EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
-EMPLOYEE claimant UD263/2012
against
EMPLOYER -respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. P. McGrath B.L.
Members: Mr. M. Flood
Mr. D. Thomas
heard this claim at Dublin on 23rd May 2013 and 29th August 2013
Representation:
Claimant:
Respondent:
The determination of the Tribunal was as follows:
The Tribunal has carefully listened to the evidence adduced during the course of two hearing days.
The claimant’s case is one for unfair dismissal in circumstances where his employment was terminated in January 2012 at the conclusion of what he says was a doubly flawed disciplinary and appeals process.
The respondent is a transport company primarily involved in the transport of people from Dublin airport across the city and county. There can be no doubt that the issue of the safe transport of passengers is the number one priority for the company. The claimant had been working with the respondent company for nearly four years and had come to the respondent company with some considerable experience as a coach driver.
It is common case between the parties that the personnel from the Dublin Port Tunnel Authority contacted the respondent company regarding the claimant’s driving in the tunnel on one occasion. The issues of tailgating and dangerous overtaking were highlighted.
The respondent was bound to take this complaint very seriously as the Dublin Port Tunnel is an essential route for the service provided. The respondent was left in no doubt that the behaviour of its driver was such that it could seriously jeopardise any future relationship with the Dublin Port Tunnel.
In the course of its subsequent investigation the respondent company looked at the circa 25 minutes of on-board video footage which showed the actions of the driver in the course of the journey being complained about.
The footage, it is agreed by all the parties, showed that the claimant’s driving style was not up to the safety standards the company required. The claimant was noted to be drinking from a cup, he lifted both hands off the wheel, he was observed to stretch behind him looking for something and he appeared to be writing something. The claimant does not deny these actions and in conjunction with the driving pattern in the tunnel there can be no doubt that the claimant’s driving was some cause for concern for the respondent company.
In conducting an initial disciplinary process the Tribunal agrees that there was a manifest flaw in having a letter of termination ready to be delivered before a conclusion should ever have been drawn -the process was not complete at the time the said letter was delivered. The procedural flaw was appealed and the appeal process recognised the unsatisfactory nature of how the initial investigation/disciplinary was conducted and it overturned the decision.
The respondent and the claimant are at variance as to what should have happened at this point. The respondent wanted a de novo disciplinary process to be initiated with a new and independent person brought in to conduct same. The claimant and/or his representative did not accept that the respondent should be allowed “mend its hand” and go back to the drawing board with the previous flaw somehow expunged from the record. The Tribunal recognises that on occasion it will be appropriate for a de novo hearing to be conducted in the aftermath of a decision having been overturned on appeal.
The respondent engaged its own Human Resources Manager from the U.K. to come to Dublin to conduct a de novo disciplinary hearing. The evidence of this witness was persuasive to the Tribunal. Given that the claimant did not deny the fact of the irregularity of the driving on the CCTV footage, it was left to the Human Resources Manager to explore any mitigating factors and determine any sanction which might appropriately be given. The training given and the medical evidence provided were given appropriate weight and considered as part of the final decision-making process.
On balance the Tribunal finds that the decision maker was not unreasonable in making a finding that the driving observed, together with the third party complaint lodged, amounted to gross misconduct such that a decision to summarily dismiss was warranted. This decision was confirmed on appeal and the Tribunal accepts the appropriateness of that finding. The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)