Workplace Relations Commission: Bus company directed to reinstate driver who was unfairly dismissed
A bus company has been directed to reinstate a part-time school bus driver whose contract of employment was terminated in August 2017.
The company accused the driver of stealing parts, however the driver maintained that he had permission to take the parts and did so openly.
Directing the reinstatement with full salary retrospection to apply, Adjudication Officer Ray Flaherty found that there was a distinct lack of objectivity and independence in the carrying out of the investigation and disciplinary processes.
The Complainant was employed by the Respondent Bus Company from 2002 as a part-time School Bus Driver.
In July 2017, the Complainant was observed taking over 20 wheel-rims from the company premises, and was asked to attend a disciplinary meeting in August 2017 as a result. The issue discussed at the meeting was theft of company property.
The complainant claimed that he had prior permission from the Garage Foreman to take the parts, and that he removed them in an open and transparent manner.
After the meeting, the Respondent notified the Complainant that “following an investigation” he was found to be responsible for theft and his contract of employment was terminated.
In the Workplace Relations Commission, the Complainant submitted that the Respondent’s investigation process was unfair, unreasonable and contrary to Section 6 (7) of the Unfair Dismissal Act 1997.
At the outset of his decision, the Adjudication Officer said that he was required to consider whether the Respondent’s decision was reasonable in the circumstances – not to establish the guilt or innocence of the employee. The Adjudication Officer also said that the standard the Respondent’s actions had to be judged against was that of a reasonable employer, and that the burden of proof was on the employer to demonstrate that the dismissal was fair.
The Adjudication Officer said that the main aspects of the case related to the disciplinary process itself and the role of the Services Manager in the investigation and disciplinary process.
In this regard, the decision of the Labour Court in Joseph Brennan Bakeries v Rogers (UDD1821) was considered – in this case it was stated that the multiplicity of roles undertaken by the general manager called into question the fairness of the procedure, in that the general manager initiated and oversaw the investigatory procedure, and also oversaw the disciplinary procedure.
The Adjudication Officer was satisfied that the Services Manager had acted similarly in that he was the person who investigated the allegations against the Complainant, conducted the Disciplinary Hearing, and according to documentary evidence was the decision-maker with regard to the disciplinary sanction.
The Adjudication Officer said that his concerns were deepened by the Complainant’s evidence of the manner in which he was advised of the Disciplinary meeting – submitting that the Services Manager had said to the Complainant that he had been “caught stealing rims” and “they are looking for your head upstairs”.
This raised significant questions in relation to objectivity and pre-judgment, and the Adjudication further said that the decision may have been influenced by a person or persons whose role in the process was not transparent – further serving to undermine the fairness of the procedure.
It was also noted that there was no report of the investigation or original allegations – which meant that the Complainant attended the Disciplinary hearing without adequate details of the charge against him, and would have been unable to prepare for the meeting. Significantly, the Complainant was not advised that the charges were serious and could lead to the termination of his employment.
The Adjudication Officer found that there was a “distinct lack of objectivity and independence” in the investigation and disciplinary processes, and that in the circumstances the decision to dismiss the Complainant must be considered unfair. This he said was further undermined by the fact that the Complainant’s appeal of the dismissal decision was not heard.
The Adjudication Officer directed that the Complainant be reinstated – with full salary retrospection to apply from the date of dismissal.
The Complainant had also submitted a complaint under the Minimum Notice and Terms of Employment Act 1973, however, in light of the Adjudication Officer’s decision in relation to the unfair dismissals claim the minimum notice complaint was no longer appropriate as no notice would be applicable in circumstances where the termination decision was found to be unfair.
- by Seosamh Gráinséir for Irish Legal News