Complainant

Respondent

Anonymised Parties

Bus Driver

Transport company

Representatives

National Bus and Rail Union

Stratis Consulting

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-00035504-001

30/03/2020

Following a complaint from a member of the public the respondent reviewed CCTV footage which the respondent contends showed the complainant on his mobile phone whilst in control of his bus. They instigated a disciplinary process following which he was dismissed. The complainant contends the respondent should not have used the CCTV footage which was unrelated to the original complaint, the process was flawed, and the sanction was out of proportion and therefore the dismissal was unfair.

The respondent submits that a complaint was made by a member of the public that a bus was parked on a pedestrian crossing on 9 January 2020. In assessing the complaint CCTV footage was viewed which indicated the driver (the complainant) may have been using his mobile phone. The use of a mobile phone while in control of a bus is strictly forbidden and classified as gross conduct (in accordance with their Mobile Phone Policy). Based on this evidence the respondent invoked the disciplinary policy and investigated the matter fully and, given the seriousness of the allegation, the complainant was suspended on pay pending the outcome.

A disciplinary investigation meeting was held on 10 February by the Assistant Operations Manager (AOM). At this meeting the complainant acknowledged he had used his mobile phone on the day in question whilst in the cab of his bus. Based on this and other evidence the respondent decided to move to the next stage of the process and hold disciplinary hearing.

The complainant was invited to the hearing in a letter which clarified the nature and seriousness of the allegations. The hearing took place on 20 February and was conducted by the Operations Manager (OM). The outcome of the disciplinary hearing was confirmed by letter dated 3 March, which re-affirmed the complainant’s employment was being terminated for gross misconduct.

The complainant appealed this decision and an appeal hearing took place on 12 March. The outcome was confirmed by the Head of Operations (HoO) on 20 March. The nature of the appeal focused entirely on the use of CCTV and issues around data protection. The dismissal was upheld.

The respondent submits their policies and the complainant’s contract make it clear the use of a mobile phone while in control of a bus is strictly forbidden and clearly classified as gross misconduct. They also contend their procedures were carried out in compliance with SI 146 of 2000. In these circumstances the respondent submits the dismissal of the complaint was reasonable.

The complainant submits that on 6 February 2020 the OM instructed various managers to suspend him due to CCTV footage. He attended an investigation meeting on 10 February. The CCTV was adjourned to obtain a copy of the respondent’s CCTV policy, but it was not produced. This was not in the minutes of the meeting. The CCTV policy was not given to the complainant at any stage during the disciplinary process.

A disciplinary hearing took place on 14 February and was conducted by the OM and a decision to dismiss was given after a ten-minute adjournment of the hearing. The appeal hearing on 12 March upheld the decision to dismiss.

The complainant submits his dismissal was unfair as he did not get a copy of documents the respondent relied on; their CCTV policy. This was requested at the investigation and during the disciplinary hearing but was not given. Nowhere in the employee handbook or bus signage does it inform staff that CCTV footage will be used in disciplinary proceedings.

Furthermore, the data used by the respondent was obtained contrary to their own CCTV policy. It was viewed as a result of a complaint from a member of the public. Therefore, the respondent illegally scrutinised unrelated footage without the complainant’s consent.

Also, the OM who carried out the disciplinary hearing and made the decision to dismiss the complainant had prejudiced himself in his email of 6 February, which stated: the complainant “is due to sign on at 1550 tomorrow for duty 075 – when he arrives, please can you suspend based upon the below footage. What is especially concerning is the clip where he is engrossed in his phone for 35+ seconds and misses the green traffic light!!” The complainant submits this shows that the OM could not be seen as a fair and independent person.

The complainant submits the respondent failed to take into account his excellent work record or his personal circumstances at the time, in their considerations during the disciplinary process. This was shown when the complainant was informed ten minutes after the end of the disciplinary hearing that he was being dismissed. It also demonstrated that no lesser sanction was considered.

The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent. Section 6 (1) of the Unfair Dismissals Act 1977 states: “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.”

The respondent says they investigated a complaint from a member of the public and viewed CCTV footage around the time the incident complained of was said to have occurred. This footage showed the complainant in the cab of his bus holding his mobile phone. On the basis of this footage the respondent instigated an investigation of the complainant’s use of a mobile phone whilst in control of a vehicle and suspended the complainant from work. The notes of the investigation meeting with the complainant show confusion as to whether there a CCTV policy in place. However, it is clear to me the investigator relied on the Policy on the use of Mobile Phones in carrying out his investigation. As a result of the investigation the complainant was called to a disciplinary hearing. The notification made it clear the hearing was to look into a case of gross misconduct due to the use of a “mobile phone on several occasions within the cab of a bus while driving on Thursday 09th January 2020.” The hearing centred on the use of the mobile phone, but the use of the CCTV footage was disputed by the complainant and his representative.

The mobile phone policy states “a proven breach of points 1 and 2 will likely be considered as Gross misconduct.” The respondent dismissed the complainant because they concluded he used his mobile phone whilst in control of his bus. I did not see the CCTV footage but stills submitted indicated this took place. The respondent contends these were “substantial grounds justifying the dismissal”.

The complainant accepts he was using his mobile phone but has three arguments that his dismissal was unfair. Firstly, the CCTV footage was used illegally. The CCTV footage of the complainant only came to light when it was viewed as part of another investigation. My conclusion is that the person who viewed the footage would have been negligent if they had not acted on it. The complainant should have been shown the respondent’s CCTV policy as he would have read the paragraph on monitoring which reads: “There may be occasions when monitoring reveals an incident involving an employee that needs to be addressed. In such cases the employee will be made aware of the issue and, if appropriate, the evidence will be used as part of an investigation in accordance with the Company Performance and Conduct Guidelines.” This is what the respondent did, but they relied on the Mobile Phone policy and implemented the disciplinary procedures in the Company Performance and Conduct Guidelines. The CCTV footage was evidence that was used but the CCTV policy was not the procedure used by the respondent to instigate disciplinary proceedings.

Secondly, the complainant contends that the OM, by the wording of the email he sent on 6 February, showed that he had already formed a view of the complainant’s conduct and this made him unsuitable to conduct the disciplinary meeting on 20 February. I have read the notes of that meeting and I conclude that the OM gave the complainant opportunities to explain what happened. His decision to dismiss was given verbally very shortly after the end of the hearing but I conclude the decision was based on the evidence and the complainant’s failure to adequately explain his actions.

Thirdly, the complainant contends the respondent did not take into account his previous good record or his personal circumstances at the time. I conclude the complainant was found guilty of gross misconduct and the respondent considered dismissal to be the only sanction available. If the charge had not been gross misconduct, then the respondent would have been able to take other circumstances into consideration when looking at a suitable sanction.

I have considered all the evidence, both written and verbal, given by both parties and I find the dismissal was not unfair.

For the reasons given above, pursuant to Section 8 of the Unfair Dismissals Act 1977, I find this complaint is not well-founded and conclude that the Complainant was fairly dismissed by the Respondent.

Unfair dismissal – not well founded