ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000650

Complaint(s)/Dispute(s) for Resolution:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00000936-001	18/11/2015

Date of Adjudication Hearing: 02/03/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 13 of the Industrial Relations Act, 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Attendance at Hearing:

Complainant’s Submission and Presentation:

I wish to appeal a sanction. I have exhausted the internal process. I was not given a fair hearing as evidence which would have supported my position was not viewed. The case involved incidents on a commuter bus and allegations by passengers that the driver was using his mobile phone /accessing Facebook while driving. A passenger missed her stop as the driver had not noticed that she wished to alight. An altercation followed between the driver and a male passenger culminating in the bus pulling over and the Gardaí being requested to attend. Following the arrival and intervention of the Gardaí with the parties the bus completed its journey. The male passenger made a number of remarks to the driver that he found offensive and threatened to record the driver on his mobile phone. The male passenger later went on Social Media with his version of events and a large volume of complaints regarding the driver were made to the Respondent Bus company and on a website/Facebook page. The Complainant, the driver, requested the CCTV from the Bus but this was not available.

Respondent’s Submission and Presentation:

The incident on the Commuter service was fully investigated and went through the full internal Disciplinary process including an Appeal Stage. The Disciplinary process was formulated with the assistance of the then Labour Relations Commission.

Written evidence from passengers was presented. Following careful consideration of all evidence available the outcome was a “Severe” Warning and three days suspension.

The Appeals stage of the process (a three person Board) has a Trade Union nominee, a Company nominee and an Independent Chair.

The Complainant was at all times represented by SIPTU.

Decision:

Section 41(4) of the Workplace Relations Act 2015 and Section 13 of the IR Act. 1969 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under both Acts.

Issues for Decision:

Appeal against sanction. Allegation that the Complainant was not given a fair hearing as evidence which would have supported his position was not viewed.

Legislation involved and requirements of legislation:

Industrial Relations Act, 1969

Decision:

The Sanction imposed by the Respondent is this case was a three day suspension and a “Severe warning” – not a trifling sanction for an employee. A high standard of proof is required here.

However the case is complicated as it is at the forefront of the interaction of what is commonly called "Social media" and employment practice. It is uncharted waters.

The Driver concerned was rightly concerned with the serious threat from the male passenger to put him and his driving / work performance on Social Media. While not justifying the driver in stopping the bus at the side of the road the excerpts from a Social Media website related to this incident presented as evidence /exhibits by SIPTU absolutely confirm these fears. An allegation that the driver was endangering public /passenger safety was openly made on this Social Media site.

Natural Justice and the Right of Reply are not easy bedfellows with a Social Media campaign directed against a Company or its employees.

To allow a full investigation the Respondent was not able to produce CCTV – apparently it was not working on that particular service / bus on that day. The situation was decidedly ambiguous in relation to the use by the Driver of a mobile phone while the bus was in motion. The use by the Respondent’s Bus Controllers of the mobile phone as a means of operational communication with Bus Drivers in relation to this particular commuter service was also somewhat unclear. I noted the public statement of the Respondent that mobile phones are not used in this context.

No effort was made or offered in evidence by the Respondents to interview the male passenger – he openly declared his identity on the Social Media site. Only written letters of complaint from passengers were used and the Complainant made the observation that many of these were largely hearsay from individuals and not actually direct witnesses.

The Respondent is to be complimented on the efficiency and detail of the Hearings including the Independent Appeal.

I feel that the Respondent organisation underestimated the negative impact of the Social Media threat by the male passenger on the driver. The extensive Social Media materials exhibited by SIPTU clearly support this view.

However the Driver did stop the service by pulling over the bus and caused severe inconvenience to passengers resulting in a lot of negative publicity to the Respondent Company which operates in a competitive market.

Accordingly I make the following Recommendations.

The Respondent and the Representative Bodies enter negotiations as to how best to handle “Social Media “situations such as happened here. A policy needs to be agreed. An employee is entitled to Natural Justice in the protection of his reputation as is the Respondent Company and its passengers.
Operational clarification is immediately required between the parties as to the methods of Radio /Electronic communications in use in the scheduling and monitoring of bus services & driver communications.
The sanctions applied to the Driver / Complainant in this case, a three day suspension and a Severe Warning are set aside. A full refund is made to the driver of all monies lost as a result of the suspension and the Severe Warning is to be reduced to a Reprimand.

Dated: 31 May 2016