EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Danlami Umar -claimant UD303/2014
MN113/2014
Against
Bus Eireann T/A Bus Eireann -respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr N. Russell
Members: Mr J. Browne
Ms S. Kelly
heard this claim at Waterford on 17th April 2015
and 17th June 2015
and 29th October 2015
and 30th October 2015
Representation:
Claimant: Mr Cyril Cawley, Heffernan Foskin Solicitors, Otteran House,
South Parade, Waterford
Respondent: Ms Elaine Morgan B.L. instructed by,
Mr Hugh Hannon, CIE Solicitors, C/O Colm Costello,
Bridgewater House, Bridgewater Quay, Islandbridge, Dublin 8
Background:
The claimant was employed by the respondent as a bus driver when an incident occurred in the respondent’s Waterford bus depot on the 2nd November 2013. The bus that the claimant was driving collided with a parked car. CCTV footage of this incident from a number of cameras was viewed several times by the Tribunal.
An issue arose during the course of the hearing regarding CCTV footage and whether or not the company is entitled to utilise it as part of a disciplinary process. The Tribunal heard evidence from the Assistant General Secretary of the claimant’s trade union that an agreement exists between the respondent and the trade union which states that the company is not entitled to use CCTV footage for disciplinary purposes. The existence of such an agreement was unknown to the Services Manager of the respondent company, who investigated the collision that occurred.
A second issue arose during the hearing regarding the fact that the claimant was dismissed for a second time in relation to a further matter which occurred on the 11th November 2013 and which was also the subject of a disciplinary procedure. It was the respondent’s case that the Services Manager charged with investigating the original incident was threatened by the claimant following notification of his dismissal. A disciplinary hearing was conducted and the claimant was dismissed for the second incident but did not lodge an appeal. It was the claimant’s case that he was advised by his trade union that lodging an appeal was futile in circumstances where the appeal was pending for the first decision to dismiss.
Respondent’s Case:
The Services Manager who investigated the incident that occurred on the 2nd November 2013 gave evidence to the Tribunal. He first became aware of the incident when he received a telephone call from the driver of the car involved in the collision (hereinafter referred to as Mr. C). Signage is present in the bus deport to discourage drivers from parking there but despite this private vehicles enter the depot on a daily basis. On the CCTV footage the claimant could be seen parking the bus in bay 1 and later reversing the bus out of that bay and in doing so collided with Mr. C’s car. The Services Manager stated that there was no reason why the claimant needed to apply the opposite lock as he reversed, after a certain point. He would have expected the claimant to drive forward at that point instead.
Mr. C, the driver of the car, is a manager in a subsidiary company and both he and the Services Manager have offices in the same station building. Mr. C provided a written report of the incident to the Services Manager and it appeared from that report that it was the claimant’s intention to cause a collision. The respondent company invests in staff driver training over and above that required by law. If there is a concern regarding the temperament of a driver he or she can be stood down immediately.
The witness outlined that near-misses and passenger disputes should be recorded on a company incident report form. However, an accident report form must be completed within 48 hours when a collision has occurred. However, the witness did not receive this from the claimant until after the disciplinary process was instigated.
The Services Manager received the CCTV material on the 7th November 2013 and based on the content he asked the claimant to attend a disciplinary meeting on the 8th November 2013. The letter inviting the claimant to the meeting informed him that the meeting was in line with clause 2 of the disciplinary procedure and was regarding an accident at the bus station on the 2nd November and also his failure to complete an accident report form. Typed minutes of the disciplinary meeting were opened to the Tribunal but were neither agreed nor signed by the parties. The Service Manager’s original handwritten notes of this meeting were not available.
The claimant attended the disciplinary meeting with his union representative and brought along a copy of an accident report form which he had submitted to the Services Manager on the 7th November 2013. It was the Services Manager’s evidence that he received both report forms after the disciplinary process was instigated. The claimant had also submitted an incident report form dated 2nd November 2013 to the Services Manager on the 8th November 2013.
During the disciplinary meeting the claimant advised that he had completed an incident report form rather than an accident report form based on the advice from his trade union. This was confirmed by his union representative. The claimant also stated that he was unaware that an accident report form must be filed within 48 hours.
