UDD1932

Factual Matrix

There is very little, if any, dispute between the Parties in relation to the key facts that are relevant to the determination of the within appeal. Those facts can, therefore, be recited succinctly as follows.

The Respondent operates the Luas light rail network in the Dublin area. The Complainant was employed by the Respondent (or its predecessor) as a Luas tram driver from May 2005 until his summary dismissal on 17 August 2017. As a Luas tram driver, the Complainant was categorised as a “safety critical worker” within the meaning of the Railway Safety Act 2005. In order to mitigate against the risk that arises from driver fatigue, the Respondent – in consultation with the SIPTU Trade Union – has put in place a roster system for drivers that provides for adequate rest period. Luas drivers are also contractually prohibited from engaging in outside employment during their rest periods without the express permission of the Respondent. During his employment with the Respondent, the Complainant never sought or received permission to engage in additional outside employment.

In April 2017, a member of the public complained that he/she had seen the Complainant driving a taxi on a regular basis on Friday and Saturday nights. The Respondent retained a private investigator who observed the Complainant driving a taxi and receiving fares on 27 and 28 May 2017. The Complainant was advised by Mr Balmer, by letter dated 31 May 2017, that he had allegedly been observed operating a taxi outside of his rostered hours. Mr Balmer subsequently provided the Complainant with a copy of the private investigator’s reports, photographs, the Respondent’s disciplinary policy and the original complaint submitted by the member of the public (with names redacted). The Complainant was also advised he would have an opportunity to view the CCTV footage and listen to the audio recording made by the private investigator in advance of the investigatory meeting originally scheduled for 16 June 2017 but which in fact took place on 21 June 2017.

The Complainant did not deny having driven a taxi on the nights identified by the Respondent. He admitted that he had driven his wife’s taxi in a very limited way and from time to time in order to assist her following her diagnosis of a serious medical condition in or about February 2017. He told Mr Balmer that he did not personally retain any fares as that was income which was declared by his wife to Revenue. He also stated that he had kept his PSV licence up to date in order to have the option of reverting to driving a taxi following his retirement from the Respondent. He also continued to be a named driver on his wife’s taxi insurance policy.

In a follow up email to Mr Balmer, after the investigation meeting, Mr Richard McCarthy stated:

• “As Michael was only backfilling occasional hours at his wife’s behest on an occasional and infrequent basis, he was of the belief that he wasn’t doing anything wrong or engaging in any forbidden activity. As stated at our meeting, Michael made no attempt to deceive the Company or conceal his identity on the occasions that he was assisting his wife.”

• “Having carefully considered all the evidence, I find that a disciplinary hearing in relation to the matter is warranted. The charge for the purpose of the hearing will be as follows

  ‘That you have been engaging in Other Paid Employment without permission from the company by driving a TAXI with the Registration number 07-WM-2585

  For the avoidance of doubt, this is deemed to be a Gross Misconduct charge.”

A disciplinary hearing into the above charge took place on 31 July 2017. It was conducted by Mr Declan McEvoy. Again, the Complainant admitted that he had occasionally driven his wife’s taxi in the circumstances outlined in Mr McCarthy’s email to Mr Balmer but denied that he had ever infringed the daily or weekly rest break requirements specified in the Organisation of Working Time Act 1997 in so doing although he had kept no records of the dates and times on which he had driven the taxi. Mr McEvoy issued his written decision by letter dated 17 August 2017 in which he informed the Complainant that he “found the charge proven” and had decided, as a consequence, that his employment with the Respondent would be terminated with immediate effect. The Complainant was advised of his right to appeal and the time limit for so doing.

The Complainant exercised his right of appeal. The appeal was considered by Mr Seamus Egan, Performance Director. The Complainant was represented at that appeal by a full-time SIPTU official and by his shop steward. Both written and oral submissions were received by Mr Egan who ultimately rejected the appeal by letter dated 23 November 2017. As per the Respondent’s procedures as agreed with SIPTU, the Complainant had a right to a further appeal to the Respondent’s managing director, Mr Peter Lunden-Welden. The Complainant was again represented by a full-time SIPTU official and by his shop steward at this further appeal on December 14, 2017. By letter dated 19 December 2017, Mr Lunden-Welden notified the Complainant that he was upholding the original decision to summarily dismiss the Complainant (with effect from 17 August 2017).

The Parties’ Submissions

Mr Dowling BL referred the Court to dicta of Noonan J inBank of Ireland v Reilly[2015] IEHC 241 expressing agreement with the approach taken by Judge Linnane of the Circuit Court inAllied Irish Banks v Purcell[2012] 23 ELR who in turn had endorsed the ‘band of reasonableness’ test Lord Denning MR said should be applied by tribunals and courts called on to adjudicate in unfair dismissal claims:

• “The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”British Leyland UK ltd v Swift[1981] IRLR 91, at page 93.