FULL RECOMMENDATION
PARTIES : GO AHEAD TRANSPORT SERVICES (DUBLIN) LTD DIVISION :
SUBJECT: BACKGROUND: This is an appeal by Mr. Gifford, ‘the Complainant’, under the Unfair Dismissals Act 1977-2015, ‘the Act’, of a Decision by an Adjudication Officer, ‘AO’, that his dismissal by Go-Ahead Ireland, ‘the Respondent’, was not unfair. The Complainant worked as a bus driver for the Respondent. On 9 January 2020, a member of the public complained to the Respondent that a bus driven by the Complainant had blocked a pedestrian crossing. While investigating that complaint, CCTV footage was viewed that showed the Complainant using his mobile telephone. The Complainant was suspended and a disciplinary investigation meeting was held, at which the Complainant acknowledged that he had been on his telephone at the time in question. Following a subsequent disciplinary hearing, the decision was taken to dismiss the Complainant. This decision was appealed. The appeal upheld the decision. The Complainant lodged a complaint under the Act with the Workplace Relations Commission, ‘WRC’, and this is an appeal of the outcome of the WRC process. Summary of Respondent arguments. The use of a mobile telephone while in control of a bus is strictly forbidden and is classified as gross misconduct. At a disciplinary investigation meeting, conducted by Mr. William Cullen, Asst. Operations Manager, on 10 February 2020, the Complainant acknowledged that he had used his telephone on the day in question, while in the cab of the bus. A disciplinary hearing was then held on 20 February 2020, conducted by Mr. Aled Williams, Operation Manager. The outcome was a decision that the Complainant should be dismissed and this was confirmed by letter dated 3 March 2020. An appeal, conducted by Mr. Bradley Faithfull, on 12 March 2020, upheld the decision to dismiss and this was confirmed in writing on 20 March 2020. The nature of the appeal focused entirely on the use of CCTV and around issues of data protection. The use of the telephone was not disputed. The law prohibits the use of mobile phones while in control of a vehicle. The Respondent takes seriously its health and safety obligations. The contract of employment and the policy on use of mobile phones could not be more clear. The use of mobile telephones while in charge of a vehicle is gross misconduct. The Complainant was aware of this and knew the consequences of not adhering to the rule. The Respondent followed proper procedures. Advance notice was given of all meetings, full representation was afforded and an opportunity to put forward mitigating circumstances or other defences was afforded. The original investigation was fact finding and the disciplinary hearing was conducted by an independent manager. An appeal was afforded and was heard by another independent manager., The only argument put forward on behalf of the Complainant was to argue technicalities around the use of CCTV footage. The Respondent had a legitimate interest to justify the processing of the footage in question. All processing was within the framework of the Respondent’s Data Protection and CCTV policies. All buses carry mandatory signage that CCTV monitoring is in operation, the use of which is specified in the Colleague Handbook. The CCTV policy outlines that CCTV can be used for incident investigation and colleague conduct and an appendix outlines that it will be used, if necessary, in accordance with the Respondent’s Performance and Conduct Guidelines. It is argued by the Complainant that there was a breach of procedure and contamination of the disciplinary process in that the manager who suspended him was in charge, subsequently, of the disciplinary hearing. The Complainant was suspended by Mr. William Cullen. The disciplinary hearing was conducted by Mr. Aled Williams. The Complainant argues that there was a breach of natural justice and fair procedure in that the manager who imposed the sanction is said to have made a prejudicial comment about the case in an email. However, in the appeal, it was determined that Mr. Williams had simply advised his Asst. Manager to suspend and investigate, which, due to the seriousness of the matter, was found to be appropriate. It was argued for the Complainant that consideration was not given to a lesser sanction. However, the action that was admitted is gross misconduct and is an illegal activity and the sanction is reflective of this. The act and conduct outweighed the requirement to take work record into account. It is not valid to argue that sufficient time was not given to consider the facts. An adjournment took place for such consideration. The procedures used are in compliance with S.I. 146 and with natural justice. Under s.6(4)(b) of the Act, the Respondent was justified in dismissing the Complainant for ‘the conduct of the employee’ and this was consistent with the action of a reasonable employer. Dismissal was within a band of reasonable responses available. The charges were explained and supporting evidence was given and the Complainant was given every opportunity to respond. The Complainant contributed 100% to his dismissal by acting in direct breach of his contract of employment and the law of