The Services Manager told the Tribunal that the claimant previously had a number of other accidents and had completed 8 accident report forms within the specified timeframe during the last three years. He also put this to the claimant during the disciplinary meeting as well as Mr. C’s account of the collision.
The claimant raised the issue that Mr. C’s car was illegally parked within the bus station. The claimant was also given the opportunity to view CCTV footage at the disciplinary and the Services Manager believed the claimant wanted to watch it but the union representative objected to it. However, the claimant told the Services Manager that he had viewed the footage after the incident had occurred. The Services Manager was not aware of any agreement between the company and the union regarding CCTV footage.
At the meeting the claimant said he had intended to reverse the bus into a vacant bay and leave it there while he attended to some personal business. The Services Manager did not accept initially that there was a vacant bay but he later accepted under cross-examination that bay 8 was vacant but stated that it would require the claimant to carry out an unsafe manoeuvre to park the bus in bay 8.
In reply to questions from the Tribunal, the Services Manager confirmed he did not take a statement from the Security Officer who was present at the time of the incident nor did he speak with the claimant prior to invoking the disciplinary procedure.
The Services Manager concluded that the claimant was aware of the presence of Mr. C’s car. The claimant confirmed in the disciplinary meeting that he had seen the car in his right-side mirror yet applied the opposite steering lock to direct his vehicle towards the car. He also concluded that the CCTV footage confirmed Mr. C’s account of the incident and that the bus had collided with the car; not the other way around as suggested by the claimant.
He found that the claimant was not an honest historian and had used the bus to intimidate or cause a collision which constituted gross misconduct and he applied the penalty of dismissal. A letter of dismissal dated 11th November 2013 was handed to the claimant informing him that the Services Manager had decided to impose a penalty of dismissal. The letter also informed the claimant of his right to appeal the decision within 7 days and that he would be suspended with pay pending the outcome the appeal, should an appeal be lodged. The claimant’s appeal was heard on 3rd December 2013 and was disallowed by the Appeals Board with one member dissenting.
On the second day of hearing the Services Manager was cross examined. He was trained by the Gardaí and the Road Safety Authority to carry out accident investigations. Although he is not an engineer, it is part of his role to investigate incidents and accidents, he reports to the Regional Manager. He does not know or have a personal relationship with Mr. C whose car was involved in the collision in question.
There are cameras all over the bus depot but only one camera captured the incident in question. The bus also has cameras; the position of the moveable bus cameras is checked every 5 weeks for accuracy. The bus camera footage could not be viewed inside the vehicle as the drivers need to be able to manoeuvre with only the aid of the mirrors. All of the mirrors are heated and have de-misters; as far as the Services Manager is aware the claimant never reported a de-mister fault to maintenance or mentioned a fault during the investigation. An additional mirror was added to the buses but this was an additional aid and not to cover a blind spot; there are four blind spots on a bus which a mirror will never capture. On the day in question the weather was bad but the wipers were on at a normal speed. As the weather was bad, in ease of the passengers the claimant reversed into the closest available bay to the station; he should not have changed bays as this would necessitate him reversing on the footpath and onto the road.
On foot of Mr. C’s letter of complaint and viewing the CCTV, the Services Manager invited the claimant to a meeting on the 8th of November. A letter of invitation dated the 7th of November was given to the claimant. The allegations against the claimant were not outlined at this stage as DL wanted to hear the claimant’s side of the story before formulating the allegations. This meeting was both the investigation and disciplinary meeting. The claimant was not given any notice that it was an investigation and/or a disciplinary meeting or that it could lead to his dismissal. The claimant was given Mr. C’s complaint letter at the meeting. The Services Manager was expecting the claimant to seek an adjournment to the meeting to consider his position and formulate his case. The Services Manager did not get a statement from the Security Officer as he did not witness the accident, he only heard the impact.
The Services Manager provided a typed version of his minutes but “may have got rid” of his handwritten notes as they had never been requested before. He accepted that he did conduct the investigation and make the decision to dismiss the claimant, effectively being the judge and jury. The deciding factor for the Services Manager was that the claimant was looking in his mirror for 4 seconds before the impact and was therefore aware of the vehicle so was using the bus to intimidate the car driver.
