Complainant

Respondent

Parties

Peter Gleeson

Go-Ahead Ireland Bus Limited

Representatives

Vivian Cullen, SIPTU

David Horgan, Stratis

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-00055843-001

31/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00055843-002

31/03/2023

The respondent operates buses under contract to the National Transport Authority, with 30 routes across Dublin city and county.  The complainant is a bus driver and he joined the company on November 4th 2019.  He earned €800 gross per week.  He was dismissed without notice on December 12th 2022 for using his mobile phone while driving.  He claims that the sanction of dismissal was too severe and that the process that resulted in his dismissal was flawed.

The Reason for the Dismissal

The respondent’s Mobile Phone Policy provides that employees are not permitted to use mobile phones while driving.  In his submission, Mr Horgan stated that the reason for this is that the Road Safety Authority has found that a driver using a mobile phone is four times more likely to have a crash compared to a driver not using a phone.

The respondent’s performance and conduct guidelines state as follows:

“It is not possible to provide a comprehensive definition of behaviour which would be regarded as Gross Misconduct or Gross Negligence or a fundamental breach of contract, but the following may be taken as examples….

(Sections (a) to (l) are not relevant to this complaint).

(m)  Use of mobile phones or earpieces (and personal audio equipment) whilst driving all types of company vehicle or using any vehicle whilst on Company business.”

At induction, employees are informed that the use of a mobile phone in the cab of a bus, except in the case of an emergency or if authorised by controllers in the event of a breakdown, is prohibited.

On November 24th 2022, near Prosperous, County Kildare, there was an incident involving the bus driven by the complainant and a van in which the mirror on the bus was damaged.  A review of the incident and of the CCTV footage indicated that the complainant was using his mobile phone just before the collision occurred.  On December 1st, the complainant was suspended and an investigation meeting took place on December 6th.  This was followed on December 12th by a disciplinary hearing.  At the hearing, the complainant admitted that he was using his phone in the cab.  He explained that he used it to check the time to report the incident and to speak to the engineer.  Later that day, he was dismissed.  In his letter sent on the same day, the Dublin commuter operations manager, Mr Keith McDonnell, explained why he dismissed the complainant:

“I have taken into consideration that you do not deny the allegations, and hold yourself fully responsible and accountable, as noted in the investigation and subsequent disciplinary hearing.  I cannot overlook the seriousness of your actions on the day.  The evidence put before me shows that you used a mobile device in the cab of a moving bus while in service.  As per company policy, the act of using a mobile while in control of a company vehicle is considered gross misconduct, and I believe in this case, gross misconduct has been proven.  After careful consideration and reviewing all the information available as well as the additional information you provided to us during the course of the investigation, it has been decided that we will be summarily dismissing you from employment with Go Ahead Ireland (the company) with immediate effect.”

Following his dismissal, the complainant submitted an appeal, which was heard on January 6th 2023.  The regional operations manager, Mr William Cullen, who heard the appeal, found no reason to change the decision of the previous manager, Mr McDonnell, to dismiss the complainant.

The Relevant Law

The Road Traffic Act 2006 prohibits the use of a mobile phone while driving.  Any accident involving a bus could have the most serious consequences.  Mr Horgan submitted that the complainant’s contract of employment on the use of mobile phones while driving “could not be more clear and the complainant was fully aware of this.”

Legal Precedents

Mr Horgan referred to the following legal precedents to support the respondent’s case that the dismissal of the complainant was not unfair:

In the High Court judgement of the Governor and Company of the Bank of Ireland v Reilly[1], Mr Justice Noonan stated that,

“…the onus is on an employer to establish substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in Section 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 judgement as to whether the dismissal was reasonable for that of the employer.  The question is rather, 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 UD EAT/0506/09/DM.

I respectfully agree with the views expressed by Judge Linane in Allied Irish Banks -v- Purcell 2012 23 ELR 189, where she commented (at page 4):

References made to the decision of the Court of Appeal in British Leyland UK Limited -v- Swift 1981 IOLR 91, and the following statement of Lord Denning MR at page 93:

‘The correct test is:  was it reasonable for the employers to dismiss him?  If no reasonable employer would have dismissed him, then the dismissal was unfair.  But, if a reasonable employer might have reasonably dismissed him, then the dismissal was fair.  It must be remembered that, in all these cases there is a band of reasonableness, within which one employer might reasonably take one view and another quite reasonably take another view.’

