Complainant

Respondent

Parties

Martin Browne

Egis Road & Tunnel Operation Ireland Limited

Representatives

Gerard Kennedy BL instructed by Hibernian Law

Conor O'Gorman, Ibec

Act

Complaint Reference No.

Date of Receipt

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

CA-00026082-001

06/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00026082-003

06/02/2019

The Complainant worked as a Duty Manager in the Tunnel Control Room at the Dublin Port Tunnel.  During his shift on 10 January 2018 an incident occurred which led to his dismissal.  The Complainant has submitted a complaint of unfair dismissal and a complaint under the Payment of Wages Act in relation to the non-payment of notice. 

The Respondent submits as follows:

The Respondent is contracted to operate the Dublin Port Tunnel, the Jack Lynch Tunnel and the Motorway Traffic Control Centre (MTCC) which manages the national motorway network.  The national control centre, which is adjacent to the Port Tunnel, contains two control rooms.  The first control room is the Toll/MTCC Control Room.  The Tolling Supervisor overseas the Tolling Section and MTCC Operators monitor the motorway section of the control room.  The control room is a restricted area and security access is required to enter the room.

The second control room, the Tunnel Control Room, monitors the maintenance, safety and security of the Dublin Tunnel and the Jack Lynch Tunnel.  This room is also a restricted area and security access is required to enter the room.  The Duty Manager oversees the Tunnel Control Room as well as the Toll Plaza/MTCC Control Room during both the day and night shift.  At the time of the incident which led to his dismissal, the Complaint was the Duty Manager of the Tunnel Control Room.

In addition to overseeing the control rooms, the Duty Manager also has responsibility for the Tunnel Patrollers, typically 3 patrollers per shift.  The patrollers’ duties involve responding to any incidents or accidents in the tunnel.  When an incident occurs, the Tunnel Control Room will be the first to know.  The control room will then radio the patroller who immediately proceeds to the scene of the accident.  The patroller is generally the first person on the scene.  The patrollers cordon off the area of the accident and provide assistance to any injured parties, pending the arrival of the emergency services.

The patrollers drive specialist vehicles, which, like emergency service vehicles, are equipped with flashing lights, traffic management equipment and illuminated vehicle mounted signs, similar to the emergency services, patrollers can deploy emergency traffic management equipment and, in some cases, use their vehicles to block the road from oncoming traffic.

Background to the incident

On 9 January 2018 a serious accident occurred in the tunnel involving a collision between a lorry and a tanker. One of the patrollers on the scene was AB. The driver of the lorry was seriously injured with arm, chest and leg injuries. AB assisted in the area and attended to the injured party until the emergency services arrived.

The following day AB was on patrol and the Complainant was the Duty Manager with responsibility for the Port Tunnel.  The shift commenced at approximately 18:00.  At approximately 18:20 the Toll Supervisor on duty left the Toll/MTCC Control Room and went to the Tunnel Control Room. Upon entering the Tunnel Control Room, the Toll Supervisor took up a radio and told those present that he was going to play a prank on AB.

He then called AB on the radio and told him that there was a serious accident in the tunnel involving a coach and a car. AB, as per his duties and responsibilities, drove at the highest possible speed, deploying all his vehicle warning lights, to the area where the crash was supposed to have occurred. It should be noted that this incident happened during rush hour traffic when the tunnel was at high capacity. AB, while driving to the 'accident', would have had to move at high speed in and out of traffic lanes. The potential for a real accident was thus greatly increased.

When AB asked for the exact location of the 'accident' he was told by the Toll Supervisor; "you can’t miss it, there is debris all over the tunnel". AB, believing that a major incident had occurred, asked if the tunnel was being closed to traffic.  He was told that they were scanning the tunnel then making a decision on closure. Again, AB asked for the exact location of the accident; the response was laughter and the Toll Supervisor told AB that it was a wind-up.  Naturally, AB was very upset at this childish prank and responded over the radio by saying, "don't pull that shit with me!" It was at this point that the Complainant intervened to chastise AB for his "radio etiquette". AB responded by asking the Complainant "what about work etiquette".

Upon returning to base AB confronted the Toll Supervisor over his behaviour. In the following days the Toll Supervisor apologised to AB for his behaviour. Notwithstanding this apology, AB made a formal complaint about the incident.

Investigation

On 18 January 2018 the Respondent formally commenced an investigation into the incident. The following parties were the subjects of the investigation:

·       The Toll Supervisor as the instigator of the prank

·       BC (who was also named by AB as being involved)

·       CD who was on duty at the time

·       The Complainant who was the senior manager present at the incident with responsibility for the tunnel and AB.

The Complainant received a written invitation to an investigation meeting dated 18 January 2018. The invitation stated the Complainant's right to representation, informed the Complainant of the possible outcome, and included a copy of the allegation and the disciplinary policy.

The meeting was rescheduled at the request of the Complainant to facilitate the presence of his Trade Union representative.  The first interview with the Complainant took place on 12 February 2018. The Complainant confirmed that he had received details of the allegation and the disciplinary policy. The Complainant confirmed that he was present in the Tunnel Control Room during the incident but denied that he was aware of the incident because he was not feeling well having just returned from a period of sick leave. He claimed he "was busy",“not tuned into what was going on". He heard AB use the word "shit” at which point he got involved to reprimand AB for his lack of "radio etiquette". He reiterated that he was unwell that evening and had gone home several hours after the incident.

A follow up meeting was held on 13 March, 2018. At this meeting the parties viewed CCTV of the Tunnel Control Room during the incident. Following the viewing of the CCTV, the Investigator asked the Complainant if he wished to amend his previous statements. In response, the Complainant described the use of CCTV as outrageous and stated that he would be contacting the Data Protection Commissioner. The Respondent contends that the Complainant's representative did not object to the use of the CCTV footage and that his objections were confined to not being made aware that this was the purpose of the meeting. The Complainant's representative stated that the CCTV footage and the Respondent's Data Protection Procedure should have been forwarded for review before the meeting. The representative also asked that a copy of the CCTV policy be provided. The Respondent contends that, after viewing the CCTV footage, the Complainant did not wish to amend his statement.

The Respondent submits that the CCTV footage showed that the Complainant was present during the incident. On the CCTV footage, the Toll Supervisor can be seen entering the room, taking up a radio and calling AB. The Complainant was sitting at his desk approximately eight feet from the Toll Supervisor. As the Toll Supervisor was speaking to AB on the radio, the Toll Supervisor walked back and forth and, at one point, came within a few feet of the Complainant. The Respondent contends that during the exchange, the Complainant adjusted the volume on his radio contrary to his evidence that he was not doing any work at the time of the incident.

The Investigator issued his report on 4 April 2018.  The following were the findings of fact:

·       The Toll Supervisor admitted to the call describing it as "an ill thought out prank".

·       It could not be determined if BC was involved although he was present in the room.

