Complainant

Respondent

Parties

John  Butler

Paddywagon Ltd

Representatives

Mr Liam O’Flaherty BL instructed by John Cashell Solicitors

John Colthurst BL instructed by Frank Nyhan Frank Nyhan & Associates

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-00066206-001

24/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00066206-002

24/09/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00066206-003

24/09/2024

The complainant was employed by the respondent as a bus driver. Employment commenced on 11th June 2022 and ended on 8th July 2024.

This complaint was received by the Workplace Relations Commission on 24th September 2024.

GENERAL

·         The Complainant was employed by the Respondent as a bus driver. The Respondent is a limited liability company with its registered office at 34 O'connell Street Lower, Dublin 1, but cites its address as 5 Beresford Place, Lower Gardiner Street, Dublin 1 on its official correspondence. The Respondent operates a fleet of tour buses on national routes.

·         The Complainant was employed by the Respondent from the 11th June 2022 until his purported dismissal by the Respondent by letter on the 8th of July 2024. The Complainant's basic pay was €127 per day, with same being increased to €170 for Bank/Public Holidays, and to €182 for days considered to be 'Long Days'. In addition, the Complainant was paid Subsistence of €42.99 per day, amounting to an additional €988.77 per month. Accordingly, the Plaintiff's net monthly pay varied accordingly to whether any 'Long Days' and/or Bank Holidays featured. The Adjudicator is referred to the Complainant's payslip dated the 31st  of May 2024, demonstrating a net pay of €3,882.15 for what was not an unusual month.

·         At no point prior to, or during, his employment with the Respondent was the Complainant given a contract of employment. Neither was he furnished with any form of employee handbook, terms of employment, or similar documentation. The Complainant is not aware of any formal policy or procedures which the Respondent may have had in place relating to dismissal or disciplinary matters, as he was never given a copy of same nor was his attention drawn to the existence of any whilst he was an employee.

·         The Respondent purported to dismiss the Complainant, by letter, on the 8th  of July 2024. The letter is undated but was received on that date by the Complainant, and purports to terminate his employment "with immediate effect due to gross misconduct." The Respondent's grounds for such dismissal cite damage having been caused to one of its buses by the Complainant through his own 'carelessness’ and alleges that the Complainant further lied to management about the incident. The letter claims that the account given by the Complainant as to how the damage occurred was disproved by CCTV footage, and also that the Complainant had "already received warnings regarding multiple damage being done" to vehicles in the past. The letter is signed by a Mr D.J. O'Connor, the Complainant's supervisor.

·         The Complainant accepts that damage was sustained to a bus assigned to him on the 8th July 2024, but disputes that it occurred due to carelessness on his part. He rejects the allegation that he lied to any members of management regarding the circumstances in which the damage was caused, and also that he had been previously issued with any warnings as referred to in the dismissal letter. Other than an apparent review of CCTV footage referred to in the letter, no investigation seems to have been conducted by the Respondent prior to dismissing the Complainant. Alternatively, if one was conducted, the Complainant was not involved in or otherwise made aware of it. The Complainant was not afforded an opportunity to challenge the assertions made in the dismissal letter, nor was any right of appeal afforded to him regarding the dismissal.

·         The Complainant obtained alternative employment in or around the 8th August 2024 and was therefore out of work for in or around four weeks following his dismissal by the Respondent. The Complainant is now in receipt of monthly net pay of €2,587.48 representing a shortfall of some €1,294.67 a month as a result of his dismissal.

