By Gordon Deegan
A State workplace watchdog has ordered that a former driver for Minister of Agriculture, Food and the Marine Charlie McConalogue receive €30,000 for his Christmas Day unfair dismissal.
At a Workplace Relations Commission (WRC) hearing, former Garda, Trevor Shaw claimed he was let go from his job in a “sham” redundancy process which left him to choose between the prospect of a job in a dole office or ending 40 years’ service to the State with a severance package.
Shaw served as a ministerial driver from May 2011 until December 2022 and was provided with a new fixed term specified contract for each dissolution of the Dáil.
The 65-year-old retired from the An Garda Síochána in 2011 after 31-and-a-half years of service to keep up the driving work when civilians initially replaced gardaí.
Shaw sued Minister McConalogue for unfair dismissal and now, WRC adjudicator, Breiffni O’Neill has ordered the minister pay Shaw €30,000 compensation for his unfair dismissal which came into force on Christmas Day 2022.
Unfair dismissal
In a hard hitting ruling concerning the Department of Agriculture, Food and the Marine’s (DAFM’s) treatment of Shaw, the WRC adjudicator said that he was making the €30,000 award arising from “the egregious conduct” of his employer surrounding the dismissal and Shaw’s insufficient efforts to mitigate his financial loss.
O’Neill stated that the award is in addition to both the redundancy and ex-gratia payment that Trevor Shaw has already received.
The State has denied the unfair dismissal claim but O’Neill stated that Shaw’s employer “acted wholly unreasonably both in peremptorily dismissing Mr Shaw and not engaging in any consultation process whatsoever with him prior to his redundancy”.
He said that the peremptory nature of the dismissal was underscored by the failure to offer an appeal of the decision to dismiss Shaw.
O’Neill stated that such a process could have given Shaw “the opportunity to defend his future employment and highlight his willingness to work in alternative roles”.
O’Neill stated that it is symptomatic of the egregious treatment of Trevor Shaw throughout this process “that the date of the termination of his employment was Christmas day, namely December 25, 2022”.
Driver
The WRC adjudicator stated that it was the evidence of a DAFM official that Shaw was dismissed on the grounds of redundancy because he was a civilian driver.
The department’s witness claimed that Shaw was no longer required because a decision had been made, on foot of security concerns, that the drivers of all the regular attendees at Cabinet, namely the Cabinet Office holders as well as the Super Junior Ministers, had to be serving members of An Garda Síochána.
O’Neill stated that when redundancy is cited as the reason for the termination of employment, it is necessary not only to satisfy the definition of redundancy but also to demonstrate that Shaw was fairly dismissed.
He said that Trevor Shaw heard rumours in early 2022 that a decision had been made to dismiss all the civilian drivers.
He said that Shaw was gravely concerned for his livelihood after this and repeatedly questioned the department about it.
Termination
Shaw received no clarification whatsoever about his future employment “and was effectively left dangling for almost a year, until he finally received notification of his termination on November 25, 2022, without any consultation whatsoever having been engaged in by the department prior to this”.
O’Neill stated that in addition to the absence of a consultation process, he also noted the department’s “shocking assertion” that they were obliged to dismiss the driver on foot of an instruction from the Department of Public Expenditure.
He stated that any prudent employer, in addition to engaging in a meaningful consultation with Shaw, would have insisted that the Department of Public Expenditure incorporate all civilian drivers of regular Cabinet attendees, who were at risk of redundancy, into a selection matrix.
“This matrix should have also included drivers of junior ministers, who were to be retained, and appropriate redundancy selection criteria should have been chosen, rather than relying solely on the criterion of which minister they were driving for,” he said.
O’Neill noted that only one alternative to redundancy was presented by the department to Shaw prior to issuing his notification of dismissal.
He was offered a position as a temporary clerical officer in the Department of Social Welfare.
O’Neill stated that this role “was offered without any consultation or discussion around the complainant’s skillset and was refused by him because it was unsuitable largely because he did not have the IT skills that he believed would be required for the role”.
Ellen Walsh, of Sean Ormonde Solicitors told the hearing the department of agriculture’s handling of the matter was a “fiasco” which failed to honour her client, Trevor Shaw’s employment rights, branding it a “sham redundancy”.