EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD1223/14
MN745/13
APPEAL OF:
Sean Purcell - appellant
against the recommendation of the Rights Commissioner in the case of:
Last Passive Limited, T/A Aircoach - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms V. Gates BL
Members: Mr C. Lucey
Mr F. Keoghan
heard this appeal at Dublin on 26th January 2015, 26th May and 27th May 2015.
Representation:
Appellant: Mr. Des Ryan BL, instructed by Mr William O'Reilly, Steen O' Reilly, Solicitors, 31/34 Trimgate Street, Navan, Co Meath
Respondent: Mr. Alan Haugh BL, instructed by A&L Goodbody Solicitors, IFSC, North Wall Quay, Dublin 1
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of the employee (the appellant) appealing against the recommendation of the Rights Commissioner ref. r-141079-ud-13/RG.
Respondent’s Case:
The respondent provides an airport express coach service to and from Dublin Airport. AMcM is driver/trainer with the respondent company. He has worked for the respondent for fifteen years. When recruiting new drivers the respondent tends to select experienced drivers. Employees undertake a week’s training which includes induction, the strict policy the respondent operates in relation to the use of mobile and electronic devices while using the company’s vehicles, the ticket machine and the routes to be undertaken by employees. Each employee spends three to four weeks driving routes with an experienced driver. The respondent gives emphasis to health and safety, the non use of mobile phones while driving and drugs and alcohol are strictly prohibited. Wifi is provided for passengers’ use only. The appellant had two years driving experience with a private operator before commencing employment with the respondent. The appellant undertook all the relevant training and also attended and passed an Advanced Driving Course. Refresher courses are also provided to all staff.
Prohibited electrical equipment includes mobile phones, ear pieces, blue tooth Satnavs, IPODS and IPADs and this is highlighted to all drivers. Employees refer to The Mobile Communication and Driving Policy as the Mobile Phone Policy.
Twelve cameras are positioned on each vehicle.
AMcM informed the Tribunal that AM in the Call Centre in the Belfast office made AK, the Operations Manager, aware of a third party complaint that a driver had been observed using an electrical device while driving a vehicle on the M50 on 22nd July 2013. AK in turn made the witness aware of the complaint. The driver had been identified as the appellant. No passengers were aboard the coach during this time. The witness requested and viewed CCTV footage of the incident. He saw the appellant departing from Greystones, coming down a slip road onto the M50 heading northwards for the airport where the depot is located. Over a forty to forty five minute period he saw the appellant taking out an IPAD at which point he took his two hands off the steering wheel. He was driving at 100 kmph. Then he saw the appellant had an IPAD in one hand with the other hand on the steering wheel. He saw the appellant on two or three occasions not having either hand on the steering wheel. The appellant then had the IPAD in his right hand and then held the device up to his ear and appeared to be listening to something. The witness had considerable driving experience and concluded that the appellant was not driving safely. He was horrified and immediately afterwards met AK, the Operations Manager.
AMcM said he never witnessed anyone driving while having an IPAD up to their ear. Mobile phones are most commonly used by motorists.
AK, the Operations Manager, informed the Tribunal that there are one hundred and eighty employees including drivers, co-ordinators and office staff. The witness is responsible for the day to day running of the business, she ensures schedules are met and also deals with customer complaints. She is three years in this role. The appellant was a reliable employee and had a good working relationship with staff members.
The respondent has a system (known as the greenway tracking system) whereby it can log into any coach at any given time and track the location, speed and driver on the coach. AK ensures that coaches are stationery before contacting a driver. She has never telephoned a driver while a vehicle is in motion.
She was the first person to become aware of the customer complaint having received a telephone call from AM who works in customer service in the Belfast office. It was not company policy to disclose third party details. She viewed CCTV footage of the incident. She became seriously concerned from a health and safety point of view. For safety reasons the appellant had put both himself and others in danger. By telephone call on 24th July 2013 the witness suspended the appellant with full pay pending an enquiry into the matter.
The appellant attended a preliminary investigation on 25th July 2013. Details of the customer complaint were furnished to him. The appellant was given the opportunity to view the CCTV footage. He clarified that he was not holding a mobile phone but instead it was an IPAD that was in his possession. The witness told the appellant that the third party did not want to disclose personal details. The appellant said he was listening to an audio radio on the IPAD and that the coach radio was not working and there was wind coming from the door of the coach. He also thought the company should have no issue as it was not a mobile phone he was using. The witness clearly defined that the IPAD was an electronic device and in breach of the Mobile Communications and Driving Policy.