·       The Complainant appeared to be engaged in the incident and did not intervene.

The matter was put forward for a disciplinary hearing.

Grievance

On 14 March 2018 the Complainant raised a formal grievance regarding the use of CCTV in the investigation.  Notwithstanding this grievance, the Complainant requested and was given a copy of the CCTV footage.  A grievance meeting was held on 23 April 2018.  The Complainant was again accompanied by his Trade Union representative. The Complainant alleged that the use of CCTV footage was "employee surveillance" and thus prohibited under the Company/Union agreed policy.

The grievance was not upheld as the CCTV was being used in connection with matters of health and safety, which is allowed for in the Company/Union agreed policy. The outcome was sent to the Complainant on 10 May 2018. The Complainant appealed the outcome on 4 June 2018. The appeal upheld the original decision.

Disciplinary Hearing

The Complainant attended a disciplinary hearing on 21 June 2018. His Trade Union representative again joined him. The Complainant reiterated his position, specifically that he was unwell at the time and was not aware of the prank.

The outcome of the disciplinary hearing was issued on 6 July 2018 and addressed the very serious nature of the incident. The Disciplinary Manager found that the Complainant was aware that the prank was taking place and allowed it to proceed and in doing so lost control of the situation and the Tunnel Control Room. The allegation was thus upheld. In deciding upon the appropriate sanction, the Disciplinary Manager had regard to the Complainant's assertion that he was feeling unwell at the time. For this reason, the sanction chosen by the Disciplinary Manager was a final written warning and a two-week unpaid suspension from work.  The Complainant was notified of his right of appeal and was informed that following an appeal, a disciplinary sanction may be upheld, removed, reduced or increased. 

Appeal

The Complainant appealed the outcome of the disciplinary hearing by email dated 12 July 2018.

His grounds of appeal were:

·       Incorrect procedures were followed in the investigation

·       Failure to take into account mitigating circumstances

·       The sanction applied was disproportionate in the circumstances

The appeal meeting was held on 27 July 2018. The Respondent submits that the Complainant’s Trade Union representative, who again disputed the use of the CCTV footage but accepted the outcome of the grievance process, disputed that the CCTV footage was of the incident in question. Regarding mitigating circumstances, the Complainant's Trade Union representative reiterated that the Complainant was ill at the time of the incident. There was considerable discussion regarding the Complainant’s illness.  The Respondent contends that, on the issue of proportionality, the Complainant and his Trade Union representative submitted that the Complainant had done nothing wrong and should receive no sanction.

The outcome of the appeal was issued on 13 August 2018. In a lengthy decision it was held that the CCTV footage was of the incident in question. Due to the nature of the incident, particularly the health and safety issues, it was deemed to have been appropriate to use the CCTV footage in the investigation.

On the issue of the Complainant's alleged illness, the Appeals Manager noted that no medical evidence had been submitted to support this claim. Shortly before the incident, the Complainant had returned to work from a period of illness. On his return to work form the Complainant stated that he was not suffering from any symptom/aliment that the Respondent should be aware of.  The Respondent submits that there was no independent evidence that the Complainant was unwell at the time.

In considering the proportionality of the sanction, the Appeals Manager considered the circumstances in their totality. The incident happened shortly after the tunnel was handed over to the Complainant (less than half an hour); at no time did the Complainant indicate that he was unwell; the Complainant was sitting within a few feet of the Toll Supervisor during the incident and had his radio to hand but did not respond to key words such as "accident", "car and coach crashed","debris all over the tunnel", "considering closing the tunnel" but responded when AB used the word "shit”.

The Appeals Manager found that the sanction of a final written warning was not the appropriate sanction given the facts and circumstances and the sanction was increased to summary dismissal.

Respondent’s arguments

The Respondent submits that the fact of dismissal is not in dispute and that the Complainant was dismissed by reason of his conduct. Accordingly, the Respondent contends that his dismissal was not unfair as it resulted wholly from "the conduct of the employee", in accordance with section 6(4) (b) of the Unfair Dismissals Act 1977. The Respondent submits that the conduct of the Complainant amounted to gross misconduct as defined in the Respondent's disciplinary procedure.

The Respondent submits that the disciplinary procedure forms part of the Company/Union agreements and was agreed with the Complainant's Trade Union. The Respondent submits that the disciplinary procedure clearly states in relation to appeals that:

“at every step of the disciplinary procedure, the employee has the right to appeal a sanction made against them. An appeal must be made in writing within five working days of the decision and provide details of why the penalty imposed is considered to be too severe, inappropriate or unfair in the circumstances. Following an appeal, a disciplinary sanction may be upheld, removed, reduced or increased”.

Sworn evidence of Jonathan Daly, MTCC Manager, who conducted the investigation

Mr Daly became aware of the incident on 10 January 2018, where a Tunnel Patroller, AB complained that a prank had been played on him when he was wrongly informed that a collision had occurred between a bus and another vehicle.  Mr Daly was asked to investigate the incident.

In the course of his investigation, Mr Daly met the three Duty Officers who were on duty the night in question. Duty Officers work in the Tunnel Control Room under the supervision of the Complainant.  The job of the Duty Officer is to monitor CCTV and computer equipment.  If a Duty Officer becomes aware of an incident in the tunnel, they alert the Tunnel Patroller who then attempts to prevent a secondary incident and is the first responder on the scene prior to the arrival of the emergency services.  Mr Daly also met with the alleged prankster and the Complainant.

Mr Daly determined that there was a case for reviewing the CCTV footage on the Tunnel Control Room.  From viewing the CCTV footage, Mr Daly concluded that the Toll Supervisor had carried out a prank and that the Complainant was aware of what was happening.

At the initial meeting with the Complainant, the Complainant said that he was unaware of the prank. Mr Daly disputed this as the CCTV footage showed that the Toll Supervisor had been no more than 2.5 metres from the Complainant at all times.

Mr Daly said that the Complainant said that he was ill with asthma while on duty on the night in question and that he wasn’t himself.  He wasn’t aware of what had occurred until an obscenity was uttered across the 2-way radio.

Mr Daly said that the Toll Supervisor had used serious critical language while on the radio call to the Tunnel Patroller, AB, including, “multi-vehicle collision involving a bus”.

When AB asked where the collision was, he was told he would know when he saw it.  AB then asked if the tunnel was being closed. When he was told that it wasn’t, he asked why. 

Mr Daly said that the Duty Manager should have taken ownership of the situation.  Mr Daly confirmed that the Toll Supervisor did not deny that he had carried out a prank on the Tunnel Patroller, AB.  Mr Daly said that the Toll Supervisor said that he had been involved in a series of pranks with AB and that AB had pranked him previously. 

Mr Daly said that the Toll Supervisor said that he had entered the Tunnel Control Room and told the people there that he was going to carry out a prank on AB.

