Robert Newton v Go-Ahead Transport Services (Dublin) Limited ADJ-00043139 concerned a complaint to the Workplace Relations Commission (“WRC”) under the Unfair Dismissals Acts 1977-2015. The Complainant argued that he was unfairly dismissed from the Respondent and that the Respondent failed to take account of mitigating circumstances.
Facts: The Complainant was employed by the Respondent from early January 2019 until his dismissal on 14th September 2022. He was initially employed as a Bus Driver and was later promoted to the role of Depot Supervisor. The Complainant submitted during the hearing that it was his role to allocate drivers and buses to the various different routes, and that his colleagues in the Control Room were responsible for monitoring drivers and diverting traffic to assist drivers.
On 18th August 2022, the Complainant was informed by a bus driver that he was unfamiliar with the route he was assigned to. The Complainant informed the driver that the Control Room would guide him along the route. An employee in the Control Room “JF” rang the Complainant to query this approach. The Complainant responded that it was not his role to guide the driver and that guiding drivers was the responsibility of the Control Room. Another colleague assisted the driver. The Control Room Manager “FS” asked to speak with the Complainant to discuss the matter and JF was also at the meeting. FS told the Complainant that he should not have assigned an untrained driver to the route and that Control Room staff did not have capacity to guide drivers anymore. During the investigation, the Complainant explained that he felt threatened, belittled and harassed in front of two other Control Room employees who were there and joined in, one of whom was JF. The Complainant accepted that he lost his composure during the meeting. He denied using the word “dickhead” but agreed that he “shushed” JF when he tried to speak. Following the meeting, JF submitted a written complaint about the Complainant and went on sick leave for work-related stress following the meeting.
The Complainant was suspended on pay during an investigation and disciplinary process. The Respondent offered an alternative to dismissal in the form of a move back to a bus driver role, but the Complainant rejected this proposal. The Complainant was dismissed for “inappropriate and unprofessional behaviour towards colleagues, in direct contravention of GAI performance and conduct guidelines”. This decision was upheld on appeal. The Complainant argued that he had been very loyal to the Respondent and had never taken sick leave. Prior to the incident on 18th August, he had made several complaints, verbal and written, about Control Room employees and believed that none of these were ever addressed by the Respondent.
The Complainant’s representative submitted that the Respondent failed to take account of mitigating circumstances – the Complainant had no prior warnings on file, employees were working in a stressful environment due to their workload and the Complainant apologised to the Control Room Manager for his behaviour at the meeting. Conversely the Respondent’s representative submitted that the Complainant was guilty of gross misconduct due to his behavior and having regard to the supervisory management role he held. The Respondent’s representative argued the complainant had the benefit of a disciplinary process and was given every opportunity to challenge the allegations against him. The Complainant’s representative referred to a number of issues in relation to the investigation and disciplinary processes, including the fact that the Respondent did not provide the Complainant with a “clear and transparent” allegation and then “mutated two incidents” during the appeals process which only became apparent to the Complainant when he received the outcome of the appeal.
Decision: The Adjudicator, John Harraghy, found that the Complainant was unfairly dismissed. He referred to the burden of proof on the Respondent to demonstrate that the dismissal was fair, both substantively and procedurally. He noted that his role was to consider the reasonableness of the Respondent’s decision to dismiss the Complainant in the circumstances.
The Adjudicator highlighted the absence of terms of reference for the investigation and noted that the employee who made the complaint was never interviewed, although he acknowledged that the employee in question was on sick leave.
The Complainant had requested those involved in the incident to be available for cross-examination and was informed by the Respondent that all of those involved had declined to attend and “they are not compelled to agree to be cross-examined”. The Adjudicator noted that:
“The subject of any disciplinary process should be provided with a full and fair opportunity to state his or her case as part of the investigation process. It is widely accepted that as part of fair procedures and natural justice that an employee has a right to challenge his or her accusers before any findings are made.”
The Adjudicator referred to Borges v. The Fitness to Practice Committee [2004] 1 IR 103which provides that where investigative processes can lead to dismissal, cross examination is a vital safeguard to ensure fair procedures.
The Adjudicator was critical of the dismissal letter which stated that the actions of the Complainant “led to your colleague requiring medical intervention for stress, which was a direct result of the encounter with you on that day and has led to a prolonged period of sick leave for that colleague” when the Respondent failed to provide any evidence of this. The Adjudicator noted that it was not apparent as to how the disciplinary manager was made aware of this in circumstances where the employee who made the complaint was never interviewed. For this reason, the Adjudicator found that the disciplinary hearing was “compromised by the fact that some information was provided outside of the disciplinary hearing.”
The Adjudicator was also critical of the appeal letter which made it clear that the appeal hearing considered a previous incident on 4th July which was closed with no warning issued, and it did not form part of the disciplinary process. The Adjudicator regarded this as a serious procedural flaw.
The Adjudicator also highlighted that the appeal failed to take account of any mitigating circumstances put forward by the Complainant. No weight was given to his previous unblemished record, his cooperation with the process and his acknowledgment that his actions were inappropriate. The Adjudicator concluded that the sanction of dismissal was disproportionate and, given the cumulative effect of the procedural shortcomings, he found that no reasonable employer would have dismissed the employee in the circumstances.
The Adjudicator ordered the Complainant to be re-engaged in his previous role as Depot Supervisor from the date of the decision. The period between the date of his dismissal and the hearing was to be regarded as an unpaid suspension. The Adjudicator acknowledged that the incident on 18th August 2022 was unfortunate, but he found that it was possible that a bond of trust could be restored, and a reasonable professional working relationship established.
“I cannot accept that a verbal interaction with colleagues can be the basis for an employer to lose faith in an employee with an unblemished record and who performed his duties in a challenging environment in a satisfactory manner.”
Takeaway for Employers: In this case the WRC ordered a remedy less commonly used than compensation in unfair dismissal cases, the remedy of re-engagement. The reason this remedy is less common is that in many cases the trust between the parties has irrevocably broken down. However, in this case, the WRC considered it possible that the bond of trust could be restored. The Adjudicator did not accept that a verbal interaction between colleagues could be the basis for an employer losing faith in an employee with an unblemished record. Employers need to be aware that reinstatement and re-engagement are possible alternative remedies to compensation in unfair dismissal cases.
This decision also highlights the importance of ensuring that disciplinary managers are very clear about the allegations that are the subject of the disciplinary process and that they do not go beyond their remit to include previous matters that are closed and do not form part of the disciplinary process at hand. To do so will be regarded as a serious procedural flaw.
Link – https://www.workplacerelations.ie/en/cases/2023/june/adj-00043139.html
Authors – Tara Kelly, Jenny Wakely and Anne O’Connell
30th June 2023