ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00056121

Parties:

	Complainant	Respondent
Parties	Pawel Walewacz	Citi Bus Limited Dublin Coach

	Complainant	Respondent
Anonymised Parties	{text}	{text}

Representatives

Terence F Casey & Co LLP

Dawson O'Toole Solicitors

Complaints:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00059906-001	10/11/2023
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00059906-002	10/11/2023

Date of Adjudication Hearing: 16/04/2025 and 29/09/2025

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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 from parties were received they were exchanged. The complainant gave evidence under affirmation and Mr Wes Gill Training and Compliance Manager gave evidence under Affirmation and Garreth Jennings Manager was in attendance. A translator was also in attendance under affirmation for the complainant.

Background:

The complainant submits that he was unfairly dismissed and that there are monies owing.

Summary of Complainant’s Case: CA-00059906-001

The complainant submits that he commenced employment on 09/04/2019 and his employment ended on 23/05/2023 and his earnings were €500 gross weekly and he was a bus driver. The complainant had an unblemished work record. He submits that his dismissal was unfair and that there are monies properly owing and the respondent paid him less than due during the cognisable period.

In February 2023 the complainant was advised of a matter regarding vehicles damaged by him in September 2022 and that there may be further meetings about it. The complainant received an email inviting him to an investigative meeting 14/05/2023 conducted with HR manager and Wess Gill and he was told of a minor traffic accident of 01/09/2022 and the complainant requested a copy of the cctv but did not get it. The complainant was told he was also being investigated about another incident on 25/09/2022 and was not provided with an opportunity to review the cctv of this alleged other incident.

On 10/05/2023 the complainant was rostered to do a bus journey and contacted the respondent to say he could not drive the bus as it was damaged and the seal door for the emergency exit was broken. The complainant was sent home albeit he offered to bring the bus to be repaired and he was available for work. He was informed on 23/05/2023 that he was to be dismissed and could appeal this decision. The appeal was heard by and the complainant attempted to explain matter, but the respondent did not want to hear his version and he was told he could bring it up at appeal. There was significant delays in between the incidents and the dismissal and he was not provided with any cctv and the same employees were involved in the meetings that had investigated him. There is nothing provided for that allows for gross misconduct for not reporting an incident such as these and the sanctions were disproportionate. The complainant did not have an opportunity to deal with the allegations against him. If there were claims lodged against the insurance company regarding the claims by drivers he could have assisted the respondent but was not asked to do this. There was inexcusable delay in dealing with matters. The letter of 09/06/2023 clearly identifies 2 incidents whereas the issue for which he was dismissed was about one incident namely that of 25/09/2022 and the complainant is of the view that no damage took place and he did not get to clarify matters. The respondent deviated from their own policies.

Complainant Evidence:

He was out of work for 9 weeks after dismissal and took up another role and there was no loss of earnings incurred. He had worked for 4 years and had a good history and had an accident on 01/09/2022 and reported that incident. On 25/09/2022 he was driving a bus and was trying to park and after he parked he noticed he parked very close to another car. He wondered did he damage it and investigated and saw he did not and asked the 3rd party were they ok and they asked could he help move their car and pushed the other vehicle out and no damage was incurred and there was no contact with the other car.

This incident was then brought to his attention in February 2023 and he explained that he was not aware that he had made contact with this other car and he believed they accepted his recollection of events at the time. You cannot see that he made contact with a vehicle and they mentioned that there might be pay deductions. It was explained to him it was disciplinary and he may have argued with them that he disagreed but he was trying to explain that he never damaged the bus and was not shown photos and did not leave the meeting or behave disrespectfully and said good bye. He thought that at the appeal meeting the cctv would be reviewed and a decision was made.

The complainant had been absent on leave from work 13/11/2022 till around 02/01/2023 and never got an updated handbook. He got paid for hours worked and there was overtime for many years that accrued and he knows he is paid per trip and this is in his contract. He believed there were 39 days where he worked extra 1.25 hours over the years.

Cross Examination of Complainant:

The complainant confirmed he signed for a handbook on 09/04/2019 and this was for the 2017 handbook and he did not receive any handbook that was issued more recent to that. He knew he had to report any accident and he did not know it was gross misconduct and he did not say that at the meeting that he did not know it was gross misconduct as he was told he should listen and he could add anything else at the appeal meeting. He always felt he had been honest and found it very stressful. He was trying to tell them that he did not know he had anything to report as did not know he had an incident. He was told that the driver had complained and never denied it happened. If when parking your bus you park close to someone then you check and he did and there had been no contact with the vehicle. He did not believe there was anything to report by parking close to a vehicle. The cctv shows shaking but it may have been shaking from being paused. He had been honest about the facts and when he had to pay for damages caused with the incident of 01/09/2022 he did not complain about this. There was no contact with the vehicle of 25/09/2022.