Mr Daly said that the Toll Supervisor normally worked in the Toll Control Room not the Tunnel Control Room.  Mr Daly said that the CCTV footage showed that when the Toll Supervisor entered the Tunnel Control Room, he stood between the Duty Officer, BC, and the Complainant and that it was from that position that he spoke across the radio and carried out the prank.  Mr Daly said that originally AB thought that BC had carried out the prank but that the Toll Supervisor admitted that it had been him who had done it.

From his investigation, Mr Daly concluded that the Toll Supervisor had a case to answer.  He also concluded that the Complainant had a case to answer because as Duty Manager he was ultimately responsible but did not have control.

Cross examination of Mr Daly by Mr Kennedy BL

Mr Kennedy asked Mr Daly if he had checked the Duty Officer’s Log for 10 January 2018.  Mr Daly replied that he had not.  Mr Kennedy then asked Mr Daly to explain the duty log.  Mr Daly replied that the Duty Officer’s Log contains a written record of everything that occurs in the tunnel on a daily basis and that all incidents would be entered into the duty log.

In response to a question from Mr Kennedy, Mr Daly agreed that the Duty Officer’s Log would show the time of all events.  Mr Kennedy then mentioned that, during the investigation, the Complainant’s representative had raised an issue about the discrepancy between the Duty Officer’s Log and the CCTV and asked Mr Daly if he had reviewed the duty log.  Mr Daly responded that there was no need to check the Duty Officer’s Log as it was not a genuine incident.

Mr Kennedy asked Mr Daly if he was aware that the Complainant had made a complaint in relation to CCTV.  Mr Daly replied that he was.  Mr Kennedy then asked Mr Daly if he was aware of the Respondent’s data protection policy. Mr Daly replied that he was.  Mr Kennedy asked Mr Daly if he was aware that the Respondent’s data protection policy states that CCTV would not be used for disciplinary purposes.  Mr Daly replied that it was his job to establish fact.

Mr Kennedy referred to Mr Daly’s interview with the Complainant and asked if the Complainant admitted knowledge of the prank.  Mr Daly confirmed that the Complainant stated that he only became aware when the expletive was uttered.

Re-examination of Mr Daly by Mr O’Gorman

Mr Daly confirmed that the Duty Officer’s Log was generated by hand and that it was not digitally recorded.  Mr Daly confirmed that he would prefer the CCTV footage and that he was satisfied that it was a recording of the incident.

Sworn evidence of Darren McGrath, Operations Manager, who conducted the disciplinary hearing

Mr McGrath confirmed that he was not involved in the investigation but was aware of the outcome.  Mr McGrath confirmed that he was not given any instructions regarding the conduct or outcome of the disciplinary hearing. 

In response to a question from the Mr O’Gorman, the Respondent’s representative, who was putting him into evidence, Mr McGrath confirmed that he was satisfied that the Complainant knew the allegations against him, the seriousness of these allegations and the possible outcome of the disciplinary process.  Mr McGrath said that, at the outset of the disciplinary hearing, he went through the findings of the investigation. 

Mr McGrath said that he had difficulty understanding how the prank occurred without the Complainant being aware of it as everyone had a radio.  Mr McGrath said that if it had been a real incident, it would have been at the extreme end.  Mr McGrath said that he was concerned that the Toll Supervisor thought that it was ok to enter the control room and carry out the prank when the Complainant was the Duty Manager. 

Mr McGrath said that he came to a decision where he felt that there were potentially grounds for dismissal. He then reviewed the mitigating circumstances of the Complainant being unwell and the submission of a medical cert.  That was why he opted for a final written warning and not dismissal. 

Mr McGrath said that the Toll Supervisor got a final written warning because he held his hands up immediately and was hugely regretful.  Mr McGrath felt that the ultimate responsibility was with the Duty Manager (the Complainant). Mr McGrath said that he was of the view that the Complainant could not be unaware of the prank and he made this clear to the Complainant.  Mr McGrath was extremely concerned that the Complainant did not hear the trigger words but heard the expletive. 

Cross examination of Mr Daly by Mr Kennedy BL

In response to a question from Mr Kennedy, Mr McGrath confirmed that Mr Daly was not present at the disciplinary hearing.  Mr McGrath confirmed that he had been given the investigation outcome report.  Mr McGrath confirmed that he did not base his decision solely on the investigation report.  He also relied on his own understanding of the prank which had been carried out in the Control Room and which he believed could have been quite serious.  Mr McGrath said that he only formed a view of the outcome when he had finished the disciplinary hearing.

Mr McGrath confirmed that he did know about the CCTV but that he had never looked at it and that he didn’t see any point in playing it.  Mr McGrath said that he was not aware of a dispute in relation to the CCTV. 

Mr Kennedy asked Mr McGrath if, at any stage, the Complainant had admitted that he knew that the prank was going on.  Mr McGrath replied that he had not.  Mr McGrath said that he felt that the Complainant would have been aware of the prank.

Mr McGrath said that he couldn’t say for certain if his attention had been drawn to the Duty Officer’s Log at the disciplinary meeting.

Mr McGrath confirmed that the Complainant contacted him on the night of the incident to say that he was sick and that he had gone to hospital.

Re-examination of Mr McGrath by Mr O’Gorman

Mr McGrath confirmed that neither Mr Brown nor his representative asked to call witnesses at the disciplinary hearing.  Mr McGrath confirmed that entries are made in the Duty Officer’s Log by hand and that he would not rely on it.

Sworn evidence of John Cleary, Tunnel Director, who conducted the appeal

Mr Cleary said that after the incident on 10 January 2018, he received a phone call from AB who was the victim of the prank.  Mr Cleary told AB to talk to his Line Manager.

Mr Cleary confirmed that he was aware of the nomination of different individuals to conduct the investigation and disciplinary hearing.  He said the HR Department looks to see who is available and appropriate.  Mr Cleary confirmed that it is standard policy the no direction on the conduct of any part of the disciplinary hearing can be given. Mr Cleary confirmed that he did not have any contact with Mr Daly or Mr McGrath in relation to the disciplinary process.

Mr Clearly confirmed that he was aware of the Respondent’s Data Protection Policy and that CCTV could be used in relation to health and safety but cannot be used purely in a disciplinary context. 

Mr Cleary confirmed that the Complainant’s appeal was assigned to him but that he would not normally have conducted all appeals. 

Mr Cleary confirmed that the Respondent has an ongoing Company/Union agreement in place with SIPTU and that all documents, such as the employee handbook, are agreed with them.  Mr Cleary confirmed that the disciplinary process as outlined in the employee handbook had never been challenged. 

Mr Cleary said that there were three elements to the appeal:

·       Incorrect procedures were followed in the investigation

·       Failure to take mitigating circumstances into account

·       The sanction applied was disproportionate in the circumstances

Mr Cleary confirmed that the Toll Supervisor did not appeal the disciplinary sanction that was applied to him.