Claimant’s Case:
The Assistant General Secretary of the claimant’s trade union gave evidence that he was also a member of the Appeal Board which heard the claimant’s appeal. The claimant denied any wrong-doing at the appeal and stated that he had not steered the bus into the car intentionally. The Assistant General Secretary stated that it was his understanding that a preliminary meeting with a driver is conducted with a manager before deciding whether or not disciplinary action is warranted. At the time of the appeal he was aware that the union representative had refused to view the CCTV footage during the disciplinary process. The witness stated that CCTV cannot be used in a covert manner but during cross-examination he accepted that the cameras in question are not covert.
In relation to the issue of CCTV footage, the witness submitted a document to the Tribunal dated in 2012 which contained findings of a Deputy Director of the Labour Court which is used for facilitation purposes between the company and the union. During cross-examination it was put to the witness that the document related to the Ferrybank depot rather than the Waterford depot. The witness was adamant that an agreement existed between the company and the union that CCTV footage will not be used for disciplinary purposes.
The issue of the CCTV footage did not arise during the appeal hearing as the Chairman of the Appeal Board was aware it could not be used as part of a disciplinary process. The witness did not recall an objection being raised about the fact that it had been used by the Services Manager.
He did not think that the other Appeal Board members had viewed the footage as he made it very clear during the appeal that the CCTV footage must be disregarded. This was not reflected in his notes of the appeal meeting. He accepted it was possible the members had viewed the footage prior to the appeal hearing. The witness himself viewed the footage after hearing the claimant’s appeal.
The witness was recalled to give evidence later in the hearing regarding an industrial relations document he submitted to the Tribunal after a recess. The respondent’s document dated 4th March 2008 stated:
“the company have taken on board the concerns expressed by the trade unions and have now made change to the on board cab camera as request. As you are aware data from these cameras will not be used in any disciplinary matter.”
It was the claimant’s evidence that he transferred to the respondent from a subsidiary company in June 2008. The claimant outlined that before completing a report form he always consulted with his trade union as to which was the appropriate form to complete. Upon completion of the relevant form the claimant would submit it to the inspector and wait to see if an investigation meeting followed. The claimant recounted that in 2011 he had filed an accident repot form after hitting his bus off the back door of a parked vehicle. He heard nothing further after filing the report form.
In 2012, during bad weather conditions, he hit the bus off a bin and he again completed a report form but heard nothing further. On another occasion the driver of another vehicle was at fault when he hit the claimant’s bus. The claimant filed a report on that occasion but heard nothing further. On a further occasion the claimant’s bus was hit by another vehicle and his side mirror was damaged. The claimant again filed a report form but heard nothing further about the matter.
During the disciplinary meeting the Services Manager put it to him that he had previously had 8 accidents. The claimant told him that he would need to review his file to verify which form he had completed for the above instances.
On the day of the incident the claimant recalled that the weather was wet, windy and foggy. As he drove into the bus depot Mr. C’s car was parked on a double-yellow line in the bus depot. The claimant beeped the horn and Mr. C moved the car backwards somewhat. Subsequently, the claimant began to reverse the bus so that he could park it in bay 8. The claimant refuted the Service Manager’s contention that to park in bay 8 he needed to perform a dangerous manoeuvre with the bus. The company’s safety statement states that bus drivers should be assisted when reversing but it was the claimant’s evidence that this was not carried out.
The claimant recalled reversing the bus in a continuous motion and stopped when he realised he had hit something. He stated that he only saw the car at the time of the impact. The claimant immediately contacted An Garda Síochána and the inspector at the bus depot. Mr. C admitted to An Garda Síochána that he was parked in the “wrong place.”
The claimant contacted a union representative and was advised that he should complete an incident report form. The claimant duly did so on the day of the incident and he delivered it to the inspector’s office in the Ferrybank depot. A number of days later he received a telephone call from the Chief Inspector informing him that he should have completed an accident report form instead. The claimant apologised and said he would complete this form on the 7th November 2013 when he was next in the depot. The claimant was driving the bus for a number of days in the intervening period. On 7th November 2013 the claimant completed the accident report form and handed it to the inspector on duty.
He received the letter inviting him to the meeting on the 8th November 2013. His understanding was that the purpose of the meeting was for the manager to question him about the incident involving Mr. C’s car. He thought that a further process would follow if disciplinary action was being taken against him.
