ADJ-00014518

Complainant

Respondent

Anonymised Parties

A driver

A transport company

Representatives

Ciara Galvin SIPTU

Company manager.

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-00018806-001

30/04/2018

The complainant has been employed as a bus driver by the Respondent since February 1995.

In May 2016 the complainant was reported by an inspector for wearing an ear piece whilst driving a bus. He was invited to attend a disciplinary hearing and was notified in early June 2016 that he was being dismissed from employment. After the intervention of his trade union the sanction of dismissal was lifted and reduced to a Final Written Warning and a one month unpaid suspension from work.

On 30th April 2018 this sanction was the subject of a complaint to the Workplace Relations Commission.

1.       On the 13th of May 2016, the Complainant made a call to Inspector F in Central Control to enquire as to the location of his bus as he was due to take up his duty. He used an earpiece to make the call as his hands were full. After the conversation ended, the Complainant boarded his bus. He forgot to remove his earpiece.

2.       When the Complainant pulled up to bus stop on Dorset Street, Inspector AC noticed that the earpiece was still in the Complainant’s ear. He asked the Complainant to remove the earpiece and put it away, which he did. Inspector AC then asked the Complainant was he was aware of the company policy (regarding the use of mobile phones or portable electronic devices while driving, introduced on the 29th of February 2016. The Complainant said he was and that “he had forgotten that the earpiece was in his ear”. The Complainant then apologised and undertook to not let it happen again. Inspector AC asked the Complainant to confirm his name and staff number, which he did, and told the Complainant that he would be reporting the incident to his manager.

Disciplinary Hearing.

1.       On the 20th of May 2016, the Complainant was charged with ‘misconduct’ on the basis of Inspector AC’s report and invited to a disciplinary hearing with Ms. DC on the 26th of May

2.       On the 25th of May 2016, Ms. DC interviewed Inspector AC regarding his report in respect of the Complainant and “earpiece use while driving” Inspector AC noted that he “clearly observed the Complainant wearing an earpiece in his left ear when he pulled into the bus stop” and that “while speaking to the Complainant, the earpiece was attached to his left ear”.

3.       On the 26th of May 2016, the Complainant presented for interview with Ms. DC, accompanied by SIPTU rep GC. Ms. DC noted that Inspector AC observed the Complainant wearing an earpiece while in control of a public service vehicle, “contrary to Rules and Regulations, in possible contravention of the law and against safe driving practice”.

4.       Ms. DC then read Inspector AC’s report, and the Complainant agreed with the description of events. He outlined how he had made a call to Inspector F, and he added that “failing to remove his earpiece when he boarded the bus was an oversight” and “he just completely forgot to remove it”.

5.       The Complainant agreed he was familiar with the policy, in particular the “Zero Tolerance” policy and “he just made a mistake”. The Complainant added that he had never been booked in his 21 years’ service with the company and had a good record. According to Ms. DC, the Complainant “understood the seriousness of this matter and was sorry that he had forgotten to remove his earpiece”. Ms. DC informed the Complainant that this record “would be considered”.

6.       SIPTU rep Mr. GC highlighted that there was no agreement in place in relation to the Zero Tolerance Policy, and that a number of requests had been made at Central IR level for a meeting to be held in relation to the policy. He added that it is not against the law to wear an earpiece while driving.

7.       Ms. DC stated that the policy was already implemented and read out the penalty for non-compliance (7 days’ notice of dismissal). She informed the Complainant that any decision made could be appealed, and his record “would be taken into account at an appeal stage”.

8.       SIPTU rep Mr. GC asked if the Complainant was okay to drive for his duty later that day. Ms. DC re-directed the question to the Complainant who agreed he was alright to continue his duty.

9.       On the 6th of June 2016, Ms. DC issued 7 Days’ Notice of Dismissal to the Complainant.

Appeal.