·         The Complainant submits three heads of claim for adjudication:

Ø  A claim for unfair dismissal pursuant to section 8 of the Unfair Dismissals Act, 1977

Ø  A claim regarding terms and conditions of employment, pursuant to section 7 of the Terms of Employment (Information) Act, 1994

Ø  A claim regarding the statutory minimum period of notice on dismissal pursuant to section 12 of the Minimum Notice and Terms of Employment Act, 1973

UNFAIR DISMISSAL CLAIM

·         The Complainant contends that his dismissal was unfair on the following factual grounds of which he will give evidence, namely that:

(i)              It was not reasonable or correct for the Respondent to maintain that the damage caused to one of its vehicles was due to 'carelessness' on the part of the Complainant. The Complainant will give evidence that the bus was caused to roll slightly forward on sloping ground due to a failure of its parking brake, damaging its right-side mirror section. The Complainant will rely on CCTV footage which is consistent with his account.

(ii)             The Complainant rejects the allegation that he 'lied' to management regarding the circumstances in which the damage occurred, as alleged in the dismissal letter. His evidence shall be that when he phoned Mr O'Connor to report the damage, it was a very brief conversation, and no discussion at all took place as to how the damage was caused. At no time did the Complainant give an account to management which was false or misleading.

(iii)           Contrary to what is stated in the dismissal letter, the Complainant had not received any formal warnings about damage to vehicles, or any potential consequences arising out of such instances, prior to this incident. Following his dismissal the Complainant emailed the Respondent asking for records of any such warnings. The Respondent did not furnish any such documents.

(iv)           The Respondent purported to dismiss the Complainant with immediate effect. Its decision was not preceded by any investigation into the circumstances of the damage, or if any investigation did occur, it did not involve the Complainant, and he was not afforded any opportunity to challenge the allegations made against him. Likewise, the Complainant was not allowed any mechanism for an appeal of his dismissal.

·         In addition to and following on from the above contentions as to fact, the Complainant submits that legally his dismissal was fundamentally and procedurally unfair by virtue of the following:

(i)                  In failing to conduct an inquiry/ investigation into the alleged incident, at which the Complainant would be allowed to argue in his own defence, the Respondent acted in flagrant breach of the Code of Practice on Grievance & Disciplinary Procedures (codified pursuant to section 42 of the Industrial Relations Act, 1990) section 4.1 of which provides as follows:

"The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available."

(ii)                The Respondent's action in dismissing the Complainant furthermore failed to comply with the above code in that:

1.       The procedure was not "rational and fair", in that the Complainant was not given an opportunity to advance any argument as to his innocence of the allegations levelled at him, and;

2.       The “basisforthedisciplinaryaction"was not clear, in that the type of action which would or could constitute 'gross misconduct' had never been identified to the Complainant by way of guidelines, terms & condition, staff handbook etc., and;

3.      The range of penalties that can be imposed was not “well defined". In fact, the Complainant had never been alerted to any particular scale or list of acts or omissions which could attract certain disciplinary penalties, and in particular, summary dismissal, and;

4.      No "internalappeal mechanism"was made available to the Complainant.

(iii)              The lack of any proper investigation into the alleged wrongdoing which led to the Complainant's dismissal is particularly damning. The Respondent is also in clear breach of section 6 of the Code quoted above which expressly requires that disciplinary procedures "must comply with the general principles of natural justice and fair procedures" including:

1.       details of any allegations or complaints are put to the employee concerned.

2.       the employee concerned is given the opportunity to respond fully to any such allegations or complaints.

3.       the employee concerned is given the opportunity to avail of the right to be represented during the procedure.

4.       the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

It is submitted that none of the above requirements were met by the manner in which the Complainant was summarily dismissed by the Respondent on the 8th July 2024.

(iv)              The Respondent's reliance on prior warnings about vehicle damage (which the Complainant does not accept he received) furthermore undermines the basis upon which it purported to dismiss him. Section14 of the above Code provides that:

"Warnings should be removed from an employee's record after a specified period and the employee advised accordingly. The operation of a good grievance and disciplinary procedure requires the maintenance of adequate records. As already stated, it also requires that all members of management, including supervision, personnel and all employees and their representatives be familiar with and adhere to their terms."

