Complainant

Respondent

Anonymised Parties

A Bus Driver

A Bus Company

Representatives

Ms A McGowan

Mr P McGowan

Mr Allen Parker

Ms A Keeley

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00006961-001

13/09/2016

The complainant was employed by the respondent as a Bus Driver. He commenced his employment in April 2015 and was summarily dismissed for gross misconduct on 24th August 2016. The complainant was paid €12.15 gross per hour. The complainant claims that he was unfairly dismissed by the respondent. Further information was submitted by the parties after the adjudication hearing. The most recent correspondence was received on 15th May 2018.

The respondent contends that the dismissal was not unfair. The respondent contends that following a disciplinary process the complainant was dismissed for gross misconduct. Specifically, the respondent stated that the complainant was observed on his mobile telephone while driving the Bus which the respondent stated is in clear breach of its mobile phone policy. The respondent confirmed that the policy states:

“this policy applies to all electronic devices used to communicate and which have the potential to distract drivers from their obligatory duties.” The policy confirms that the reference to driving “shall mean in control of a vehicle even when the vehicle is stationary with the engine running.”

The respondent stated that it reviewed CCTV footage of the incident after the complainant had sought the CCTV in relation to another matter. The respondent contends that once the complainant was seen on his mobile phone while driving the bus, it had no option but to invoke its disciplinary procedures. The respondent contends that it carried out an investigation and disciplinary process in line with its procedures. The respondent submits that it acted reasonably in its decision to dismiss the complainant given the seriousness of the breach of policy. The respondent confirmed that the complainant was also provided with an appeal carried out by an independent third party.

The complainant contends that he was unfairly dismissed. The complainant stated that on the day in question (3rd August 2016) he had been verbally abused by his Manager (Mr A) on a number of occasions and had reported this to the Operations Manager. The complainant stated that he subsequently sought the CCTV footage in relation to the incidents of verbal abuse. The complainant confirmed that following a short period of sick leave he was informed on his return to work that the CCTV footage which he had requested showed him on his mobile telephone while driving the bus.

The complainant stated that the Operations Manager (Ms B) conducted an investigation into the alleged incidents of verbal abuse and subsequently conducted the disciplinary process in relation to the contents of the CCTV footage vis a vis the use of the mobile telephone.

The complainant confirmed that, following the disciplinary process held on 23rd August 2016, he was issued with a written warning in relation to his interaction with Mr A on the 3rd August 2016 despite the fact that he had felt unsafe and had been verbally abused on a number of occasions that day. The complainant stated that he was summarily dismissed on the same date for gross misconduct in relation to the use of the mobile telephone.

The complainant stated in evidence that he had answered an emergency call from his wife, a number of minutes before he was due to start work. The complainant confirmed that he was in a carpark at the time, had no passengers on the bus and the bus was moving only because he was moving up to a bus stop that another bus was moving away from. The complainant confirmed that it was the first time he had received an emergency call from his wife as she too is a professional driver and is also very conscious of safety issues. The complainant stated that the bus moved forward only a number of feet and the entire period of movement was no more than approximately five seconds.

The complainant stated that he was notified on the 24th August 2016 of his dismissal and was informed that he would receive a letter the next day. The complainant stated that he did not receive written notification of the dismissal until 31st August 2016 and immediately submitted his appeal. The complainant confirmed that an appeal hearing took place on 7th September 2016 and that he was written to on that same day confirming that the dismissal had been upheld on appeal.

In relation to this complaint I find as follows:

The complainant was summarily dismissed for gross misconduct for a breach of the respondent’s mobile phone policy. The breach involves answering an emergency telephone call while moving the bus up into a vacant position at a bus stop, with no passengers on board and within a confined carpark.

I have reviewed the CCTV footage on this issue. The footage supports the position of the complainant that it was literally a brief move forward, for a minimal number of seconds. I find this breach to be negligible on the basis of the complainant’s evidence and the contents of the CCTV footage. This situation is entirely different to a blatant disregard of policy where a Driver, on a public road with a bus full of passengers uses a hand held mobile phone and engages in conversation. While the latter is an absolute breach of policy, I do not accept that the actions of the complainant were such that it warranted summary dismissal for gross misconduct.

The Operations Manager conducted both the investigation and disciplinary processes which is less than best practice. I accept that a third party conducted the appeals process but the respondent could have engaged an external person to conduct the disciplinary process in circumstances where the complainant’s job was in jeopardy. The appeal that was conducted on 7th September 2016 resulted in a letter issuing that same day which confirmed that the dismissal was being upheld. In those circumstances I find that the respondent gave little consideration to complainant’s grounds of appeal.

Having listened very carefully to the evidence of the parties to this complaint, I am of the view that when the complainant sought the CCTV footage in relation to the incidents of verbal abuse on the same day, the respondent used the footage of the mobile phone to invoke its disciplinary procedures and dismiss him. I find the actions of the respondent in dismissing the complainant to be disproportionate to the matter at hand.

The Unfair Dismissals Act, 1977.

Sections 6(1) and 6(4) of the Unfair Dismissal Act provide as follows:

6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

6.(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Gross Misconduct

The Labour Court in DHL Express (Ireland) Ltd. v M. Coughlan UDD1738 stated that established jurisprudence in relation to dismissal law in this jurisdiction takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. This is evidenced, for example, by the determination of the Employment Appeals Tribunal in Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissal Cases and Commentary (IBEC,1996)) wherein the Tribunal states:

‘Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only to cases of very bad behaviour of such a kind thatno reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so.’

Band of reasonable responses.

As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as set out by Mr. Justice Noonan in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated:

 “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.”

In all of the circumstances of this case I find that the complainant was not guilty of gross misconduct and that the decision to dismiss him was not within the range of reasonable responses of a reasonable employer. Accordingly, I declare that the complainant’s complaint of unfair dismissal is well founded.

Redress

The redress options were explained to both parties at the adjudication hearing. The respondent stated that due to what occurred and the related breach of trust, it felt reinstatement or reengagement were not appropriate. The complainant stated that he enjoyed his job and his hours of attendance suited his personal and family circumstances.

I do not accept that a breach of trust has occurred in this case. The events of the day in question were unfortunate but I do not believe the complainant should have lost his job as a result. In all of the circumstances of this case, I am of the view that the appropriate redress is to return the complainant to his position within the organisation.

Having considered the submissions of both parties to this complaint, and all of the evidence adduced at the hearing of this complaint, I find that the complaint succeeds.

For the avoidance of any doubt, the complainant should be reinstated to his role with effect from 24th August 2016 and be retrospectively paid all salary and any other payments that would have been paid to him since that date.

The respondent is directed to reinstate the complainant and discharge all relevant payments to him within 6 weeks of the date of this decision.