On the 9th of June 2016, the Complainant appealed the decision based on, but not limited to, the severity of the sanction. Although it was accepted at the appeal that the earpiece was not connected, because of the zero-tolerance policy the appeal was not upheld. On the 20th of July SIPTU official Mr. JM wrote to Head of HR Mr. PD seeking an urgent “mercy appeal” in line with company disciplinary procedures. At the mercy appeal on the 29th of July 2016, the sanction against the Complainant was reduced from dismissal to a final written warning and a month’s suspension from work. As no minutes or notes are taken at or issued from these meetings, the reasoning for this reduction is unclear and the appeal could as easily have gone the other way for the Complainant.

 4 Referral of policy to Labour Court

1.       Also on the 20th of July, Mr. JM (Siptu Senior Official) wrote a separate letter to Mr. PD expressing the alarm of the SIPTU Traffic Section Committee at the escalation by Management in relation to the portable devices policy, i.e. the outcome of the recent appeals under the policy. He highlighted that the policy was in clear breach of the concepts and the rights of individuals to natural justice/fair procedures, and that the policy was out of line with the legislation regarding this matter.

2.       The policy on portable electronic devices had been referred by SIPTU to the Labour Court on the 15th of July 2016 and was heard on the 26th of August. In their recommendation dated 30 August 2016 the Court found that the Company had prohibited the use of portable electronic devices by drivers while in charge of a company vehicle, and put staff on notice that if found using such devices while in charge of a company vehicle they were putting their continuing employment at risk. The Court recommended that SIPTU should recognise the adoption of that policy and notify their members accordingly.

However, the Court also found that:

“… the Company must when investigating any incidence of alleged breach of the impugned policy comply fully with the terms of its procedural and disciplinary procedures and with the terms of all relevant employment legislation. Furthermore, any sanction it decides to take against anyone found to have infringed the policy must be informed by the facts and circumstances of the case, be measured and proportionate and satisfy the tests set out in all relevant employment legislation.”

Following this recommendation, the Respondent company subsequently changed their policy to include staggering of disciplinary penalties such as verbal warnings, written warnings dependent on the circumstances.

Union Argument.

1.       The Complainant has worked for the Respondent company since February 1995. At the time of the incident in question, the Complainant had a completely clean record; he had never once been the subject of disciplinary action or a customer complaint in his then 21 years of service.

2.       The union’s argument here is twofold. First, we argue that the zero-tolerance policy with the automatic penalty of dismissal, was unfair in and of itself.

3.       We then argue that the penalties imposed on the Complainant as a result of the disciplinary process should never have applied in the first instance, as the Complainant was not in fact in breach of the Respondent company’s policy on the use of portable electronic devices on the 13th of May 2016.

Closing Remarks.

1.       As the Complainant had exhausted the internal appeals process by the time the Labour Court issued its recommendations and the company changed its policy, he had no avenue to have his sanctions reviewed internally and so made the difficult decision to seek vindication here today instead.

2.       We ask that you support our position that the Complainant was the subject of a miscarriage of justice in 2016. In particular, we ask that you find that the zero-tolerance policy and the imposition of dismissal with 7 days’ notice for what the company perceived to be a breach of their use of portable electronic devices was disproportionate and unfair.

3.       That the sanction was ultimately reduced is of little consequence as the damage was already done, and a reduction at a mercy appeal was by no means guaranteed. However, we ask you find that in the circumstances of a genuine mistake and the context of an unblemished record for 21 years, the imposition of a final written warning and a month’s suspension without pay was also disproportionate and unfair.

4.       We further ask that you find the employer acted unreasonably in not seeking proof that the Complainant was ‘using’ his earpiece while driving the bus on the 13th of May, and when it was established that the earpiece was not “connected” at the appeal stage, that a just and reasonable employer would have realised the policy had not been breached and dropped the matter entirely.  