It is clear that it is not for the EAT or this Court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view, but to ask was it reasonably open to the Respondent to make the decision it made rather than necessarily the one that the EAT or the Court would have taken.”

Mr Horgan submitted that there is no credible basis for finding that the dismissal of the complainant was outside the range of reasonable responses open to the respondent.  Having admitted to misconduct, the complainant was dismissed for that misconduct.

Mr Horgan said that the company complied with the requirements of Statutory Instrument 146 of 2000, the Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000).  He was represented at meetings with management and he had an opportunity to challenge the allegations that were put to him.  There was a separation between the disciplinary investigation and the disciplinary hearing and he availed of his right to appeal to a third manager.

The respondent’s position is that the dismissal of the complainant for using a mobile phone while driving was a proportionate sanction in the circumstances.  The prohibition on the use of a mobile phone while driving a bus is of fundamental importance to the protection of the health and safety of employees and the public.  This is the gross misconduct for which the complainant was dismissed.

Passenger services operated by the respondent carry mandatory signage advising that CCTV monitoring is in operation on all buses.  The same message is contained in the employee handbook.  The CCTV policy provides that the CCTV footage can be used for investigations into incidents and the conduct of employees.  It is specifically provided for that the CCTV records may be used in investigations conducted under the heading of performance and conduct.  The complainant was familiar with the CCTV policy and the company had a legitimate reason for processing it.  All the processing was within the framework of the company’s Data Protection and CCTV policies.

Mr Horgan asked me to consider the decision of the Labour Court in March 2022 in the appeal of Go Ahead Transport Services Limited against the findings of an adjudicator in the case of the dismissal of Thomas Gifford[2].  Like the complainant, Mr Gifford was dismissed following a finding that he was driving while using a mobile phone.  The Labour Court held that the process that led to Mr Gifford’s dismissal was flawed; however, it set aside the award of compensation decided on by the adjudicator at the WRC, concluding that he contributed entirely to his dismissal.

Conclusion

The use of a mobile phone while driving a bus is strictly forbidden and clearly classified by the respondent as gross misconduct.  The complainant accepted and acknowledged that he used his mobile phone and this admission, alongside the CCTV evidence, formed the basis of the decision to dismiss him.  Mr Horgan asserted that the procedures used by the company were in compliance with SI 146 of 2000.  As the complainant was dismissed for gross misconduct, Mr Horgan asked me to find that his complaint under the Unfair Dismissals Act is not well founded and that his complaint under the Minimum Notice and Terms of Employment Act is also not well founded.

Allegations of Gross Misconduct

On behalf of the complainant, Mr Cullen of SIPTU said that, before the incident on November 24th 2022, when a vehicle clipped the mirror of the bus he was driving, he “allegedly used his mobile phone.”

Mr Cullen submitted that the manager who conducted the initial investigation into this matter was prejudiced and that his involvement contaminated the complainant’s right to a fair and impartial investigation.

Mr Cullen argued that the use of CCTV footage was not agreed with the union and that its use is a breach of data protection principles.

Mr Cullen submitted that the sanction of dismissal was too harsh, that the complainant’s entitlements under General Data Protection Regulations were infringed and that, in the procedure that led to his dismissal, there was a breach of natural justice and fairness.

The Unfair Dismissals Act 1977

Mr Cullen referred to s.6(1) of the Unfair Dismissals Act, which states,

(1)  Subject to the provisions of this section, the dismissal of an employeeshall 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.

He also referred to s.6(7), which deals with the issues that the adjudication officer may consider, when deciding on a complaint under the Act:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so -

(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 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.

Legal Precedents

Mr Cullen referred to the decision of the former Employment Appeals Tribunal (EAT) in the case of An Employee against an Employer[3].  In that case, the Tribunal stated that the adjective “substantial” means that the ground relied upon “should be a matter of substance rather than form, and should be a matter of gravity.”  Mr Cullen argued that, in s.6(1), there is no reference to the word “gross” or even “misconduct,” and that the more neutral term “conduct” is used. 

Mr Cullen said that the union refutes the allegation of gross misconduct and that they rely on the established jurisprudence in relation to dismissal law which takes a restrictive view of what constitutes misconduct justifying summary dismissal.  Mr Cullen referred to the 1978 decision of the EAT in the case of Lennon V Bredin[4] where the Tribunal held that,

“We have always held that this…applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer; we believe the legislature had in mind such things as violent assault or larceny or behaviour in the same serious category.”

