School Bus Driver teaches Employer a lesson in Unfair Dismissal
School Bus Driver teaches Employer a lesson in unfair dismissal

 

In the recent Workplace Relations Commission ("WRC") case of ADJ-00013201 An Employee v A Bus Company, a WRC Adjudication Officer ("AO") found that an employee was unfairly dismissed and directed that the employee be reinstated with full salary in retrospection to apply. 

Termination of employment for theft

The Complainant was employed by the Respondent as Part-Time School Bus Driver and worked until 25 August 2017 when his contract of employment was terminated. The Complainant received notice by way of letter from the Respondent dated 2 August 2017 stating that he was to attend a disciplinary hearing due to an allegation of theft of company property. At the hearing, which was conducted by the Services Manager, the Complainant viewed CCTV footage where he was shown to be removing used wheels from the Respondent's premises. While accepting that he removed the property, the Complainant denied that this was theft. He stated that he had prior permission from his superior to take the parts and that he did so in "an open and transparent manner". The Respondent stated that the matter was to be investigated. Following the investigation, the Complainant received a letter from the Services Manager stating that his contract was terminated by reason of theft of company property.

Unfair investigation

The Complainant argued that the investigation process resulting in his termination was "unfair, unreasonable and contrary to the provisions of Section 6(7) of the Unfair Dismissal Act 1997". This section provides that in determining if a dismissal is unfair, regard may be had to the reasonableness or conduct of the employer and compliance with the fair procedures. The Complainant submitted that the two-stage process adopted by the Respondent lacked impartiality as the Services Manager conducted both the investigation and the disciplinary decision procedure. The Complainant also contended that no report of the Services Manager's findings of fact was provided to him, depriving him of the opportunity to review and dispute those findings. Furthermore, the Complainant stated that having submitted an appeal to the Respondent, no appeal hearing was ever heard. 

In response, it was submitted by the Respondent that the appeal was awaiting a hearing date but had not been heard "due to the large number of Disciplinary Appeals and the serious illness of a member of the Appeals Board". The Respondent also stated that the agreed internal disciplinary procedure indicated that the Complainant should pursue the appeal through the Labour Relations Commission "prior to referral to a third party". 

WRC orders re-instatement

In finding in favour of the Complainant, the AO referred to the "significant body of case law" relating the "to the separation of the investigation stage from the disciplinary decision-making process in the context of fair procedure". The AO found it inappropriate that the Services Manager conducted both and accepted the Complainant's evidence that this raised questions in relation to objectivity and pre-judgement. The AO further stated that the Complainant should have been provided with the Services Manager's report and that the letter received should have detailed the charges against the Complainant. In terms of the delayed appeal, the AO noted the Respondent's reasoning but found "that it has compounded the shortcoming of the disciplinary process up to that point". The AO awarded reinstatement. 

Lesson for Employers

There are clear lessons to be learnt in relation to the fair procedures to be followed prior to making a decision to dismiss. However, this case also serves as a reminder to employers that AOs have the power to order: 

  1. re-engagement of a dismissed employee (this can be to the former position or to another reasonably suitable position); or
  2. reinstatement of a dismissed employee with full salary in retrospection (the employee is treated in all respects as if s/he had not been dismissed and s/he returns to her/his former position on the same terms and conditions); or
  3. compensation. 

Accordingly, when considering claims of unfair dismissal, employers must be cognisant of the fact that if a case is decided against them compensation is not the only remedy an AO has at their disposal. Other recent examples of the WRC directing reinstatement include: ADJ-00014952 Chief Executive Officer v Charity Organisation (November 2018) and ADJ-00001266 A Banker v A Bank (March 2018).

 

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