Complainant

Respondent

Parties

Okan  Karpuz

Bus Atha Cliath Dublin Bus

Representatives

Barnaba Dorda SIPTU

Hugh Hannon CIE Solicitors

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-00034966-001

02/03/2020

The Complainant alleges that he was dismissed in the absence of fair procedures. The Respondent denies the allegation.

The Complainant took the affirmation.

The Complainant relies on his written submissions and in addition gave evidence as follows:

He was employed as a bus driver for the Respondent. On 30th October 2019 the Complainant, whilst driving the bus made contact with his daughter. Whilst at the bus terminal in Ashtown he sent her a text to see if everything was ok. She was at home minding the Complainant’s son. Both are minors.  She did not respond. Sometime later when he was on his route, his phone beeped. When he was next stopped at traffic lights, he took the phone out and looked at it. He was seen doing that by a bus inspector. He was informed by the bus inspector that he would be writing up a report about his use of mobile phones whilst driving. The following day he received an invitation from Tim Fitzgibbon to a disciplinary hearing. The meeting was scheduled for the 7th November but no specific time was given.  The inspector’s report was enclosed with the invitation. He worked on as usual.

On the 21st November, his son was ill. He missed a call from his wife and there was a voice message on the phone. When sitting at traffic lights he used the phone to listen to the message. As soon as the lights went green, he put the phone away. Unfortunately, he was observed by an inspector whilst using the phone. He was later informed that he was being reported for using the phone. At 11.30am he was told that he had to meet with Tim Fitzgibbon. He was not told the purpose of the meeting but he knew it was going to be about the mobile phone use. Before the meeting Mr Fitzgibbon spoke to his Union representative. The Union representative objected to the meeting going ahead in the absence of a proper investigation. The meeting proceeded regardless but it was deemed an investigation meeting instead.  The Complainant was questioned about both incidents in relation to this use of a mobile phone whilst driving. The Complainant believes that Mr Fitzgibbons carried out further investigations following the meeting and then on the 2nd December the Complainant was informed that the decision to dismiss him had been made. He appealed. He was allowed to continue driving the bus until the conclusion of the appeal hearing.

The appeal hearing was on the 18th December 2019. The appeal was disallowed. His last day of work was the 20th December.  He was paid in lieu of notice.

He filed a further appeal, a mercy appeal. Mr. Donohue heard this appeal. He seemed to take an old warning from 2012 into account as he mentioned it during the meeting. The appeal was disallowed.

The Respondent did not follow fair procedures. They did not act on the first investigation report for some time and up until they received the second report. The first meeting the Complainant was called to was a disciplinary hearing, not an investigation hearing. It was the same situation for the second hearing. The Respondent was inconsistent in how they dealt with the two incidents. The first one was essentially ignored but the second one was dealt with promptly.

The Complainant is of the opinion that there is no policy relating to “ holding” mobile phones whilst driving. Other drivers in similar situations were not dismissed so there is a lack of consistency in relation to the Respondent approach to such matters.

The Complainant after his dismissal applied for social welfare. They gave him information in relation to potential employment.  He applied for lots of positions. He got a job as a bus driver for the Clayton Hotel but he is now working for Accenture.

The Respondent relies on its submissions filed and the exhibits therein.

Alan Grant after taking the affirmation gave his evidence as follows:

He is the head of HR and Development. The Respondent has a policy in relation to the use of mobile phones whilst driving. It is a zero - tolerance policy. It is deemed Gross misconduct and the sanction can be anything up to and including dismissal. Mr. Grant opened all of the relevant policies and procedure which are included in the booklet provided for the hearing.

In relation to allegation of lack of consistency the Respondent has had 16 drivers who have been dismissed at 1st instance for breaching the mobile phone policy. 10 of those were successful at the appeal stage. Each case is dealt with on his own facts.

Mr Tim Fitzgibbon, after taking the affirmation, stated that he received a report from David Kelly stating that the Complainant was caught, by inspectors, using a phone whilst driving on the 30th October. He wrote to the Complainant on the 31st inviting him to a meeting. The meeting was a disciplinary meeting. The meeting was scheduled for the 7th November. He did not turn up. The meeting was rescheduled for the 21st. Arrangements were made to have him taken off duty so he could attend the meeting. On the 21st November, before the meeting he was caught for a second time using the phone whilst driving. It was decided to deal with both mattes together. The Complainant was advised at the time of each incident that an inspectors report would be prepared. He had both reports in his possession prior to the meeting.

Prior to the meeting Mr. Fitzgibbon spoke to David Kelly and Leo Murphy who did the reports.

He was invited to attend a meeting on the 7th November. He did not attend. On the 21st November he was relieved from duty so that he could attend the rescheduled meeting. He did attend.

On both occasions he was asked by the inspector for his reasons for the use of the mobile phone, The excuses given are set out in the inspector’s reports.

Mr. Mc Keown who gave evidence after the affirmation stated that the Complainant’s Union Representative asked that both incidents be dealt with together on the 21st. As a result, both incidents were the subject of the preliminary investigation on the 21st. The Complainant attended the meeting, and he was accompanied by this Union representative. He was given every opportunity to state his defence to the allegations. Mr. Mc Keown did up his report after the meeting and sent them into HR.

The Complainant appealed the decision dismiss him. That appeal was heard on the 18th December.  The Appeal was not successful. On the 8th January an Ad- Misericordiam hearing took place at the HR department. That appeal was disallowed. He was notified by letter dated 13.01.2020. He appealed again and that too was not successful.

David Kelly gave evidence after taking the affirmation. He stated that he observed the Complainant using his mobile phone whilst driving on the 30th October. He prepared his report afterwards. The report before the Adjudication officer today is the same one and reflects the factual situation.

Leo Murphy gave evidence after taking the affirmation. He stated that he observed the Complainant using his mobile phone whilst driving on the 30th October. He prepared his report afterwards. The report before the Adjudication officer today is the same one and reflects the factual situation.

The Complainant does not contest the fact that he was caught using his mobile phone whilst driving the Respondent’s bus. He does take issue with the fairness of the process that led to his dismissal. In that regard he accepts that he was given a copy of the investigation reports in relation to both incidents. He accepts that he was given an opportunity to voice his side of the events. He accepts that when challenged the Respondent agreed to hold an investigation meeting as opposed to a disciplinary meeting in November 2019. He was allowed appeal the decision and somewhat unusually he was given a second chance at an appeal. He took issue with the Respondent’s inconsistent approach in relation to the use of mobile phones whilst driving. In that regard I do not have all of the facts in relation to other drivers who were caught using mobiles, how they were treated and what the outcomes were for them. It would be inappropriate of me to consider that issue without a full set of facts in relation to each particular individual. Every case must be assessed on its own facts independent from all others.

Having carefully assessed both the Respondent’s evidence and the Complainant’s evidence, I can find no breach of procedure that could render the dismissal unfair. The Complainant was given all of the necessary documentation relied on by the Respondent. He was given an opportunity to voice his defence, he was given the opportunity to appeal the decision, not once but twice.

In all of the circumstances I find the complaint is not well founded and accordingly fails.

The complaint is not well founded and accordingly fails.

Dismissal, procedures, consistency, fairness, appeal.