Over the years, he never raised the matter of the traffic delays as overtime as a grievance and never thought he would get fired. He was told they would investigate matters regarding the September 2022 incidents in February 2023 and then nothing happened. Then 10 minutes after he refused to drive a bus he received notification of dismissal. The audio recording of the dismissal meeting highlights that he was not disrespectful and he did not walk out of the meeting and he was not allowed to say anything as he was told “this is not the time or place you are responsible and they’ll be in contact with you”.

Summary of Respondent’s Case: CA-00059906-001

The complainant was employed as a coach driver and was involved in two traffic accidents on 01/09/2022 and 25/09/2022. The second incident was not reported to the respondent as per the handbook and the complainant was dismissed for gross misconduct and failure to report immediately any damage caused by him and failure to report any incident while driving a vehicle whether or not there was personal injury. He appealed the decision and the appeal was not upheld. The complainant was afforded fair procedures. The respondent also submitted photographs of the incident of 25/09/2022.

The complainant was invited to an investigative meeting held 11/05/2023 with Mr Gill in attendance and the complainant was told he could have someone in attendance at the meeting. A further meeting took place on 17/05/2023 with a disciplinary outcome meeting on 23/05/2023. The complainant was issued a letter dated 23/05/2023 advising he was dismissed and referring to accident on 01/09/2022 and 25/09/2022 and that failure to report immediately damage and failure to report an incident was gross misconduct and that he had five days to appeal and in a letter dated 09/06/2023 the complainant’s appeal was not upheld as “outlined in our employee handbook” failure to report an accident is gross misconduct and that they recognised he had reported other accidents but this accident could not be ignored and was signed by a Duty manager and HR Manager.

Evidence of Mr Wes Gill

Mr Gill said he is Training and Compliance Manager and the complainant had 2 accidents. It is standard procedure for employees to report any accidents which the handbook refers and the complainant had been provided with this and the complainant had not reported it and had damaged a vehicle, and the other driver reported it. The normal procedure was followed with investigating and the cctv footage and photographs were shown to the complainant and he denied at the meeting hitting the vehicle on 25/09/2022 and denied it was an accident. It shows him passing the car and showed him impacting the car that was stationary. They were shocked that he denied there had been an accident. After the investigation meeting he was brought to disciplinary and was told that taking it all into consideration he was responsible and he was in denial and argumentative and left before the meeting concluded. He said he had nothing to report and did not want to be there. The decision was taken to dismiss him and letter of dismissal issued by the respondent on 23/05/2023. The key reason for the dismissal was the accident of 25/09/2022 and the denial of the accident despite what the evidence showed and that he had an obligation to report it and there was a lack of trust. The complainant appealed the decision and the complainant had been dismissive, argumentative and belligerent at the meeting.

In response to the complaint about payment the complainant is paid for a trip undertaken and the rate includes if he is stuck in traffic and delays are all included in the trip rate and that is the norm in the industry.

Cross Examination of Mr Gill

The complainant had an incident in 2022 and then he was on parental leave and there had also been an incident early September 2022. They were trying to catch up with the various investigations and there were delays and they only got to talk to him about it in February 2023 as he had been on leave from November till end December 2022. There was also no HR person to deal with matters at the respondent and he did not know if anyone had spoken to the complainant. The complainant was shown cctv and photos and he did not know if the complainant had requested the cctv. There was no insurance claim from the third party and there is no active claim. Mr Gill was not directly involved in the appeal and the accidents were not major. Mr Gill could not confirm if the complainant got an updated version of the handbook that mentions failure to report incidents is gross misconduct. Mr Gill’s role was to investigate for which he did a verbal report and discussed it with others never provided an investigation report but discussed it with HR as part of the investigation. The file was then passed to the HR person but they left and everyone was trying to do other jobs. The incident was not considered a priority as it was a minor accident and there were no minutes and there was no investigation between October 2022 to May 2023.

Findings and Conclusions: CA-00059906-001

The complainant submits that he was dismissed unfairly and the respondent submits that the complainant was dismissed and it was a fair dismissal for gross misconduct.

Section 6 sets out:

.—(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.

Section 6(4) provides that

Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

S 6((7)

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

Redress for unfair dismissal is set out Under S 7 which provides that

…—(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:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(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 the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

It was not in dispute that the complainant was involved in an incident on 01/09/2022 while working and another incident occurred on 25/09/2022 and that the respondent did not advise the complainant that they were investigating matters until February 2023 and issued a decision to dismiss on 23/05/2023 almost 8 months after the second alleged incident. It was not in dispute that the complainant had received a handbook and that the respondent could not confirm that it was the same handbook that referenced that failure to report an incident was regarded as gross misconduct.