the land. The Complainant was represented at all meetings. There was a clear separation between the investigation and hearing process. A right to an independent appeal was afforded. As perLooney v. Looney UD 843/94,it is not the function of the Court to establish guilt or innocence but, rather, to determine whether a reasonable employer in the Respondent’s position would have dismissed or to determine if the dismissal was within the bounds of what a reasonable employer would do. It was reasonable for the Respondent to form the belief that the Complainant was guilty of the charges and the decision to dismiss was within the bounds of what a reasonable employer would do. The law demands fair procedures not perfect procedures, seeBoyle v. An Post 2015. Summary of Complainant arguments The basic components of what is now understood to be the constitutional right to fair procedures are the ‘In Re Haughey Rights’, set out in ‘InRe Haughey (1971) I.R. 217. The person who is the subject of an allegation must be furnished with a copy of evidence against them; must be allowed to cross-examine an accuser; must be allowed to give rebutting evidence and must be permitted to address the body concerned in their own defence. The decision to dismiss the Complainant is fundamentally flawed as he was never given the company CCTV policy and because he did not receive a fair hearing due to the fact that the decision-maker in the disciplinary process had already prejudiced himself in an email, in which he directed his assistant manager to suspend the Complainant based on CCTV footage and stated ‘What is especially concerning is the clip where he is engrossed in his phone for 35+ seconds and misses a green traffic light!!’ Furthermore, the data used by the Respondent was used and obtained contrary to their own CCTV policy, the use and purposes of which were not made known to the Complainant and his personal data was used without his knowledge in a manner that was not legal, fair or transparent. A manager that has suspended an employee with extreme prejudice cannot conduct an objective disciplinary process. In the case ofTowerbrook v Eugene Young (20180 IEHC 425,it was noted that the rules of natural and constitutional justice are incorporated into disciplinary procedures. In a similarity with this case, in that case a manager investigated his own complaint, contrary to the rules of natural justice. Nowhere in the company handbook or in bus signage are staff informed that CCTV will be used in disciplinary proceedings. InPatricia Heffernan v. Dunnes Stores, UD 1355/09, the EAT held that a dismissal was unfair because surveillance equipment was used without the employee’s knowledge. In this case, a complaint was made about the accidental blocking of a pedestrian crossing and CCTV footage was scrutinised in respect of a matter unrelated to the customer complaint and without the Complainant’s knowledge. The Complainant’s record was exemplary and inGerry Clarke v Boliden Tara Mines (2016) 27 E.L.R. 343a dismissal was held to be unfair because of the use of CCTV from a private investigator, in circumstances where such use was not justified by previous behaviour. Similarly, inAircoach v Data Protection Commissioner,the ruling went against the company as it was not made known to employees that CCTV would be used for disciplinary purposes. SIPTU, the recognised union in the Respondent company issued correspondence stating that CCTV could not be used in disciplinary proceedings. The Complainant had an excellent record and received recognition for helping to save a young child from choking on board his vehicle and for assisting a supervisor on a voluntary basis when there was a staffing issue in the depot. There is no evidence to demonstrate that this work record and good character were given any consideration. At the time of dismissal, the Complainant was undergoing domestic problems and was homeless. Despite sleeping in his car, he came to work every day. He was desperately seeking emergency accommodation and a momentary lapse in texting to secure accommodation must be balanced against these mitigating factors. The short time taken to reach a decision demonstrates that no serious consideration was given to the Complainant’s personal circumstances. The dismissal decision was disproportionate. There were no other complaints against the Complainant, who stayed working without incident until 7 February 2020. The Complainant did not receive a fair hearing. The Respondent’s own Performance and Conduct guidelines provide for mitigating circumstances to be taken into account in considering the application of a lesser sanction. These circumstances were the Complainant’s homelessness, of which the Respondent was aware, and the matter of the Complainant’s good character and standing in the company. CCTV was used without the Complainant’s knowledge. No due consideration was given to a lesser penalty. Documents were withheld from the Complainant. The failure to provide the CCTV policy resulted in a deficit of knowledge relating to how evidence was gathered and caused the defence to be inhibited. The Complainant secured alternative employment within about two weeks of his dismissal. His pay at €550 per week is below that which he received while with the Respondent company of €591 per week. The applicable law Unfair Dismissals Act 1977-2015 1. “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, Unfair dismissal. 