In the instant case, even if previous warnings had been given (which the Complainant does not accept) it was never flagged to him for how long those warnings would remain active on his file, or the potential implications those warnings would have for him should there be a repeat of any disciplinary issue. The Respondent does not seem to have any policy in place regarding warnings or the manner in which they may affect the disciplinary process. Indeed, it does not seem to have had a disciplinary policy in the first place. Reliance on such warnings to justify the Complainant's dismissal is therefore inherently unfair.

(v)                The Complainant also contends that summary dismissal was not a fair or proportionate sanction to impose upon him for the minor damage sustained by the vehicle. In 'Redmond on Dismissal Law' (3rd Ed., 2017, at para. 13.33) it is noted that the ‘range of reasonable responses' consideration has been endorsed as the test to be employed by an adjudicating body, citing the case of McGee v. Beaumont Hospital (UD 136/1984) which held that:

"thetaskoftheTribunalisnottoconsiderwhatsanctionstheTribunalmight impose, but rather whether the reaction of the respondent andthe sanction imposed laywithintherangeofreasonableresponses."

At paragraph 13.32 the author likewise notes the recent determination of the Labour Court in Morey v. Dromina Community Playgroup (UDD1715 Labour Court, 7/ 4/17) which held that:

"If the decision to dismiss was not with the range of reasonable responses, then there cannot be substantial grounds justifying the dismissal.”

It is submitted that summary dismissal, without notice, was disproportionate in all of the circumstances and therefore the dismissal was unfair. This is all the more the case where the Complainant was never furnished with any document setting out what sanctions would apply for particular forms of misconduct.

CLAIM REGARDING TERMS AND CONDITIONS OF EMPLOYMENT

·         At no point prior to, or during, his employment with the Respondent was the Complainant given a contract of employment. Neither was he furnished with any form of employee handbook, terms of employment, or similar documentation.

·         It is therefore submitted that the Respondent is in breach of section 3 of the Terms of Employment (Information) Act,1994 (as amended) which provides that an employer shall, not later than one month after the commencement of an employee's employment, give to that employee a statement in writing containing the various particulars of the terms of his employment.

CLAIM REGARDING MINIMUM NOTICE

The Respondent purported to dismiss the Complainant on the 8th July 2024 with immediate effect. As the Complainant had accrued more than two years' continuous service by that point, it is submitted that the Respondent acted in breach of section 4(2)(b) of the Minimum Notice and Terms of Employment Act, 1973 (as amended) which requires an employer to give a minimum period of two weeks’ notice to employees with that length of service.

QUANTUM OF COMPENSATION TO WHICH THE COMPLAINANT IS ENTITLED

·         Following his dismissal on the 8th July 2024, the Complainant was able to find alternative employment in or around the 8th August 2025.

·         The Complainant's new salary is €2,587.48 net monthly (see pay slip from Marti Twomey Coaches Limited dated 11th March 2025). This leaves a shortfall of €1,294.67 a month compared to that which he would have earned had he continued working with the Respondent.

·         At the hearing of this complaint the Complainant will give evidence of his endeavors to mitigate his loss in this regard by obtaining other employment.

CONCLUSIONS.

·         The Complainant's dismissal was unfair in all of the circumstances.

·         The Complainant disputes that he had received any prior warnings. In any event, the Respondent lacked any policy in respect of warnings, and therefore reliance on same to justify summary dismissal of the Complainant renders that dismissal unfair.

·         The Respondent has committed multiple breaches of the Code of Practice on Grievance & Disciplinary Procedures in the manner in which it has purported to dismiss the Complainant.

·         Dismissal, in all of the circumstances, was not within the range of reasonable options open to the Respondent, even had the misconduct in question (which the Complainant denies) been committed.

·         The Complainant can demonstrate financial loss as a result of his unfair dismissal by the Respondent, which is ongoing.

·         Mr Butler (the complainant) was dismissed for gross misconduct. Mr Butler lacked competence and had caused a lot of damage to vehicles and had lied to colleagues in relation to the incident on 7th July.