Mr Cleary said that the Complainant’s representative raised the issue of the time stamp on the CCTV not being in line with the incident.  Mr Cleary confirmed that the GPS clock was used as a single time source.  Mr Cleary said that subsequent to the appeal hearing, he investigated the CCTV, the Duty Officer’s Log and the SCADA system (the control system). Mr Cleary confirmed that every day IT check to ensure consistency between the CCTV and SCADA.  Mr Cleary confirmed that he is satisfied that the CCTV recording was of the incident on 10 January 2018. 

Mr Cleary said that, despite the Complainant’s Representative’s assertion that the incident lasted for 5 seconds, the CCTV footage shows at least 93 seconds of engagement between the Toll Supervisor and AB.  Mr Cleary said that the Complainant appeared to be attentive during that time and that he could be seen adjusting the volume on his radio which was on the desk in front of him.  Mr Cleary said that it would be normal to tune out of routine voice communication but that there are certain key words which would get your attention such as “debris” and “take evasive action”.  Mr Cleary said that he was trying to understand the duration of the prank and the key words that were used.

In relation to the Complainant’s illness, Mr Cleary said that he reviewed the Complainant’s medical certs and return to work forms for the period in question.  He was looking for something to support the Complainant’s assertion re his medical condition but that he could not find anything.  Mr Cleary said that a Duty Officer would not hand over to someone with limited capacity.  Mr Cleary asked if the Complainant felt so unwell prior to the prank, why didn’t he approach him about it.

Mr Cleary said that the Complainant always maintained that he was not aware of the prank. He did not offer an apology and there was no acknowledgement that what happened should not have happened.  Mr Cleary said that he was legally culpable for anything which occurred in the tunnel.  Mr Cleary said that he felt that the Complainant, through his actions, had allowed the tunnel to be taken over which had endangered the lives of staff and of the public.  Mr Cleary felt that he had no option but to dismiss the Complainant.  He could not have someone he could not trust as a Duty Manager. 

Cross examination of Mr Cleary by Mr Kennedy BL

Mr Cleary confirmed that had read the Respondent’s Data Protection Policy and that he was aware that CCTV footage was not to be used for disciplinary purposes.  Mr Cleary said that he had viewed the CCTV footage at the request of the Complainant’s representative. He confirmed that he did not view it in the presence of the Complainant or his representative.  In response to a suggestion from Mr Kennedy that viewing the CCTV footage was a breach of procedures, Mr Cleary responded that he felt that there was an issue in contention and that he should look at it.  Mr Cleary confirmed that he also examined other sources to ensure that he had a full understanding of the timeline of the incident.

In response to a suggestion that from Mr Kennedy that it was unfair to have viewed CCTV for disciplinary purposes, Mr Cleary responded that it was a health and safety matter and people’s lives had been endangered.

Mr Cleary confirmed that the possible outcomes of an appeal had been clearly stated prior to the appeal meeting and had been reiterated at the appeal meeting.  Mr Cleary confirmed that the Respondent’s employees are not afforded an opportunity to appeal the outcome of an appeal.

Respondent’s Closing Statement

The Respondent submits that an employee who is the subject of a disciplinary procedure must make a request to cross-examine  witnesses – there is no positive obligation on the employer to facilitate cross-examination.

The Respondent submits that the Complainant is needlessly blaming BC for the Complainant’s failure to stop the prank from progressing.

The Respondent refutes any suggestion that delays in the process were solely attributable to it and contends that the raising of a grievance by the Complainant caused the disciplinary process to be put on hold while the grievance was investigated.  Regardless, the Respondent contends that any delays in the process did not have the effect of denying the Complainant natural justice. 

The Respondent concluded that, overall, the dismissal of the Complainant was a reasonable decision which was substantially and procedurally fair. 

The Respondent cited the following precedents in support of its position: McMillan v Airedale NHS Foundation Trust; Keelings Logistics Solutions and Sunny Alex Okeke UDD1872; Besebvei v Rosderra Irish Meats Group Limited UD37/2014; Audrey Burtchaell v Premier Recruitment International Ltd T/A Premier Group, UD1290/2002; and, Moore v Knox Hotel and Resort Ltd, UD 27/2004.

The Complainant submits as follows:

On 10 January 2018, the Complainant commenced his shift at 18:00 as per the normal staff roster. During his shift he started to feel unwell. Between 18:00 and 19:00 an incident occurred. This incident was described by the parties to the incident itself, and by the Respondent's investigators, variously as a joke/wind-up/prank.  The Complainant submits that none of the Respondent’s employees who were involved in this incident brought the proposed action to be taken by the Toll Supervisor to the Complainant’s attention.  The Complainant denies any actual knowledge, constructive knowledge or imputed knowledge of the action that was taken by the Toll Supervisor that evening.  The Complainant has at all times denied knowledge of the incident and took no part in the radio exchanges other than when he became aware of a breach of radio etiquette.  This became the source of a complaint arising from which he was the only person disciplined and the only person dismissed, despite having not hand, act or part in an incident which lasted approximately 30 seconds.

The incident first came to the attention of the Complainant when AB approached him after the incident had concluded. He said to the Complainant that the "stunt your man pulled was out of order" and AB went on to say "it's all sorted" and then left before the Complainant could ask any questions. The Complainant went into the Control Office and asked what had happened. He was advised that AB and the Toll Supervisor had played pranks on each other and it had been going on for a couple of weeks. The Complainant being unwell as he was suffering from asthma, left the workplace on sick leave, went home and thought no more of the incident.

Investigation

The Complainant was notified by letter dated 18 January 2018 that he would be subjected to an investigation and that an investigation was scheduled for 12 February 2018.  Prior to receiving the letter, the Complainant was unaware that he would be subjected to an investigation.  Before the meeting, the Complainant’s Union representative requested copies of all documents and statements concerning any allegation against the Complainant. The application was refused.

On 20 February 2018, a further letter was received from the Investigator seeking a follow up meeting with the Complainant to be held on 27 February 2018. This meeting was cancelled and rescheduled for 13 March 2018.  The Complaint submits that no allegations of misconduct on his part were made in any correspondence relating to the meeting.

The Complainant submits that, at the meeting, the Investigator proceeded to play video footage of the control room and asked the Complainant "do you want to change your story now". The Complainant and his Trade Union representative requested all supporting documentation and the CCTV footage and requested the investigation cease until a proper opportunity was given to review the documentation and respond. The meeting ended.

The Complainant submits that he was not afforded due process during the investigation because the Investigator’s report made conclusive findings on the basis of (i) the statements of colleagues staff in respect of which the Complainant was not afforded a right of challenge and (ii) CCTV obtained in breach of section 2A of the Data Protection Act, 1988-2018.