5.       Finally, we respectfully ask that you include the following in your recommendations:

1)      That all record of the final written warning be expunged from the claimant’s file

2)      That the 4 weeks’ pay lost as a result of the suspension be paid now to the claimant

a.       The claimant was paid €3,190.93 net in May 2016 (Appendix 11), and the pay lost between the 29th of July and the 25th of August would reasonably be assumed to be a comparable sum.

3)      That compensation be awarded to the claimant as is just and equitable in the circumstances.

1.       The Complainant is employed as a bus driver since January 1995.

2.       On the 13th May 2016 the Complainant was observed by one of our Inspectors wearing and earpiece while driving one of our buses. This is in breach of our Zero Tolerance Policy on the use of mobile phones or portable electronic devices while driving. The matter was reported to the Complainant’s Manager and was subsequently investigated under the agreed Disciplinary Procedures.

3.       The Complainant was requested to attend a Disciplinary interview with his Manager on the 2nd June 2016 at which he was accompanied by his Trade Union Representative. On the 6th June the Complainant was advised by letter the outcome of the disciplinary hearing. The penalty imposed was 7 days’ notice of dismissal.

4.       The Complainant’s Trade Union subsequently appealed the penalty imposed to the internal appeals board chaired by an Independent Chairman.

5.       The Appeal Board Heard the Complainant’s appeal on the 19th July 2016 and the decision of the Appeals Board was to uphold the decision to dismiss.

6.       The Complainant’s Trade Union Subsequently lodged a mercy appeal on the 20th July 2016. Copy 

7.       The mercy appeal was heard on the 29th July and the decision was to reduce the penalty of dismissal to that of 4 weeks actual suspension and a final written warning in relation to the Complainant’s future conduct.

8.       The matter was referred to the Workplace Relations Commission for adjudication on the 30th April 2018, 20 Months after the Disciplinary sanction was imposed and we believe well outside the timeframe allowed for such referrals under the workplace Relations Act 2015.

Company position.

1.       The introduction of the Zero Tolerance policy on the use of mobile phones and portable electronic devices whilst driving was discussed with Trade union representatives of both trade unions at industrial relations meetings on the 29th September 2015 and the 26th January 2016.

2.       Four weeks prior to the introduction of the zero tolerance policy, the Company put in place an extensive safety communication campaign in each of its locations advising employees of the dangers of the use of portable electronic devices while driving. 

3.       The policy is applicable to all personnel who drive for the company in the course of their duty, bus drivers, mechanics, inspectors and managers.

4.       The campaign comprised of safety related posters being displayed, literature and RSA leaflets distributed in all locations by the local Safety Representative and pop up stands put in place in all work locations with safety related notices displayed on them.

5.       A copy of the zero tolerance was distributed to employees for a number of weeks prior to the Zero Tolerance Policy being introduced on the 29th February 2016. 

Timeline for the safety communications campaign in relation to the use of portable electronic equipment while driving. 

25th January 2016  

At a communications meeting involving a number of departments, it was agreed to use the following process to communicate the Zero Tolerance Policy to all employees.

·                     Posters 

·                     Pop-up stands 

·                     Information leaflets 

·                     Road Safety Authority literature 

·                     Policy booklet 

·                     The use of Safety representatives 

·                     Local communication workshops 

·                     Toolbox talks 

·                     Company-wide email 

·                     Plasma screens

26th January 2016 

At an Industrial Relations meeting with the trade union representatives from both trade unions the company advised them of the safety communication campaign to take place over the next few weeks prior to the introduction of the Zero Tolerance Policy.

28th January 2016 

Posters were displayed in each location and an information brochure from the Road Safety Authority was made available advising employees of the dangers of using portable electronic equipment while driving. 

3rd February 2016 

A further communications meeting was held and it was agreed that posters would be displayed advising employees of the disciplinary sanctions that would apply in the event of employees not adhering to the Zero Tolerance policy. 

8th February 2016  

A copy of the Zero tolerance policy was issued to employees and safety posters were displayed in all locations. 