·         When Mr O’Connoe telephoned the complainant on the evening of 7th July he asked Mr Butler to tell him the truth – Mr Butler stuck to his story.

·         Mr Butler (the complainant) had caused damage before. at no stage did Mr Butler say he was at fault.

·         The company management had totally lost any level of trust and confidence with Mr Butler.

·         Evidence was heard from Mr McKeown, Transport Maintenance Manager. Mr McKeown has been involved in transport for more than 20 years.

·         Mr McKeown said it was a driver’s duty to conduct walk around checks every morning to ensure there were no problems with the vehicle.

·         Mr McKeown was of the opinion that if there was anything wrong with Mr Butler’s vehicle it was always someone else at fault and never, he himself.

CA-00066206-001

Prior to making any findings in relation to this case it is important that both parties fully understand the job and duty of the adjudication officer. In the case of Mullane v Honeywell Aerospace Ireland Limited, UD 111/2008, where the Employment Appeals Tribunal stated the following:

“The Tribunal is not required to determine whether the Complainant did or did

not carry out the alleged act […]. The Tribunal’s function is to establish whether

the respondent has proven that the dismissal was not unfair, having regard to the

terms of the Unfair Dismissals Acts 1997 [sic] to 2001. For this to be established

the Tribunal must be satisfied that the alleged act […] was fully and fairly

investigated by the respondent, that the investigation and disciplinary process

respects the rights of the Complainant, that the conclusion that the offending act

had been perpetrated by the Complainant was reasonable on the balance of

probabilities and that the dismissal was a proportionate response within the band

of sanctions which could be imposed by a reasonable employer.”

In an earlier case, Looney & Co Ltd v Looney UD843/1984, the EATsummarised as follows:

‘It is not for the EAT to seek to establish the guilt or innocence  of the claimant nor is it for the EAT  to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did or decided as it did, as too do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.’

It is the Respondents position that the Complainant’s actions amounted to gross misconduct, and they would not be in the position to trust the Complainant to continue to work for them.

This position has been upheld by the Tribunal on a number of occasions as justifying

dismissal as a reasonable sanction, including in Moore v Knox Hotel and Resort Ltd,

UD 27/2004, where the Tribunal stated that:

“[The Complainant’s actions] destroyed the respondent’s trust and confidence in the

Complainant and rendered the continuation of the employment relationship impossible, thereby

justifying her […] dismissal”.

In relation to the sanction imposed by the Respondent, the principles to be

applied in cases of gross misconduct have been clearly established over time,

and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the Complainant,

nor is it for the Tribunal to indicate or consider whether we, in the employer’s

position, would have acted as he did in his investigation, or concluded as he did or

decided as he did, as to do so would substitute our mind and decision for that of the

employer. Our responsibility is to consider against the facts what reasonable

employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and

decision be judged.”

Much of the Respondent’s submission focusses on the CCTV that was viewed at the hearing. It was very clear to see that the bus moved while the complainant was in the driving position / seat.

I have spent an amount of time considering the arguments from both parties.

From what I have heard from the Respondent plus viewing the CCTV footage it does appear that on the balance of probability that the complainant did cause the damage to the bus.

Whilst the matter was being investigated by Mr O’Connor, he telephoned the complainant and informed him that he had been considering the situation and the damage to the bus. It has been stated by the complainant that Mr O’Connor during this telephone conversation told Mr Butler to tell him the truth and when Mr Butler stuck to his story, he was dismissed during this telephone conversation.

In conclusion I find that the complainant was unfairly dismissed due to a lack of procedure utilised by the Respondent. The representative for the complainant has stated the following:

·         The Complainant disputes that he had received any prior warnings. In any event, the Respondent lacked any policy in respect of warnings, and therefore reliance on same to justify summary dismissal of the Complainant renders that dismissal unfair.

·         The Respondent has committed multiple breaches of the Code of Practice on Grievance & Disciplinary Procedures in the manner in which it has purported to dismiss the Complainant.