The meeting concluded and the witness reviewed all her notes. She returned to the meeting and advised the appellant of the necessity to attend a disciplinary meeting scheduled for 29th July 2013. He was advised that he could be accompanied by a union representative or a work colleague.
The witness chaired the disciplinary meeting on 29th July 2013. MS attended as a company witness and acted as notetaker. A colleague MMcN accompanied the appellant. The appellant viewed the CCTV footage again. The appellant could not recall if he had read the Mobile Phone Policy. The appellant saw no serious breach of the safety policy in place and it was his view that it was acceptable to use an IPAD when driving. He said he was fully in control of the vehicle he was driving. He showed no remorse. At the conclusion of the meeting the witness reviewed notes taken at the meeting. The appellant had put himself in danger together with other road users. While he stated that he never crossed the white line there was a serious breach of both the Health and Safety Policy and the Mobile Communications and Driving Policy. AK explored all options. She considered issuing the appellant with a final written warning, or placing him on unpaid suspension or to instantly dismiss him. By using the electronic device (the IPAD) the witness believed that the appellant had put both himself and other road users in danger. The witness returned to the meeting and by letter of the same date terminated the appellant’s employment. He was offered a right of appeal within 7 days.
The appellant appealed the decision to dismiss him and AP, Managing Director of the business heard the appeal. He had conducted numerous appeals during his tenure. The appeal meeting took place on 22nd August 2013. The appellant declined to view the CCTV footage at that meeting.
Prior to that meeting AP reviewed all the necessary documentation, the CCTV footage and had a full understanding of the issues involved. He satisfied himself that the complaint received from the third party was a legitimate complaint. During the course of the meeting the appellant accepted that he was using a mobile device whilst driving the coach and that he was fully aware of the company’s mobile phone policy and had signed to say that he fully understood it on 18th August 2008. The appellant had not been denied fair and natural justice. The appellant said he felt that the disciplinary process was undertaken too quickly and did not take account of his five year record. However, the appellant at no stage asked for further time to put forward his case. The CCTV footage showed the appellant removing both hands from the steering wheel and steering the coach with his elbow while he activated the device and then proceeded to drive the coach with only one hand on the steering wheel while he held the IPAD to his ear with the other hand. The witness said it was apparent from the CCTV footage that the appellant was significantly distracted and not fully concentrating on the road in front of him which constituted a serious breach of health and safety procedures and endangered other road users.
The appellant was confident that he had done nothing wrong and was only using his IPAD. AP did not believe it was safe to use this device whilst driving.
There had been a breakdown of trust and confidence in the appellant.
The witness upheld the decision to dismiss him.
Appellant’s Case:
BC a coach driver who worked for the respondent from 2010 to mid July 2014 gave evidence.
On occasion he had received phone calls from co-ordinators but had never answered them while driving. He had also received calls from AK. He returned calls when it was safe to do so. He was fully aware of the strict policy on mobile phone usage when driving the coach. Because his wife had been ill for some time he had left his mobile phone switched on while driving.
The appellant gave evidence. He obtained his coach licence two months prior to his commencement of employment with the respondent. His employment began on 15th September 2008. He had a very good working relationship with all the staff. He had a good work ethic and an exemplary record. His role entailed transporting passengers in a safe and timely manner. His induction and training occurred for a half day in 2008.
Safety was of utmost importance. He took pride in his work and always considered himself a professional and good driver. Driving through the city centre was very demanding and one had to be very alert.
The appellant was very aware that the use of mobile phones was prohibited while driving and that images posted on notice boards in the company referred to mobile phones only. He was not aware of the policy being updated to include an IPAD. He could not recall receiving a copy of the Mobile Communications and Driving Policy until he attended a disciplinary hearing in 2013.
There was a culture of confusion/fear among the employees. Employees in the canteen spoke of receiving calls on mobile phones and whether or not to answer them. It put the drivers in a compromising position. He had received a call from AK on an occasion informing him of his location and that he was driving in the wrong direction and to go back. He was new to job then and had his mobile phone switched on in case of an emergency. There were no communication devices in the coach at that time or radio systems.
He completed the Advanced Safe Driving Course in February 2009. AMcM had given the training on the new fleet of coaches.