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 (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, Deliberation. The suggestion by the Respondent that Mr. Williams simply asked his assistant to suspend the Complainant pending an investigation is not borne out by the facts. He did more than that. He offered observations/commentary on a matter that, at that point, was still to be investigated. That he subsequently chaired a disciplinary hearing and imposed a sanction of dismissal raises issues for the consideration of the Court. These are issues which go beyond mere procedural imperfections. The Court accepts, as it must, that procedures need not be perfect to be fair. However, the issue for the Court to consider is whether Mr. Williams acted as a ‘judge in his own cause’ which would be contrary to the principle of ‘nemo iudex in sua causa’, one of the principles of natural justice. In considering this matter, the Court has regard to the observation that this is not just a matter of actual bias, instances of which ‘..are relatively rare in practice-but relates to the public perception of the impartiality of the decision-making process..’ (see ‘Recent Developments In Relation To The Nemo Iudex InSua Causa Principle, (1999) 6(1) DULJ 66 by Hilary Delany) and to the definition of ‘bias’ in the case ofOrange Communications v Director of Telecommunications (N02) (2000) 4 IR 159that ‘In law it is any relationship, interest or attitude which actually did influence or might be perceived to have influenced a decision or judgement already given or which might be perceived would influence a decision or judgment yet to be given’. ‘Bias’ having been defined also in an earlier case ofFranklin v. Minister of Town and Country Planning (1948) AC 87as an absence of an open mind when deciding a matter. As Denham J. observed inDublin Wellwoman Centre Ltd. v. Ireland (1995) 1 ILRM 408,it is not just that there should be no actual bias i.e. a subjective test but also ‘that there should be no reasonable apprehension that there is bias, i.e. the objective test’. As Delaney also notes the ‘real likelihood’ test has been largely replaced by the ‘reasonable suspicion’ or ‘reasonable apprehension’ tests. In applying these tests, the Court asked itself if the observations offered by Mr. Williams in his email could be said to suggest that he showed an attitude that could give rise to a reasonable apprehension that might be ‘perceived to influence a decision..yet to be given’? It is difficult in the circumstances to see how such an apprehension could be regarded as other than reasonable. Therefore, the Court has to conclude not just that the process that led to dismissal was flawed but that it was a process which did not afford the Complainant his rights of natural justice. Accordingly, the dismissal is automatically unfair and in breach of the protections afforded by the Act. Arguments about the use of data are outside the competence of this Court. Any alleged breaches of the Complainant’s rights in this regard are a matter for a different forum. The Court asked both parties for their views on an appropriate remedy in the event that the Court was to decide that the dismissal was unfair. Both parties suggested that the only viable remedy was that of compensation. The Court concurs with this view. In assessing compensation, the Court is required under s.7(2)(b) of the Act, see above, to consider the extent of contribution by the Complainant to his dismissal. In this regard, the Court notes that the Complainant accepts that he was on his mobile telephone while in charge of a bus. It is not disputed that the Respondent’s Colleague Handbook makes it absolutely clear that such an action is ‘gross misconduct’. The Respondent advised the Court that it has a zero tolerance attitude to such matters. It advised further that all drivers receive five days’ training, in the course of which the health and safety requirements placed on them are emphasised, including in respect of the company’s zero tolerance attitude to mobile phone usage while in charge of a vehicle. Therefore, the decision to dismiss cannot have come as a surprise to the Complainant. The Respondent’s zero tolerance policy; the fact that all staff are made aware of such a policy; the very obvious danger that any breach of the policy poses for staff, customers and the wider public; the legal and moral jeopardy that any breach creates for the Respondent and the fact that there is no dispute that this policy was breached, when all considered together lead the Court to conclude that the Complainant contributed 100% to his dismissal and that compensation of zero is the appropriate award. In arriving at this view the Court took account of the Complainant’s difficult circumstances at the relevant time but concluded that those circumstances did not alter the considerations set out above. Determination. The Decision of the Adjudication Officer is over turned.
NOTE |