Grievance

A formal grievance was lodged by the Complainant into the actions of the Investigator. This grievance related to the conduct of the investigation, the breach of Data Protection legislation, the Respondent's own policy on data protection and the use of CCTV for staff monitoring. A meeting was scheduled to take place on 6 April 2018, notice of which was received on 5 April 2018, without adequate time for representation. A new date for a meeting was proposed for 23 April 2018.

A request was made for documents related to the investigation.  The Respondent, by letter dated 18 April 2018, denied access to these documents and stated that "'all other documents related to the investigation will be provided to you upon the commencement of the disciplinary process”. At the meeting of 23 April 2018, the grievance was restated by the Complainant and the request for supporting documentation remade.

A report of the grievance process, including the alleged breaches of the Data Protection Act and use of surveillance camera for staff monitoring was issued by the Respondent on 10 May 2018. The report completely exonerated the use of the CCTV and the actions of the Investigator.

The Complainant appealed the outcome of the grievance process. His appeal was denied as the Respondent had determined that "all relevant factors broached in the initial meeting and your initial grievance letter have been addressed".  The Complainant contends that it is unusual that an appeal can be denied without hearing the grounds for the appeal.

Disciplinary Hearing

By registered post on 14 June 2018, the Complainant received the following invitation to the disciplinary hearing:

"You are invited to attend at a disciplinary action to address the findings of an investigation into an incident which occurred in the Tunnel control room on 10th January 2018, whereby it is alleged that you as the Duty Manager did not take appropriate action to prevent a prank being carried out which had the potential to result in serious injury to both staff and the general public".

There is no suggestion in this letter that dismissal was contemplated.

The Complainant submits that the material which formed the basis of the disciplinary process was supplied to his Trade Union Representative on 18 June 2018 which was two days before the disciplinary hearing, yet the investigation report had been finalised on 4 April 2018, nearly two months earlier.

The report of the incident, dated 4 April 2018, concluded as follows:

"In the first meeting, Mr Browne claimed he was unwell and not aware of what was occurring. Upon further review, it would appear that he in fact enabled its action. Mr Browne was the Duty Manager during the incident and in that role would have had responsibility to deal with the situation of being informed by [the Toll Supervisor] that he was going to carry out the prank. The conclusion of the investigation is that Mr Browne did not take any action following being informed that this was to happen."

The Complainant contends that none of the statements gathered by the Respondent from other parties relate to any alleged complaint against the Complainant. In particular the statements of AB, the Toll Supervisor and BC and CD do not mention that the Complainant was aware on any level that the Toll Supervisor was going to engage in the prank. In particular, BC, who actually admitted to hearing the first exchange, took no action as Duty Officer.  The Complainant contends that BC's first duty was to stop the prank as it unfolded in front of him and report the incident to his Duty Manager, the Complainant. BC in his statement dated 26th January 2018 clearly admitted to engaging in radio contact when the Toll Supervisor opened the prank with "Tolling to Control". At this stage the Toll Supervisor was standing beside him and the incident unfolded. BC took no action and was an active observing participant and should have given an instruction to 'stand down'. The Complainant contends that BC failed then to make a full report of the incident to him. The Complainant contends that this is a crucial point and yet BC was exonerated fully. The report of the investigation in its findings states that there was no evidence that BC was involved. No disciplinary action was taken against BC.

The Complainant submits that he was not afforded due process during the investigation as the Investigator made conclusive findings only on the basis of the flawed reports by staff who the Complainant was not permitted to challenge and on the basis of CCTV footage obtained in breach of the Data Protection Act, 1988 – 2018.

The Complainant submits that none of the report’s findings, other than a subjective review of CCTV footage and one intervention when the Complainant heard the word 'shit' relayed over the radio, support the contention that the Complainant had any knowledge of the actions of the Toll Supervisor.

The Complainant submits that at the disciplinary hearing which took place on 20 June 2018, the Disciplinary Manager, Darren McGrath, refused to "go over the past or review footage time lines as that's all done with". The Complainant submits that he was not afforded the right to challenge his accusers or to adduce any evidence of his own in support of his position. The Complainant submits that no witnesses were produced and the hearing took place as a paper exercise. 

The disciplinary hearing outcome was notified to the Complainant in a letter dated 6 July 2018 nearly six months after the incident on 10 January 2018.  The Complainant contends that a review of the outcome letter suggests that at no point did the Respondent consider dismissal as a possible sanction.  The Complainant contends that the minutes of the disciplinary meeting are unsigned and remain disputed. 

Appeal

An appeal was lodged on 10 July 2018 and an appeal meeting took place on 27 July 2018.  The letter of invitation to the appeal hearing clearly stated that:

"The decision following this appeal hearing will be final and there will be no further right of appeal against it".

At the appeal hearing of 27 July 2018, John Cleary, the Appeals Manager, questioned the medical certificates submitted by the Complainant. In the letter of dismissal he went on to deal with every instance of sick absence in the period of time surrounding the events and the return to work certification. At no time did the Respondent seek to have its medical examiner meet with the Complainant or contact the Complainant’s own GP to confirm or deny the Complainant’s health conditions.

On 13 August 2018, the Complainant was issued with a letter stating that the Respondent had found as follows:

"I find your behaviour is an instance of gross misconduct to the point, that through your actions and deliberate inactions, you willingly allowed the endangerment of staff and members of the public using the tunnel.

I therefore dismiss you forthwith from employment with immediate effect. Due to the severity of your conduct, the necessary trust and confidence as required by your employer, has been irreparably damaged. As this has been determined to as a case of gross misconduct, you are not legally entitled to a notice period.  However as a gesture of goodwill and in recognition of your tenure with ERTO, you will be provided with one month's salary subject to the return of company property”.

No avenue of appeal was made available by the Respondent against the sanction as the Respondent had determined that the Complainant had “exhausted all aspects of the ERTO Disciplinary Procedure and this determination cannot be appealed as part of our internal process”. The Complainant contends that this was in breach of the Respondent's own policy which states:

"At every step of the disciplinary procedure, the employee has the right to appeal a sanction made against them".

The Complaint contends that the decision to dismiss him without notice was fundamentally flawed and that he was dismissed without the Respondent putting him on notice that his job was in peril. The Complainant submits that no other employee was dismissed arising from the prank perpetrated by the Toll Supervisor and enabled by BC on 10 January 2018. There was no evidence to justify the ultimate sanction of dismissal, particularly in circumstances where he worked normally through the entire period and was not suspended from work at any stage. He was Duty Manager up to the date of dismissal on 13th August 2018.