On 22nd July 2013 he had worked a twelve hour roster. After the last passenger alighted the coach in Greystones he proceeded on to the M50 and took his route back to Dublin Airport. The M50 was not busy at this time. The doors were not closing properly which created a noise and the radio was not working either. He had a certain level of tiredness. It was approximately 19.27 and he switched off the internal lights. He was focussing on getting back to the depot.
He assessed the situation around him and the road conditions. He picked up an IPAD and activated it. He wanted something to keep him alert and focussed. It was a once off situation. He was consciously checking his mirrors and his vision was not impaired at any stage. He was completely in control of the vehicle on the day. While he acknowledged that he was not driving safely with an IPAD up to his ear, he felt in control of the vehicle. He never felt compromised.
On the evening of 24th July 2013 he received a call from AK. She said she had received a complaint from a third party that he had been using a mobile phone while driving the coach on the M50. He was immediately suspended with pay and asked to come into the office the following day. He was in a state of turmoil and shock and taken aback.
At the preliminary enquiry meeting on 25th July 2013 the appellant told AK that he was not on a mobile or connected to the internet and that he was purely listening to an audio radio on an IPAD. The coach radio was not working properly. He was permitted to view the CCTV footage. He requested details of the third party who had reported the incident but these details were declined. The appellant said his driving was not erratic and he had been watching his mirrors constantly.
Following the enquiry meeting the appellant was requested to attend a disciplinary meeting on 29th July 2013. His colleague MM accompanied him to the meeting. He was again questioned about the use of the IPAD. He did not feel his driving was impaired while using the IPAD. He had always been focussed. Everything happened so quickly and he was in shock being treated in such a manner. Some time after the meeting concluded AK returned with a letter dismissing him from his employment. He appealed his dismissal and AP conducted the appeal hearing on 22nd August 2013.AP addressed his points of concern. The appellant did not take his own notes at this meeting. Some days later AP telephoned him indicating that he was upholding the decision to dismiss him from his employment. He never received this in writing despite telephoning the company. He only received his P45. He then handed the matter over to his solicitor.
The appellant did his job to the best of his ability and tried to keep trouble free.
Since the termination of his employment the appellant endeavoured to secure work within the industry. He also applied for positions in the retail sector. He has not secured alternative work.
Determination:
In this case the appellant was suspended on full pay pending an investigation which was undertaken by the company’s Operations Manager. The appellant attended a preliminary investigation meeting on 25th July 2013 and was given an opportunity to view the CCTV footage of the incident complained of. He raised an explanation for his actions the fact that the device being used was an IPAD and not a mobile phone and this continued to be the claimant’s primary ground of appeal before the Tribunal.
At the conclusion of the meeting the appellant was advised that the matter would proceed to a disciplinary hearing which took place on 29th July 2013. The appellant was accompanied by a colleague and all parties again reviewed the CCTV footage. The appellant was advised by the Operations Manager that his actions constituted a serious breach of the company Health and Safety Policy and the Mobile Communications and Driving Policy. Following the disciplinary hearing and by letter dated 29th July 2013 the appellant was dismissed without notice on the grounds of gross misconduct in failing to abide by the company Health and Safety and Mobile Communications and Driving policies. The appellant was advised of his right of appeal.
On 22nd August 2013 an appeal hearing took place conducted by the Managing Director. The appellant declined the opportunity to have representation at the meeting or to again view the CCTV footage. The Managing Director considered fully all the grounds of appeal which had been submitted by the appellant by letter dated 1st August 2013. The Managing Director upheld the decision to dismiss and by letter dated 30th August 2013 communicated his decision to the appellant setting out in full his reasons and response to each of the points of appeal concluding that as a result of the breach of the Health & Safety and Mobile Communications and Driving Policies the appellant’s actions constituted gross misconduct warranting summary dismissal.
The Tribunal has carefully considered the evidence of all witnesses and the legal submissions of the parties’ representatives and is satisfied that the respondent company acted reasonably at all times and that substantial grounds existed justifying dismissal, that is, that the appellant’s actions constituted a serious safety risk and were in clear breach of company policies. Accordingly, the Tribunal upholds the recommendation of the Rights Commissioner and the appellant’s appeal fails. Consequently, the claim under the Minimum Notice and Terms of Employment Acts 1973 to 2005 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)