I note the complainant’s evidence was that he did not report the incident of 25/09/2022 as he did not regard it as an incident as he did not believe he made contact with the other vehicle after he got out of the bus to check. His evidence was that he was not aggressive at the meeting with the respondent and did not leave the meeting and when he tried to interject he was told that he could bring that up at appeal. This had been in conflict with the respondent’s submission that he was belligerent. An audio recording of the meeting would appear to support the complainant’s version of the meeting.

Cassidy v Shannon Castle Banquets and Heritage Ltd [2000] ELR 248 and Mooney v An Post 4 IR 288 set out the importance of fair procedures and British Leyland UK Ltd v Swift [1981] IRLR 91 outline that

“If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair”.

In Bunyan v. United Dominions Trust (1982) IRLM 404, the well-established principle is set out that

“..fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved.”’

There was a significant passage of time between the incidents of September 2022 and an investigation in February 2023 and a decision to dismiss in May which appears to be because the incidents were regarded as minor by the respondent. If the incidents were considered minor, it was unclear why the decision was taken to dismiss after such a significant period of time. It was also evident from the audio recordings of the meeting with the complainant that his attempts to interject with his version of events were dismissed and the complainant was not provided with all the relevant information. I find in all the circumstances that decision to dismiss was not the decision of a fair and reasonable employer and I find that the decision to dismiss was unfair.

Redress for unfair dismissal.

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:

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

In all the circumstances including that the complainant secured employment I find that the redress of compensation is the most appropriate and as the complainant did not incur any loss in earnings I award the complainant 4 weeks remuneration which is €2,000 gross.

Summary of Complainant’s Case: CA-00059906-002

The complainant submits that there are monies owed and additional time incurred has not been paid for. It was submitted that the drivers are paid per trip but this does not include traffic delays and there has been significant traffic delays incurred on occasion.

Complainant Evidence:

Cross Examination of Claimant:

Summary of Respondent’s Case: CA-00059906-002

It was submitted that the complainant presented his case on 10/11/2023 and during the cognisable period there was no monies properly payable to the complainant. Without prejudice to the above the complainant did not submit details of any monies properly payable and no reasonable cause was given to extend the time. The complainant was paid per trip basis in accordance with is contract of employment and this is the industry norm within the sector. Additional hours may be required of employees as per the needs of the business. Case law cited was Adj-00027467, Health Service Executive v McDermott (2014 IEHC331).

Evidence of Mr Wes Gill

Cross Examination of Mr Gill

Findings and Conclusions: CA-00059906-002

The complainant submits that there are monies owing for overtime worked when there were traffic delays. The respondent submits that the contract provides that there are expectations that additional hours are worked and that there are no monies properly payable for the cognisable period.

S1(1) provides

"wages", in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise, and

Section 5 sets out

Regulation of certain deductions made and payments received by employers.

5.—(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(2) An employer shall not make a deduction from the wages of an employee in respect of—

(a) any act or omission of the employee, or

(b) any goods or services supplied to or provided for the employee by the employer the supply or provision of which is necessary to the employment,

unless—

(i) the deduction is required or authorised to be made by virtue of a term (whether express or implied and, if express, whether oral or in writing) of the contract of employment made between the employer and the employee, and

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee), and

(iii) before the time of the act or omission or the provision of the goods or services, the employee has been furnished with—

(I) in case the term referred to in subparagraph (i) is in writing, a copy thereof,

(II) in any other case, notice in writing of the existence and effect of the term,

and

(iv) in case the deduction is in respect of an act or omission of the employee, the employee has been furnished, at least one week before the making of the deduction, with particulars in writing of the act or omission and the amount of the deduction, and

(v) in case the deduction is in respect of compensation for loss or damage sustained by the employer as a result of an act or omission of the employee, the deduction is of an amount not exceeding the amount of the loss or the cost of the damage, and

(vi) in case the deduction is in respect of goods or services supplied or provided as aforesaid, the deduction is of an amount not exceeding the cost to the employer of the goods or services, and

(vii) the deduction or, if the total amount payable to the employer by the employee in respect of the act or omission or the goods or services is to be so paid by means of more than one deduction from the wages of the employee, the first such deduction is made not later than 6 months after the act or omission becomes known to the employer or, as the case may be, after the provision of the goods or services.

I note that the complainant could not provide details of any monies properly payable during the cognisable period. I find therefore that during the cognisable period there was no monies properly payable to the complainant and I dismiss the complaint.

Decision:

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.

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-00059906-001

I find that the dismissal was unfair and I award the complainant 4 weeks remuneration which is €2,000 gross.

CA-00059906-002

I find that the complaint is not well founded and I dismiss the complaint

Dated: 9th of April 2026.

Workplace Relations Commission Adjudication Officer: Louise Boyle

Key Words:

Dismissal, payment of wages, procedure, cognisable period