·         Dismissal, in all of the circumstances, was not within the range of reasonable options open to the Respondent, even had the misconduct in question (which the Complainant denies) been committed.

·         The Complainant can demonstrate financial loss as a result of his unfair dismissal by the Respondent, which is ongoing.

I find it very difficult to disagree with this.

I also feel that the complainant provided a version of events that may not be totally accurate and therefore consider that the complainant contributed 50% to his own dismissal.

Contained within the complainant’s submission (para) is the following in relation to his wages:

·         The Complainant was employed by the Respondent from the 11th June 2022 until his purported dismissal by the Respondent by letter on the 8th July 2024. The Complainant's basic pay was €127 per day, with same being increased to €170 for Bank/Public Holidays, and to €182 for days considered to be 'Long Days'. In addition, the Complainant was paid Subsistence of €42.99 per day, amounting to an additional €988.77 per month. Accordingly, the Plaintiff's net monthly pay varied accordingly to whether any 'Long Days' and/or Bank Holidays featured. The Adjudicator is referred to the Complainant's payslip dated the 31st May 2024, demonstrating a net pay of €3,882.15 for what was not an unusual month.

It should be noted that from the payslip mentioned above it clearly shows that a sum of €988.77 is shown under the heading of subsistence and non-taxable, this cannot be considered as wages. This wage slip also shows a taxable wage payment of €3,256.23 for the month and a gross payment of €13,199.97 year to date (22 insurable weeks). I therefor calculate one weeks pay amounts to €600. (year to date earnings divided by 22).

I now order the Respondent to pay compensation to the Complainant of €6000 (10 weeks pay), such payment should be made within 42 days from the date of this submission.

CA-00066206-002 – complaint under the Terms of Employment (Information) Act 1994.

The Complainant has an entitlement under law to be provided with a written statement of the main terms of his employment within two months of commencement of the employment. The statement under section 3 of the said Act must include the following:

a)      the full names of the employer and the employee,

b)      the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 1963 ),

c)       the place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

d)      the title of the job or nature of the work for which the employee is employed,

e)       the date of commencement of the employee's contract of employment,

f)        in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

fa) a reference to any registered employment agreement or employment regulation            order which applies to the employee and confirmation of where the employee may obtain a copy

g)      the rate or method of calculation of the employee's remuneration,

ga) that the employee may, under section 23 of the National Minimum Wage Act,2000

      requests from the Employer, a written statement of the employee’s average hourly

     rate of pay for any pay reference period, as provided in that section. 

h)      the length of the intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

i)        any terms or conditions relating to hours of work (including overtime),

j)        any terms or conditions relating to paid leave (other than paid sick leave),

k)       any terms or conditions relating to—

(i)                  incapacity for work due to sickness or injury and paid sick leave, and

(ii)                pensions and pension schemes,

l)        the period of notice which the employee is required to give and entitled to receive

(whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

m)    a reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.

In the instant case the complainant contends that he was never issued with any statement. The Respondent produced a statement at the hearing. This statement is not signed by either the complainant or the respondent and does not contain the information listed in the Act. I therefore find that this complaint is well founded and order the Respondent to pay compensation in the sum of €1,200.00 to the complainant. Such sum should be paid within 42 days from the date of this decision.

CA-00066206-003 – a complaint submitted under section 12 of the Minimum Notice and Terms of Employment Act, 1973.

The complainant was dismissed for what the respondent considered gross misconduct. In cases of gross misconduct dismissal, it is not unusual that dismissal is instant without any notice period.

If an employee is dismissed for ‘misconduct’ he is not entitled notice or pay in lieu. In Brewster v Burke and the Minister for Labour (1985) 4 JISLL 98 the High Court accepted a UK definition of misconduct:

“It has long been part of our law that a person repudiates the contract of service if he wilfully disobeys the lawful and reasonable orders of his master. Such a refusal fully justifies an employer in dismissing an employee summarily”.

This complaint as presented is not well found.

As outlined above.