Act 2022 with the intention of giving effect to the Directive but that act does so by way of the 2014 Act and not the UDA. The UDA does provide for certain protected disclosure related protections, but these predate the Directive. In the circumstances and on review of the case law identified to me by the parties I am not satisfied that I have the authority to insert the presumption created by Article 21(5) in the course of a UDA complaint.

The Complainant has also made submissions related to the common law principal of peculiar knowledge and dismissals which in light of the issues outlined above I believe are particularly useful.

A direct extract from their submission is below.

The common law peculiar knowledge principle is consistent with the above ECHR Principle 25 and Article 21(5) of the Directive and it was marshalled by the Labour Court to reallocate the burden of proof to the respondent in the oft cited whistleblower penalisation case of O’Neill v. Toni and Guy Blackrock Ltd. [2010] 21 E.L.R. 1.

The principle underpinning this proposition is well-established and in the context of whistleblower claims, the Labour Court stated: “It is, however, settled law that in civil matters there is an exception to this rule known as the peculiar knowledge principle. This is a rule of evidence which provides that where it is shown that a particular fact in issue is peculiarly within a defendant’s knowledge the onus of proving that fact rests with the defendant”

“In the instant case what is at issue is the motive or reason for the claimant’s dismissal. That is to be found in the thought process of the decision-makers at the time the decision to dismiss the complainant was taken. That is something which is peculiarly within the knowledge of the respondent. It would be palpably unfair to expect the claimant to adduce direct evidence to show that the respondent was influenced by his earlier complaints in deciding to dismiss him. Conversely, it is perfectly reasonable to require the respondent to establish that the reasons for the dismissal were unrelated to his complaints under the Act.”

The Respondent has also made submissions on Toni and Guy and do agree that it should be applied to this matter. They are keen to draw attention to the Court’s process in placing the burden on to the Respondent, in that the Court did not just determine that the protected act must have occurred for the burden to shift but also then considered, having regard to the circumstances of the case, whether it was apt to infer from subsequent events that the complaints were an operative consideration leading to dismissal. On my own review of the Toni and Guy it would seem that the Court applied a relatively low bar for that complainant to meet this second limb.

I accept I should follow the position as set out by the Labour Court and I agree with the Complainant that it is consistent with protection provided by Article 21(5), at least in the context of this case. The Complainant has established that he made protected disclosures and while he was subject to legitimate performance criticisms there was a gap between those issues arising and the decision to dismiss which was purportedly made on performance grounds. The Respondent has accepted there were other reasons than performance reasons that led them to dismiss the Complainant which were not disclosed to him at the time. In the circumstances this places an obligation on the Respondent to establish that their decision to dismiss was not caused by the Complainant’s protected disclosures.

The Decision to Dismiss

Mr Gareth Jennings is the Respondent’s Service Delivery Manager. He ultimately made the decision to dismiss the Complainant with the Respondent’s HR manager. He outlined that there had been a severe driver shortage, so much so that the Respondent had engaged a specialist recruitment agency to hire in drivers from South Africa. The agency does vetting and arranges travel. When the drivers arrived the Respondent arranged accommodation.

When the Complainant went off route in November Mr Jenning’s evidence was that he was made aware of it and considered it a significant issue. The Complainant failed to stop and pick up passengers at Bunratty, Limerick Quay, Limerick University and Annacotty before proceeding to Dublin. The Complainant took a totally different motorway.

After this issue was raised with him his evidence was that the Complainant went off route again and took a boreen road around Ennis. After these issues was raised with the Complainant Mr Jennings believed that the relationship deteriorated.

The decision to terminate was made on the 5th of January. Either early on the 5th or late on the evening of the 4th Mr Jennings says he became aware of an allegation or a further allegation that that the Complainant was planning on leaving and trying to recruit other drivers to another company. He understood that the Complainant was trying to organise a mass exit of 6 or so employees which would have posed an existential crisis as it would have meant the Respondent could not service some routes at the agreed level and they could lose their NTA license to operate those routes. These issues and the Complainant’s previous performance culminated in a decision to dismiss.

Mr Jenning’s evidence was that the decision was unrelated to any issues that Complainant was raising about the buses. There is nothing unusual about a driver filling in a defect sheet, it is part of the role and the company requires drivers to do so. Their buses are doing significant mileage each day and as part of that there is ongoing maintenance and repair work. There is a lot of wear and tear to the buses but this is normal. Drivers do a walk around when they arrive to a bus and any defects are marked in the defect book which is collected by the duty manager. The buses then go to engineering who prioritise and complete repairs.