Arguing that the respondent did not adhere to its CCTV policy, Mr Cullen referred to the case at the High Court of Doolin v the Data Protection Commissioner[5].  In that judgement, the High Court held that the permissible use of CCTV footage in an investigation to promote security and safety was unlawfully further processed in a disciplinary process.      

Code of Practice on Grievance and Disciplinary Procedures, Statutory Instrument 146 2000

Mr Cullen argued that, in the case of this complainant, a flawed process has resulted in a flawed outcome.  He claims that the respondent did not ensure that the complainant had access to a fair and impartial procedure and therefore negated the principles of natural justice and fair procedures and a measured and proportional response.  Mr Cullen submitted that the respondent is “not free from blame and capriciousness in this case…”  He said that there wasn’t sufficient independence between those deciding on the findings and “their biased recommendation for a disciplinary investigation.”  He said that this offends against the principle that, not only must justice be done, but it must be seen to be done.

The Band of Reasonable Responses

Mr Cullen asserted that, as the adjudicator in this case, my role is not to place myself in the place of the employer, but to consider if the actions of the employer fall within the rage of actions which a reasonable employer in the same circumstances would take.  In this regard, Mr Cullen referred to the decision of the Court of Appeal of England and Wales in the Union of Construction Allied Trades and Technicians v Brane[6], where the Learned Judge Donaldson stated,

“Tribunals must not fall into the error of asking themselves the question, ‘would we dismiss?’ because there is sometimes a situation in which one reasonable employer would and one would not.  It is sufficient that a reasonable employer would regard the circumstances as sufficient for dismissing.  The statute does not require the employer to satisfy the Tribunal of the rather more difficult consideration that all reasonable employers would dismiss in those circumstances.”

Mr Cullen then referred to the decision of the Court of Appeal in the UK in Derryquin Hotels Limited v Savage[7] in which Lord Denning MR outlined the position as follows:

“It must be remembered that, in all these cases there is a band of reasonableness within which one employer might reasonably take one view; another quite reasonably take a different view.  One would quite reasonably dismiss the man.  The other would quite reasonably keep him on.  Both views may be quite reasonable.  If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair, even if another employer may not have dismissed him.”

Like Mr Horgan, Mr Cullen also referred to the decision of the High Court in the Governor and Company of the Bank of Ireland v Reilly (footnote 1) arguing that s.6(7) of the Unfair Dismissals Act makes it clear that I, as the adjudicator in this matter, must consider the reasonableness or otherwise of the respondent’s conduct in this matter.  The issue to be considered is, whether the decision to dismiss the complainant was within the range of reasonable responses of a reasonable employer.  In this regard, Mr Cullen asked me to also consider the findings of the Employment Tribunal in the UK in Royal Bank of Scotland v Lindsay[8].

Proportionality of the Sanction of Dismissal

The issue of the proportionality of a sanction of dismissal was addressed by the Labour Court in February 2023 its decision in An Employer v A Worker[9]:

“The Court must assess whether in all of the circumstances of a particular case that the sanction of dismissal was proportionate and appropriate.  In considering the question of proportionality, the test for reasonableness was set out in Noritake (Irl) Limited v Kenna[10] as follows:

1.        Did the company believe 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 proportional to the alleged misconduct?”

Mr Cullen referred to the decision of the High Court in Frizelle v New Ross Credit Union Limited[11], where, setting out the legal principles, Mr Justice Flood stated,

“Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct, including,

1.       The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in light of the explanation offered.

2.       The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and to the gravity of the effect of the dismissal on the employee.”

Mr Justice Flood further noted that, “put very simply, the principles of natural justice should be unequivocally applied.”

Conclusion

Summarising the complainant’s case that his dismissal was unfair, Mr Cullen said that the complainant had an alarm on his phone to remind him to take medication.  On the day in question, November 24th 2022, his phone alarm sounded and he switched it off.

Mr Cullen submitted that the complainant did not receive a fair and impartial investigation, but that the decision to dismiss him was decided before the investigation.  The respondent’s “zero tolerance” policy regarding mobile phone use resulted in an automatic and punitive dismissal.  No other, less draconian sanction was contemplated by the employer.

Mr Cullen described the investigation and disciplinary process as “fruit from the poison tree,” demonstrating a bias against the complainant.  Mr Cullen asked me to find that the dismissal of the complainant was unfair and to award him redress.

