ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00012790
Parties:
| Complainant | Respondent |
Anonymised Parties | A Transport Worker | A Transport Company |
Representatives | SIPTU | Marcus Dowling B.L. instructed by Byrne Wallace, Solicitors |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00016851-001 | 16/01/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00016851-002 | 16/01/2018 |
Date of Adjudication Hearing: 18/05/2018
Workplace Relations Commission Adjudication Officer: Pat Brady
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Respondent’s Case:
The fact of dismissal is not disputed. The complainant was dismissed as a result of engaging in unauthorised external employment, which, on account of the additional demands it placed on his time, the respondent viewed as a threat to his capacity to discharge his highly responsible role within its employment. The respondent is highly regulated; including, in addition to general safety, health and welfare at work provisions, by specific statutory provisions in its sector and it must take these responsibilities very seriously. The complainant’s contract of employment contains explicit exclusion of working other than for the respondent without authorisation, and to do so is included as an example of gross misconduct. It states; You may not, without the permission of the company, whether directly or indirectly, undertake any other duties of whatever kind during your hours of work for the company. You may not, without the prior written consent of the company, engage in any business or employment outside your hours of work with the company’ This document was seen and signed by the complainant. In addition, a document reinforcing this point was sent to all employees, including the complainant in 2011. The respondent received an anonymous query about its employees working outside its employment from a person who had observed the complainant driving a taxi. There is no impediment to acting on anonymous information and it is provided for in the Protected Disclosures procedures. The motive of a person making the report is irrelevant. In any event, there was no breach of the complainant’s privacy as the activity alleged took place in a public place. The respondent undertook an investigation and the investigator observed the complainant accepting a number of fares. The investigator also hailed the complainant to become a fare paying passenger and paid a fare of €5.00. There was a disciplinary process. The explanations given by the complainant were not considered acceptable. They were, in essence, that the operator of the taxi business was his wife and he only stepped in to cover emergencies. In doing so he acknowledged that there had been other occasions when this happened. How the complainant was paid is irrelevant; the activity was gainful employment. The respondent conducted an investigation for the course of which the complainant was suspended on full pay and he was represented by his trade union throughout. This concluded that disciplinary proceedings were warranted and they proceeded on the basis of a charge of gross misconduct. These were conducted having full regard to the complainant’s rights. In the course the hearing the complainant did not accept that his conduct was a potential challenge to his capacity to discharge his duties with the respondent in a safe manner. Having regard to the seriousness of the matter it was decided to dismiss the complainant. There was an appeal, and again the complainant was fully represented, but it did not succeed and the dismissal was confirmed. There was a second appeal to the Managing Director, and this too failed. The respondent draws attention to the principles set out in Bank of Ireland v Reilly which are considered below. It concludes by saying that the decision to dismiss was a proportionate sanction in the circumstances, in particular as the complainant’s own union accepted in a 2009 collective agreement that such conduct as ‘gross misconduct’. |
Summary of Complainant’s Case:
The complainant says that the conduct alleged should be viewed as a ‘minor infringement’ of company policy, specifically because the actual misconduct was that he failed to have the work he undertook on the night in question specifically authorised. This would have been difficult as it arose from an unforeseen episode of illness on the part of his wife and her inability to undertake the taxi work on the night in question. She is the licensed taxi operator. Therefore, the respondent failed to establish that the complainant ‘engaged in other paid employment’ other than in respect of the single evening referred to. In that context, the sanction of termination is not proportionate and the actions of the respondent are unreasonable. The complainant also challenges the reliability and motive of the complaint made by a member of the public. It is suspicious that the wording used in the question initially raised by the member of the public mirrors exactly that used in the respondent’s policy. In the complainant’s view, the complaint was malicious, and possibly written by another employee of the respondent to cause damage to the complainant. The level of knowledge of the complainants’ movements would not be known to a person who had simply casually observed them. Also, the person making the complaint was aware of detail about the taxi business operated by the complainant’s wife, and other details suggesting that this was not a casual inquiry but someone who knew the complainant well and set out to cause him harm. The complainant says that the respondent breached the Data Protection