The claimant refuted the Service Manager’s evidence that he had already seen the CCTV footage. He had received the advice of his union not to look at the CCTV footage. At the disciplinary meeting the claimant first became aware that there was a suggestion he had deliberately hit the car and he told the Services Manager he had not seen the car. He was not warned that his employment was in jeopardy. The claimant also stated that he had also raised the issue of a broken demister on the bottom right mirror during the disciplinary meeting and reported in the depot as well.
In reply to questions from the Tribunal the claimant stated that he thought the outcome would be that he would be provided with a warning, sent for re-training or invited to attend a disciplinary meeting with the Regional Manager who usually dealt with disciplinary matters.
Following the meeting the claimant returned to work driving the bus. The Chief Inspector later handed him the letter of dismissal on 11th November 2013.
The claimant subsequently attended another meeting regarding abusive and threatening behaviour on 25th November 2013 towards the Services Manager which resulted in his dismissal for a second time. The claimant was cross-examined as to when he was notified of the outcome of the appeal in relation to the first dismissal and when he received notification that he had been dismissed for a second time.
The claimant gave evidence and was cross-examined on the effects of the dismissal, his resulting financial loss and the efforts he made to mitigate this.
Determination:
Firstly the Tribunal wishes to address the issue that arose around the use of CCTV evidence in this case. It is the Tribunal’s view that it was wholly appropriate for CCTV footage to be used in this particular case where an allegation of a serious assault had been made. There was no agreed video usage policy before the Tribunal and the parties could not agree on what the accepted practices were within the workplace. Irrespective of what those practices were, the fact of the matter is that it was in the public interest that this material be considered in the process. The Tribunal accepts, however, that the claimant was interested in viewing the footage but took the advice of his trade union representative in not doing so.
Secondly, there is the issue of the “second dismissal” communicated to the claimant by letter dated the 29th November and the significance, if any, of that matter to the proceedings currently before the Tribunal.
The respondent’s procedures which are reflected in a document agreed with workers’ representatives provides that any penalty proposed will not be implemented until a period of seven days has elapsed. Where there is an appeal within that seven days, it is common case that the penalty is not implemented pending the outcome of the appeal. In the circumstances, where a penalty of dismissal is proposed and appealed, the dismissal only occurs if the Appeals Board upholds the proposal to dismiss and the dismissal occurs when that finding is made.
The respondent’s procedures provide that the finding of the Appeal Board will be notified in writing. The question arises as to whether, where a decision to dismiss is made, the dismissal occurs on the date that the finding is made or when communicated in writing to the employee. The Tribunal considers that the dismissal occurs in the context of an appeal when the actual finding is made.
The claimant’s dismissal in respect of the incident which led to the case before the Tribunal occurred on the 3rd December 2013. The letter informing the claimant of his “second dismissal” dated 29th November 2013 in the normal course of postal services had been received no earlier than the 2nd December. As the “proposed dismissal” would not have taken effect until after the expiration of 7 days at the earliest at which point the contractual relationship between the employer and employee had already been served, this “second dismissal” is of no consequence and it would be inappropriate for the Tribunal to give it any weight or consideration in the current case.
On the substantive issue, the Tribunal in its deliberations is hugely disadvantaged by the absence of minutes or contemporaneous agreed notes for the meeting of the 8th November or, indeed for the appeal hearing of the 3rd December particularly when the Tribunal is tasked with resolving conflicts in evidence between the parties. Where the Tribunal has been unable to resolve those conflicts it has had due regard to the burden which is on the respondent in proceedings under unfair dismissals legislation.
The Tribunal has given lengthy consideration to the substantive issue before it. In considering the claimant’s claim that he was unfairly dismissed, the Tribunal has considered both the procedural aspects of the process and the decision arrived at.
The Services Manager received a very serious complaint. To suggest that anyone receiving such a complaint is immune from forming any initial impression is unrealistic. What is important, however, is whether any impression formed, evolved into a predetermination of the issue.