There is a dispute in evidence as to condition of the Respondent bus fleet with Mr Jennings, Mr Gill and Mr O’Sullivan all outlining that it is roadworthy and Mr Holloway, Mr Badenhorst and Mr Mayer disputing this. I am of course alive to the possibility that there is a difference of view as to what constitutes an urgent repair which would require the bus to be taken off the road and what is normal wear and tear which does not reasonably require a bus to be taken off the road pending repair and that this difference may explain aspects of this dispute.

Mr Jennings accepts that he booked a flight for the Complainant when he dismissed him and planned to deduct the costs from his wages. He believes it was appropriate as the Complainant had been brought to Ireland by the Respondent and was now being dismissed. After the Complainant challenged this action via his solicitor he cancelled the flight.

Mr Gill and Mr O’Sullivan provided evidence which supported Mr Jennings’ version of events. They are both of the view that the Respondent want drivers to report problems with the buses and that is part of their role. They are in a regulated industry and are subject to CRVT inspections and audits. While they dispute the allegations made about the vehicle fleet they were also clear that they would not benefit from discouraging drivers in raising issues with their buses. As Mr O’Sullivan put it they would “only be codding themselves” as defects do not go away on their own and need to be addressed one way or another. Similarly, they are both of the view that a group of drivers leaving the Respondent together would constitute a crises for the Respondent.

Mr Gill provided further evidence supporting Mr Jenning’s view that there was an overall deterioration in the relationship after the 15th of December. Mr Gill also gave evidence that a driver, Mr Peck, approached him around new years to inform him that the Complainant has sought to encourage him to leave and drive trucks for another company. He asked him to send him an email confirming the same but he did not send it until the 10th after the Complainant had been dismissed.

The Complainant was cross examined by Mr Ray Ryan for the Respondent on the allegation that he was encouraging people to leave. He first stated that he did not seek other work until after he was terminated but then accepted that he had been in touch with a recruitment agency seeking work before that date. After that admission he again disputed having sought work before his dismissal.

The Complainant accepts he was speaking to other drivers, including Mr Peck, but his evidence was that he trying to get them to confront the Respondent together on the issues they had with the buses. Mr Ray Ryan put it to the Complainant that he was asking these drivers to leave and the Complainant did dispute this. Mr Ryan came back to the issue a number of times over the course of his cross examination and one occasion the Complainant did not dispute the allegation that he was trying to encourage his colleagues to leave and stated that “I spoke to them but how can I change anyone’s mind if they’re going to stay they’re going to stay.”

After the Complainant’s dismissal his evidence was that he went to work driving HGVs on considerably better pay. Mr O’Sullivan evidence was also that the pay for HGV driving is significantly better and this a business difficulty facing the Respondent.

On review of the evidence available to me on the Complainant’s dismissal I am satisfied that the Respondent did not dismiss him due to the protected disclosures he had identified.

CA-00063591-001 under the Safety, Health & Welfare at Work Act, 2005 (“the 2005 Act”).

Section 27 of the 2005 Act prohibits penalisation of employees for having acted in compliance with the 2005 Act, exercising any right under the act or making a complaint to their employer as regards any matter relating to safety, health or welfare at work.

As the Complainant has pointed out in their submissions there is a broader scope of protected actions under the 2005 Act than under the 2014 Act or Section 6(2)ba of the UDA. I am satisfied that the disclosures the Complainant made in November and December 2023, as outlined in CA-00061139-001, were protected under the 2005 Act.

While this complaint is under a separate piece of legislation to CA-00061139-001 and CA-00061139-006 it essentially mirrors those complaints in both the factual matrix and issues to be determined by me in the course of this decision. The Complainant has established a series of protected actions in November and December 2023. He has alleged he was penalised for these by way of a poor performance review in December 2023 and by way of dismissal in January 2024.

On review of the facts surrounding the poor performance review he experienced in December 2023 I do not conclude that this was penalisation as prohibited by the 2005 Act. I do so with reference to the findings already reached in CA-00061139-001, in which case the burden was on the Respondent to prove contrary.

On review of the evidence provided to me related to the Complainant’s dismissal I do not conclude that this was penalisation as prohibited by the 2005 Act. I do so with reference to the findings already reached in CA-00061139-006. The approach to the burden of proof in that matter mirrors that required under the 2005 Act. The Toni and Guy case relied on in CA-00061139-006 relates to a complaint under the 2005 act.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of 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-00061139-001