Act in engaging a private investigator who undertook covert surveillance of the complainant. The complainant has never denied his occasional involvement with the taxi business and has been forthright at all times about it. But, the respondent acted on the basis of only three and a half hour’s surveillance over a two night period and the only evidence of a fare being taken was one in the amount of €5.00. The complainant says that the respondent has not followed a key element of its own procedures where it makes specific provision for ‘a Just Culture’; specifically, that an employee will not be punished for ‘unintentional omissions or decisions’ although repetitive actions will be. In this case, those principles have not been applied, as the incident involved an unintentional breach. There were other options open to the complainant, especially in the light of his long service with the company. The complainant had offered to give undertakings that there would be no repetition of the incident which were not considered. |
Findings and Conclusions:
The policy on which the respondent relies is clear enough. You may not, without the prior written consent of the company, engage in any business or employment outside your hours of work with the company’ The complainant’s representative conceded that ‘by and large’ the respondent followed the normal disciplinary policies as set out in its own procedures in respect of investigation, discipline and appeal. I find that they did. However, it essentially argued that what may be seen as a ‘zero tolerance’ policy on the facts of this case breaches what is known as the ‘Just Culture’ provisions in the respondent company. The original case proceeded on the basis on a single evening’s episode, some five fares, although the complainant conceded that in emergency situations he had done undertaken taxi work for his wife in the past. He told the internal investigation that he did not know how many times he had driven the taxi; ‘it was really ad hoc, so I would just help [his wife] out. No set criteria, no set anything’; the complainant stated. He said he did not collect any fares, and that these would be forwarded to his wife later. The ‘whistle blower’ claimed that the complainant ‘arrived on a regular basis (Friday and Saturday) at [the taxi base] where he swaps from his private car and into his wife’s taxi and works til 2-3am.’ The manner in which the matter came to the respondent’s attention is suspicious indeed. On the basis of the language used in the somewhat disingenuous inquiry and the level of the whistle-blower’s knowledge of the affairs of the complainant in this case, and of his family, were seen by the complainant as being suggestive of it not being a random member of the public driven by a sense of serving the public interest. (although, the identity of the whistle blower is known to the company; it was not an anonymous complaint). In particular, the claim that he (or she), in reference to the complainant had ‘seen an individual that is the spitting image of this man driving [the respondent vehicle] a good while back-took me a while to place him’ was understandably scorned by the complainant’s representative as entirely lacking in credibility. Ultimately, this does not matter. The respondent has a duty to apply its own rules once any alleged breach of them comes to its attention and regardless of the motives of any person doing so. So, it was required to act, and the complainant conceded that it did so fairly, with the exception of the ‘Just Culture’ argument. The ‘Just Culture’ policy, as opened to the hearing is a safety related document. As noted above it distinguishes between unintentional omissions or decisions and repetitive, serious or deliberate breaches. The complainant’s position as a public transport driver requires a high level of application and concentration. He may have the safety of a very large number of members of the public who are his passengers in his hands. The respondent bases its case on both its regulatory obligations, but perhaps more so in this case, its obligation to monitor and prevent driver fatigue, primarily through enforcement of its rest periods, although the complainant drew attention to the inconsistency in the permitted levels of overtime. This may not help his cause, as any external work unknown to the company in addition to permitted overtime would create an even greater risk to passenger safety. The respondent relied on the decision in Bank of Ireland v Reilly [2015] 26 E.L.R 229 which sets down the correct role of an adjudicator and which of course is the guiding principle in cases such as this. That case restated and set the ‘range of reasonable responses’ test, and stated that it is not a matter for the court/adjudicator to substitute its own judgement for that of the employer; the question is ‘whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned’. For completeness, I find that the alleged conduct in this case does not fall within the exceptions set out in the ‘Just Culture’ document, and for that and the other reasons given above therefore the dismissal is fair. No submissions were made on the complaint under the Minimum Notice & Terms of Employment Act, 1973. I must assume that the complainant was dismissed without notice because the charge was one of gross misconduct. In any event, I do not uphold that complaint. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
For the reasons set out above I do not uphold complaints CA-00016851-001 or 002 and they are dismissed. |
Dated:
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Unfair dismissal, mitigation. |