The Complainant submits that the actions of the Respondent were unreasonable and disproportionate in dismissing him and were based on flawed procedures.  In particular, the Complainant was engaged in an appeal against the severity of the disciplinary action imposed by the Respondent:

·       without knowing that dismissal was contemplated nor being notified of this in advance

·       not having the opportunity to confront his accusers

·       CCTV evidence had been relied on without the Complainant’s consent, and in the absence of a policy governing the use of such CCTV evidence, and in breach of the Data Protection Acts, 1988-2003

Arising from the incident on 10 January 2018, John Cleary, Tunnel Director for the Respondent organisation, dismissed the Complainant from his employment without notice on 13 August 2018 at the conclusion of an appeal process. The Complainant submits that he was unfairly dismissed in circumstances where the Respondent departed from the standard required of a reasonable employer in imposing a wholly disproportionate penalty. The Complainant submits that he was the only person disciplined and the only person dismissed, despite having no hand, act or part in the incident on 10 January 2018.

The Complainant submits that he should have been told at the outset of the disciplinary process in clear and unambiguous terms what he was accused of.   The Complainant contends that it was not until 4 April 2018, nearly three months later, that disciplinary action was proposed and the nature of the allegation of wrongdoing, flimsy as it was, was made.

The Complainant submits that he was dismissed without notice at the conclusion of his appeals process on 13 August 2018.  The Complainant further submits that his dismissal was in breach of the Unfair Dismissal Acts in circumstances where, inter alia, the Respondent departed from the standard required of a reasonable employer in imposing a wholly disproportionate sanction.  The Complainant contends that there was an inordinate delay in reaching the conclusion of the disciplinary and appeal process and at all times the Complainant was trusted to continue at work as Duty Manager. The Complainant remained at work and the bond of trust and confidence allowed him to work throughout the investigation and disciplinary process from the date of the incident on 10 January 2018 to the date of dismissal on 13 August 2018.  He was not at any stage suspended from duty. The Complainant submits that, as a matter of fact, he was not told that the sanction of dismissal was contemplated.

Mitigation of Loss

The Complainant submitted evidence that he had applied for a large number of jobs following his dismissal.  He submitted that, because he had worked in a niche role during his employment with the Respondent, it was difficult for him to find alternative employment.  He eventually commenced a new job in August 2019 at annual salary of €42,000 whereas his annual salary with the Respondent was €64,000.  The Complainant submitted that his losses during the two years following his dismissal amounted to €86,000 and he is seeking redress of that amount.

Sworn evidence of the Complainant

The Complainant said that he was not aware of the incident on 10 January 2018 when it was taking place but he did recall asking AB to watch his speaker etiquette.  The Complainant stated that he first became aware of the incident when the victim of the prank, AB, came into the Control Room and said “That stunt your man pulled is out of order”.  When the Complainant enquired what had happened AB replied that it “was all sorted”.  The Complainant said that he first became aware that AB had complained about the incident when he received a letter to his home inviting him to an investigation on 18 January 2018.  He was very surprised and shocked when he opened the letter as he wasn’t aware that he would be getting it.

The Complainant explained that he had gone home sick on the night of the incident and ended up in hospital due to an asthma attack. He was absent from work for approximately 4 days.  Following his return to work, he worked every rostered day until he was dismissed.  The Complainant felt that he was dismissed because the Respondent wanted to reduce the number of duty officers. 

The investigation meeting took place on 12 February 2018.  The Complaint said that his representative requested documentation in relation to the investigation but only received it 2 days before the disciplinary hearing.  Therefore, he wasn’t aware of the full allegations until 2 days before the disciplinary hearing.

The Complainant said that at a meeting on 13 March 2018, the Investigator showed CCTV footage of the Control Room and asked the Complainant if he wanted to change his story.

The Complainant said that when he received the investigation report, his representative advised him to take a grievance complaint about the process.  This led to a delay in the disciplinary process such that he did not receive the outcome of the disciplinary hearing until 7 months after the incident. The Complainant felt that a double sanction had been applied to him as he received a final written warning and 2 weeks suspension.  The Complainant contends that the minutes of the disciplinary meeting were never agreed or signed off. 

The appeal meeting took place on 27 July 2018, which for the Complainant was an extraordinary length of time since the incident in January.

The Complainant said that he would never had expected to be dismissed as he had worked for the Respondent for 11 years and had an unblemished record. 

The Complainant said that he had a fraught relationship with the Operations Manager, Darren McGrath, and, therefore, Mr McGrath should not have conducted the disciplinary hearing.

Cross examination of the Complainant by Mr O’Gorman

The Complainant confirmed that he does not recall the Toll Supervisor coming into the Control Room on the day of the incident and that there was nothing unusual about the Toll Supervisor being in the Control Room.  The Complainant also confirmed that he was not aware of the incident.  He confirmed that, at the time of the incident, his radio was switched on but the volume was turned down. 

The Complainant acknowledged the inappropriateness of the Toll Supervisor’s actions and confirmed that he felt AB was right to make a complaint. 

In response to a question from Mr O’Gorman concerning the role of the Duty Manager, the Complainant agreed that he had responsibility to stop the Toll Supervisor from carrying out the prank.  He said that he would have done so if he had been aware of what was going on.

The Complainant said he had not seen a copy of AB’s complaint before the investigation meeting.  Mr O’Gorman drew his attention to the Respondent’s submission which contained a copy of the minutes of the investigation meeting which took place on 12 February 2018 wherein it is noted that the Complainant confirmed that he had received the investigation invite letter dated 18 January 2018 which included a copy of the Respondent’s Disciplinary Procedure and a copy of AB’s complaint letter.

In reference to the Complainant’s statement that there were no witnesses at the disciplinary or appeal hearing, the Complainant confirmed that he did not ask for witnesses to be in attendance as he did not know that he could question them.

In response to a question from Mr O’Gorman, the Complainant confirmed that he had received the minutes of the disciplinary hearing on the same day as he received the outcome letter.

Mr O’Gorman asked the Complainant why he had not objected to Darren McGrath conducting the disciplinary hearing given that he had contended that their relationship was fraught.  The Complainant responded that he didn’t know that he could.

The Complainant said that he did not believe that he could be dismissed and he did not believe that a sanction could be increased on appeal. He thought that the Employee Handbook was a draft and had not been finalised. 

In response to a query from Mr O’Gorman as to what he believed was an appropriate sanction, the Complainant responded that from the outset he had consistently denied any knowledge of the incident and, therefore, that no sanction was appropriate.

The Complainant mentioned that he had hearing difficulties.  Mr O’Gorman asked him if he had ever brought this to the attention of the Respondent.  The Complainant replied that he had not as he was concerned that what might happen as a result because another Duty Officer had been let go because of hearing difficulties.

Questioning of the Complainant by the Adjudication Officer

The Complainant confirmed that he used hearing aids (in fact, he was using them at the hearing) but that he never wore them to work as he was too embarrassed.  He said that part of the reason the he wasn’t aware of the incident was because he was not wearing his hearing aids at the time.

The Complainant contended that if his subordinate, BC, had made him aware of what was going on, he would have dealt with it.  The Complainant said that BC was not sanctioned in any way.  The Complainant confirmed that BC as a Tunnel Operator and, when the incident occurred, was the most junior employee in the Control Room.