All Managers throughout the Company were advised to speak to their respective teams to ensure the importance of this policy, and to highlight the potential penalty for breaching the policy was communicated to all employees. 

11th February 2016 

The Zero Tolerance Policy was again distributed to employees. The garage Safety Representatives from both traffic and engineering grades were put on paid leave to distribute and promote the RSA leaflet and to increase the general awareness of the upcoming policy. An article in relation to the policy was sent off to the printers to be included in the next edition of the Company’s newsletter.

12th February 2016 

More posters were displayed with a much stronger emphasis on the fact that breaching the policy would be deemed gross misconduct. These posters were displayed in all locations. Additional RSA leaflets were also distributed to all locations

15th February 2016 

18 information pop up stands with safety related posters were ordered.

17th February 2016 

The pop up stands were delivered to all locations and the stands were displayed in areas of high visibility. In addition to this, RSA leaflets on the dangers of using mobile phones while driving was distributed to all employees.

18th February 2016 

Safety Representatives were again in attendance in all locations to promote safety while driving and also distribute the RSA leaflets. 

19th February 2016 

Additional posters were distributed in all locations again outlining that the Zero Tolerance Policy would be introduced on the 29th February 2016. 

Throughout the following week local managers were out on the shop floor communicating to the employees in relation to the policy and promoting safe driving practices. 

25th February 2016 

All safety Representatives were put on paid leave to hand out notices and also to increase the general awareness of the upcoming policy. 

29th February 2016 

The Zero Tolerance Policy was introduced.

Summary and Conclusion.

1.       Prior to the introduction of the Zero Tolerance Policy on the 29th February 2016 the Company has continuously communicated to all its employees in relation to safe driving practices through its ongoing training courses, via the use of posters, driver safety handbooks, and safety messages on the plasma screens. Various meetings with the Trade Unions also took place over the years, to try and get the message across to employees regarding the unsafe practice of using portable electronic equipment while driving. Unfortunately, the number of drivers reported in relation to driving while using a portable devise continued to increase.

2.       The Safety, Health and Welfare at Work Act 2005 places specific duties on employers and all employees to take reasonable care to protect their own safety, health and welfare whilst at work, and also to protect any person who may be affected by their actions. The Company operates a fleet of 1,000 buses, covers over 60 million kilometers per year and carries just under half a million customers on a daily basis. Given the scale of our operation there is an ongoing responsibility to pro-actively manage the risks associated with the business and continue to strive to achieve the highest possible safety standards.

3.       Given the above I respectfully request the Adjudicator find that the Company have fully complied with the agreed disciplinary procedures and that the penalty imposed in the case of the Complainant was measured and proportionate given the seriousness of the policy breach.

In the Complaint form submitted to the Workplace Relations Commission by the Complainant he alleges that he was issued with a Final Written Warning and suspended from work for one month for an alleged misdemeanor. By no stretch of the imagination should a breach of health and safety rules be considered a misdemeanor.

There are no time limits in relation to submitting a complaint to the Workplace Relations Commission under section 13 of the Industrial Relations Act of 1990.

The Complainant’s union representative was adamant that the Complainant was not actually using the ear piece whilst driving the bus. I believe in the workplace we look at things on the balance of probabilities and cannot disagree with the conclusion that if the Complainant was wearing an ear piece he had been using it.

Following the Recommendation of the Labour Court issued on 30th August the Respondent Company subsequently changed the policy in relation to the use of mobile phones or portable electronic devices whilst driving.

Having considered all the facts of this case I believe that if the incident in question had taken place post Labour Court Recommendation the outcome of this case would have been different.

I accept and support that any breach of health and safety rules is a serious matter that warrants a serious outcome. I also view any Disciplinary Procedure as a corrective action and not a punitiveaction.

I recommend that the Final Written Warning issued should remain on the record and the one month suspension should be removed from the record and accordingly recommend that the Company pay to the Complainant a sum equivalent to the sum he lost at the time of his suspension.

Breach of Health and Safety rules.