Having considered the totality of the evidence heard, the documentation received and procedures followed by the Services Manager, the Tribunal concludes that there was a significant element of predetermination from the outset such as to constitute a fundamental and fatal flaw in the entire process and which renders the dismissal unfair
There are a number of factors which have led the Tribunal to this conclusion. The investigation was poor. Conclusions were reached that were not reasonable in so far as they failed to countenance any other legitimate explanation. The process devolved into a hybrid of investigation/disciplinary meeting – the respondent’s own procedures were not followed.
It is accepted that the Services Manager acted in good faith and there is no suggestion that he had any personal issue with the claimant nor had any ulterior motive. He did, however, in the Tribunal’s opinion, accept Mr C’s perception of what occurred as relayed to him in his letter of complaint from the outset and then set about establishing the veracity of that perception rather than conducting an independent investigation and reasonable testing of all of the evidence.
Where was there any meaningful investigation here? The complainant was not interviewed. The claimant was not interviewed. A particular interpretation was given to the CCTV footage in light of the complaint received without due regard having been given to an equally acceptable innocent explanation. Without all issues being fully investigated the Tribunal cannot see how anyone could arrive at definitive conclusions.
The Services Manager was adamant that he was the investigator and, having adopted this role it was inappropriate for him to conduct a disciplinary hearing. It is the Tribunal’s opinion that the respondent’s own procedures recognise that there needs to be a separation between the investigator and the individual conducting the disciplinary hearing.
The Tribunal sees no separation between investigatory meeting and disciplinary meeting in this instance. They seem to have merged into a hybrid.
The letter calling the claimant to the meeting of the 8th November is wholly inadequate in setting out the objectives of the meeting or the specific charges faced by the claimant. The Services Manager introduces the claimant’s prior accident history which is an irrelevancy in the context of the actual allegation against the claimant and must surely have muddied the waters.
The failure to properly document that meeting is a significant concern as is a letter that proposes to dismiss the claimant but fails to set out clearly the grounds for that proposed dismissal.
A single meeting was held with the claimant from which his proposed dismissal followed and without any apparent effort having been made to enquire further into the matter. Indeed, the Services Manager agreed in evidence that he had “sprung” the allegation on the claimant at the meeting of the 8th November 2013. There following an inexplicable haste in concluding the matter.
It seems to the Tribunal that these significant shortcomings when viewed in the context of the Service Manager’s training which he proffered to the Tribunal as his credentials for undertaking an investigation of the complaint can be reconciled only against a backdrop of him having predetermined the claimant’s guilt.
The Tribunal is satisfied that the claimant was never informed nor did he have any understanding that his job was in jeopardy. After all, he was not suspended and was sent back to drive his bus after the meeting of the 8th November.
Further, a number of unsustainable assumptions appear to have been made by the Services Manager (for instance that the claimant could not reverse in order to park in bay 7-10 without reversing onto the public road) and he appears to have given little or no weight to factors that might have supported the claimant’s contention repeated throughout that it was an accident.
He did not enquire into the claimant’s contention that he had filed a notice at the Ferrybank depot about issues with the demistifier on one of the driver side mirrors. He appears to have given no weight at all to the possibility that the weather, which was extremely poor at the time of the collision, might be a factor. He does not appear to have considered as to whether the claimant calling the Gardaí to the scene might be suggestive of the incident being no more than an accident.
The respondent appears to have been of the view that the filing of an incident report form rather that an accident report form was somehow designed to stop the triggering of an investigation. The Tribunal believes that this was no more than an administrative error on the part of the claimant which was quickly remedied and it cannot understand how this was ever the subject of a disciplinary process. Again it speaks to a particular attitude towards the claimant and his guilt.
The Services Manager appears to have concluded that the refusal of the claimant to view the CCTV footage was because he believed it proved his guilt. Yet the Services Manager advised the Tribunal that the claimant was keen to see the footage but that his union representative objected. The Tribunal is satisfied that the use of CCTV in disciplinary matters was a contentious issue between employer and Union and that the Services Manager would have been aware of this and was therefore unfair in his characterisation of the claimant’s refusal.
The claimant was unfairly dismissed and is entitled to a compensatory award. The Tribunal in considering all matters is of the view that a fair award in this instance is € 25,000 and awards this sum to the claimant by way of compensation. By way of notice pay the claimant is awarded the sum of €3,600.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)