The Complainant said that he did not have a chance to cross-examine  witnesses as he only got their statements 2 days before the disciplinary hearing.

Re-examination by Mr Kennedy BL

Mr Kennedy asked the Complainant if, at any stage, he agreed that he had any involvement in the incident. The Complainant responded that he never admitted to having any role and that if he had been aware of the incident, he would have done something about it. 

Complainant’s Closing Statement

The Complainant submitted that it was unfair that he was not allowed to appeal his dismissal. 

The Complainant further submitted that his case was on all fours with the recent High Court judgment where the Court found that that processing of data contrary to the stated purpose for which it was gathered with was contrary to the Data Protection Acts 1988-2018.

The Complainant submitted that the Respondent’s decision to dismiss the Complainant was not the action of a reasonable employer.  The Complainant pointed out that he was scheduled to work until the date of his dismissal which was not consistent with the Respondent’s contention that the bond of trust had been broken.

The Complainant relies on the following precedents in support of his complaint: Gallagher v Revenue Commissioners [1995] UR 1 at 63; Mooney v An Post [1998] 4 IR 288; Frizelle v New Ross Credit Union Ltd. [1997] IEHC 137; Allied Irish Banks Plc v Brian Purcell [2012] 23 ELR 189;  Governor and Company of the Bank of Ireland v James Reilly [2015] 26 ELR 229; Gerry Clarke v Boliden Tara Mines Limited; Patricia Heffernan v Dunnes Stores; Lyons v Longford Westmeath Education and Training; Noritake (Ireland) Limited v Kenna; Barry v. Precision Software Ltd [2007] E.L.R. 190; and, Sean Cavanagh v Dunnes Stores Ltd.

The Law

The Unfair Dismissal Act, 1997 stipulates that:Section 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.”

Section 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.”

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair, and Section 6(7) provides for an Adjudication Officer to have regard to

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act (to provide written reasons when requested) or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

In The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, Mr Justice Noonan elaborated on what was required by Section 6 of the Unfair Dismissals Acts as follows: “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 line with the above, my role, as the Adjudication officer in this case, is therefore not to establish the guilt of innocence of the Complainant but rather to decide if the Respondent acted reasonably in the circumstances. This view is supported by the EAT decision in Looney and Co Ltd. V Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the Complainant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

Dismissal as a fact is not in dispute and, therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was not unfair. Dismissal in this case, as submitted by the Respondent, arose as a result of the Complainant’s “actions and deliberate inaction” whereby he “willingly” allowed the endangerment of staff and members of the public using the tunnel”.  The Complainant was dismissed for gross misconduct by letter issued on 13 August 2018.

Procedural Framework

The first matter I must decide is if the procedural framework adopted by the Respondent is this case was in accordance with the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures and emphasises the importance of procedures to ensure fairness and natural justice. 

The Code of Practice provides that best practice entails a number of stages in the discipline and grievance process as follows:

·       That employee grievances are fairly examined and processed;

·       That details of any allegations or complaints are put to the employee concerned;

·       That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

·       That the employee concerned is given the opportunity to avail of the right to be represented during the procedure; and,

·       That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

My role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be expected in such cases considering the bar on what constitutes gross misconduct justifying dismissal is a very high one.

Investigation

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 sets out my remit in relation to disputes regarding internal investigations as follows:

“It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

I note that the Complainant’s representative asserted that the Respondent should not have used CCTV for the purpose of the investigation.  In this regard, I am following the findings of the Labour Court in the matter of Mr Thomas Gifford v Go Ahead Transport Services (Dublin) Limited (UD/20/191) where the Court found that:

“Arguments about the use of data are outside the competence of this Court. Any alleged breaches of the Worker’s rights in this regard are a matter for a different forum.”

Accordingly, I will not be making any findings in relation to the use of CCTV in the disciplinary process.

I note that, in his submission and in his direct evidence, the Complainant submits that he was not afforded due process during the investigation because the Investigator’s report made conclusive findings on the basis of the statements of colleagues which the Complainant was not given the opportunity to challenge.   The Respondent, however, submits that an employee who is the subject of a disciplinary procedure must make a request to cross-examine witnesses and that there is no positive obligation on the employer to facilitate cross-examination. 

Unlike the Respondent, I am firmly of the view that an employee who is subjected to a disciplinary process is entitled to the informed of their right to cross-examine  their accuser. If they are not informed and, as a result, fail to request cross-examination, they cannot be faulted for failing to do so. 

In considering the question of fair procedures, I note that the High Court in its determination in the case of Shortt v Royal Liver Assurance Ltd (2008) IEHC 332 Laffoy J outlined that a central consideration to a fair process is whether or not any purported breach of natural justice was “likely to imperil a fair hearing or a fair result”.  I note also the determination of the Employment Appeals Tribunal in the case of Murphy v College Freight Ltd (UD867/2007) where the EAT noted that a disciplinary procedure does not need to be “a counsel of perfection” but rather “they must be fair”.

In this case, there was overall fair and just procedures applied during the investigation, with the notable exception that the Complainant was not afforded the opportunity to cross-examine his colleagues.  Based on the totality of the submissions made by the parties and the evidence adduced at the hearing, I am of the view that nothing turns on this and that any procedural shortcomings in the investigation process were unlikely to “imperil a fair hearing or a fair result”. 

Disciplinary Hearing

I note the Complainant’s submission that no mention was made in the notification to attend a disciplinary meeting that dismissal was contemplated.  There is no dispute that dismissal was not the outcome of the disciplinary meeting and that a lesser sanction was applied.  Accordingly, I am of the view that the Complainant’s submission is misplaced.   

I also note the Complainant’s submission that he had a fraught relationship with the Disciplinary Manager and that this impacted on the fairness of the process.  Given that the Complainant, who was represented at the time, did not raise his concern about the impartiality of the Disciplinary Manager in the course of his appeal, I find that that, in line with my role as outlined above, it is not open to me to revisit this aspect of the disciplinary process.

Appeal

Throughout the disciplinary process and the adjudication hearing, the Complainant continuously emphasised that he was ill when the incident which led to his dismissal occurred and, indeed, one of the grounds of his appeal was his contention that the Respondent had failed to take mitigating circumstances into account when deciding to sanction him for his behaviour.  Likewise, during the disciplinary process and at the adjudication hearing, the Complainant referred to difficulties he had with his hearing.  At the adjudication hearing, he revealed that he required hearing aids but did not use them at work due to embarrassment and the fear of reprisal. 

In his decision on the Complainant’s appeal, the Appeals Manager comprehensively addressed the issue of the Complainant’s alleged illness at the time of the incident and his difficulties with his hearing.  As part of the appeals process, the Appeals Manager reviewed the Return to Work Form which the Complainant completed on his return to work on 10 January 2018 and stated that there was no mention of a hearing issue nor of any medication or ongoing condition that would hinder the Complainant’s ability to work.  In his appeal decision, the Appeals Manager wrote that he would be “seriously concerned that you [the Complainant] had not previously notified us in relation to the serious issues in your health that you mentioned during the various meetings”.

I note the Complainant’s submission that, the Respondent did not seek to verify the Complainant’s assertions about the state of his health during the incident on 10 January 2022 by referral to its own doctor or contact with the Complainant’s GP.  I am of the view that if the Complainant wished to rely on the poor state of his health and on his hearing difficulties to provide mitigation, then it was incumbent on him to have made the Respondent aware of these issues prior to 10 January 2022.  After all, the Complainant signed a Return to Work Form on 10 January 2018 in which he did not make the Respondent aware that he was suffering from any ailment that would render him incapable of carrying out his duties.  Nor did he make the Respondent aware of his hearing difficulties and the fact that he required a hearing aid.

While the Complainant has raised numerous issues about the disciplinary process in his referral to the WRC, a central plank of his complaint appears to be the fact that the outcome of the appeal was final and that no further avenue of appeal was made available to him. 

I note that in the letter of invitation to the appeal hearing, it was clearly stated that “the decision made following the appeal hearing will be final and there will be no further right of appeal against it.  In the same correspondence, the Complainant was informed that the appeal hearing would be conducted in accordance with the Respondent’s Disciplinary Procedure.  At the appeal hearing the Appeal Manager reminded the Complainant that “the outcome of the appeal may result in the sanction being upheld, removed, reduced or increased as per [the Respondent’s] Employee Handbook.

There was no dispute that the Respondent’s Employee Handbook was agreed with SIPTU.  At the adjudication hearing, the Complainant submitted that he believed that it was in draft format and had not been finalised.  I note that the Complainant was represented by SIPTU for the entirety of the disciplinary process and that no issue had been raised regarding the standing of the Employee Handbook.  Accordingly, I find that the Respondent acted in accordance with the Employee Handbook when conducting the appeal and that the outcome was in line with the provisions thereof.

In summary, I therefore conclude that whilst there may have been some flaws in the investigation, the Respondent conducted a staged process which overall, was fair and reasonable throughout.

Substantive matters

I must now decide if the decision to dismiss was a reasonable and proportionate response to the Complainant’s conduct. 

The concept of reasonableness is a core tenet of the Unfair Dismissals Act.  The general approach of tribunals to cases of dismissals for conduct was set out in Noritake (Irl) Ltd v Kenna UD 88/1983 as follows:

1.       Did the company believer that the employee misconducted himself as alleged?

2.       If so, did the company have reasonable grounds to sustain that belief?

3.       If so, was the penalty of dismissal proportionate to the alleged misconduct?

In the case of O'Riordan v Great Southern Hotels UD1469/03 the EAT held that: "In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the accused of wrongdoing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

In Bunyan v United Dominions Trust, the EAT endorsed the following view: “the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business would have behaved”.

The issue was further considered in Bank of Ireland v Reilly, cited above. At paragraph 56 Noonan J. stated:

“In assessing the reasonableness of the employer’s conduct in relation to dismissal herein, it seems to me that such an assessment must have regards to the surrounding circumstances, including the impact of the conduct on the employer as against the impact of the dismissal on the employee to determine the proportionality of the employer’s response.”

In the Disciplinary Appeal Outcome letter of 13 August 2018, the Appeals Manager found that the Complainant had lost control of the tunnel and had allowed a junior colleague to take control of the tunnel for a period of 93 seconds.  He also found that “the duration of the incident, following the initial radio call, afforded [the Complainant] ample opportunity to intervene, even allowing for a brief mitigation due to possible illness or inattention”.  The Appeals Manager further found that “the nature of the radio communications and the use of key words and phrases would only have been missed by someone who knew this was a prank and deliberately chose not to intervene”.

The Appeals Manager concluded that he “would view this incident as being the most serious incident to date in terms of its severity and the potential for injury or loss of life. The reputation of the Dublin Tunnel itself was also in jeopardy. While taking into account the mitigating circumstances associated with the fact that you state you were feeling unwell on the evening in question, I find that your behaviour is an instance of gross misconduct to the point that, through your actions and deliberate inactions, you willingly allowed the endangerment of staff and members of the public using the tunnel.

I therefore dismiss you forthwith from employment with immediate effect. Due to the severity of your conduct, the necessary trust and confidence required as your employer, has been irreparably damaged”.

The Cambridge Dictionary defines a prank as “a trick that is intended to be funny but not to cause harm or damage”.  I am of the view that what occurred on 10 January 2018 does not fall within the dictionary definition of “prank”.  Instead, I would view the actions of the prankster, the Toll Supervisor, as a foolish act which could have resulted in injury and even loss of life to both employees of the Respondent and members of the public who were using the tunnel at that time.  The very essence of the Complainant’s position as Duty Manager is to safeguard the health and safety of all tunnel users.  Through his actions in not stopping the Tunnel Controller from carrying out the so called “prank”, the Complainant failed to fulfil the key duties of his role. 

I note that the Complainant has always denied any knowledge of the Tunnel Controller’s actions on 10 January 2018.  Frankly, I am at a loss to understand how the Complainant heard the victim of the prank use the word “shit” but did not hear the Toll Supervisor use incident critical phrases including “multi-vehicle collision”, “debris” and “take evasive action”.  This would lead me to reach the same conclusion as the Appeals Officer that, on the balance of probabilities, the Complainant heard the entire incident and did not take any action to stop it.

Trust and confidence are essential in all working relationships. There is an implied term in every contract of employment that requires both employers and employees to refrain from behaving in such a way as to destroy the relationship of trust and confidence. As a consequence of the Complainant’s action, or inaction, the Respondent had every entitlement to lose confidence and trust in him. I am of the view that any employer faced with the same circumstances to those that pertained in this case would have acted in the same way.  I, therefore, find that the conclusion reached by the Respondent in relation to the conduct of the Complainant was reasonable in all of these circumstances.

In the light of all the foregoing, I find that the Respondent acted reasonably in applying the ultimate sanction of dismissal and, therefore, acted as a reasonable employer would have in such circumstances.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I declare that the complaint is not well founded.

The Complainant submits that he was not paid any notice and that it is within my latitude to consider the complaint under the Payment of Wages Act 1991.

The Respondent submitted that the Complainant should have submitted this complaint under the Minimum Notice and Terms of Employment Act 1973 and not under the Payment of Wages Act 1991 and, therefore, that there is no valid complaint before me.

It is well established in many decisions of the former Employment Appeals Tribunal and the Labour Court that, an employee who is dismissed for gross misconduct is not entitled to notice, regardless of their length of service.

Given that I found elsewhere in this decision that the Complainant was not unfairly dismissed by Respondent on the grounds of gross misconduct, I find that this complaint cannot succeed.

I find that this complainant is not well founded.

Unfair Dismissal – Payment of Wages