Evidence of the Complainant, Mr Gleeson

In his direct evidence at the hearing, the complainant said that, at 5.45am on November 24th 2022, he was driving to Dublin on a country road near Prosperous, County Kildare.  A van coming at speed in the opposite direction collided with the mirror on the driver’s side of his bus.  The van did not stop.  The complainant said that he couldn’t remember if he used the radio or his mobile phone to inform the depot about the incident.  About 30 minutes later, a tyre on the bus blew out as he was going around a roundabout.  He had to pull over and let the passengers disembark and they waited for 25 minutes for another bus to pick them up.

Referring to his dismissal, the complainant said that he believes that he shouldn’t have been dismissed and that he could have been given a lesser sanction.  He said that he should have been given a chance and he claimed that another employee who was found to be using his mobile phone while driving wasn’t dismissed.

Mr Horgan did not cross-examine the complainant.

The Legal Framework

The complainant’s representative, Mr Cullen, referred to s.6(1) of the Unfair Dismissals Act 1977 – 2015 (“the Act”) which provides that:

“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)(b) of the Act provides that,

“…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 …the conduct of the employee.”

From this, we understand that the burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant.  In the letter of dismissal dated September 12th 2022, the operations manager, Mr McDonnell, summarised the conduct that led him to dismiss the complainant:

“It is alleged that on 24/11/2022 while in control of vehicle (number xxxxx) you were using your mobile device.”

On the second page of his letter, Mr McDonnell went on to reach a conclusion regarding the complainant’s conduct:

“I have taken into consideration that you do not deny the allegations, and hold yourself fully responsible and accountable, as noted in the investigation and subsequent disciplinary hearing.  I cannot overlook the seriousness of your actions on the day.  The evidence put before me shows that you used a mobile device in the cab of a moving bus while in service.  As per company policy, the act of using a mobile while in control of a vehicle is considered gross misconduct, and I believe in this case, gross misconduct has been proven.”

At the initial investigation, and, at the disciplinary hearing, the complainant did not dispute his use of the mobile phone while in the cab of the bus in service.  He said that he might have picked it up to check the time for the Tracerit, and to talk to the engineer.  At the appeal hearing, he said that he might have picked up his phone to turn off the alarm.

In my determination on the question of whether it was reasonable to dismiss the complainant for using his mobile phone while driving, I am required to address the issues raised by Mr Cullen:

1.       Was it fair to use CCTV footage as evidence to support the decision to dismiss the complainant?

2.       Was the dismissal proportionate in relation to the offence?

3.      Was the process that led to his dismissal a fair process?

1.  Use of CCTV Footage

From the documents submitted at the hearing, it is apparent that, after the incident on November 24th 2022, during which the mirror on the complainant’s bus was damaged by an on-coming van, the company’s risk team looked at the CCTV footage from the bus and noted that, just before the incident, he was using his mobile phone.  This information was provided to the assistant operations manager, Mr Osamwonyi, who, on December 1st, informed the complainant that he was suspended, pending an investigation into the incident.

Mr Cullen said that SIPTU and the company have no agreement to use CCTV footage as part of the evidence gathered in the course of a disciplinary investigation.  He claims that this flaw in the disciplinary process resulted in a flawed outcome for the complainant.

The respondent’s CCTV policy states that its purpose is,

“…for the safety of the organisation’s employees, customers, visitors and contractors, but also for the prevention and detection of crime, security training / performance and public safety.”

At section E, under the heading of the categorisation of CCTV data, the policy provides that data may be collected regarding an incident which could lead to disciplinary action.  At Appendix 1, under the heading, “Monitoring at Work,” the policy states as follows:

“There may be occasions when monitoring reveals an incident involving an employee that needs to be addressed.  In such cases the employee will be made aware of the issue and, if appropriate, the evidence will be used as part of the investigation in accordance with the Company Performance and Conduct Guidelines.”

While the use of CCTV in disciplinary proceedings has not been agreed with SIPTU, in the absence of such agreement, there is a requirement for the company to have a policy and to ensure that employees are aware of its provisions.  I am satisfied that the respondent has met its obligations in this regard and the failure to reach an agreement with the union does not impinge on the fairness of the policy.

When the investigation meeting opened on December 6th 2022, the assistant operations manager told the complainant and his representative that he hadn’t viewed the CCTV footage and he proposed that he would watch it with them.  When the union representative said that he didn’t want to watch the recording, he told the manager that he could “call us back in after you have watched the CCTV.”  This would appear to demonstrate a tacit acceptance of the use of CCTV footage, while seeking to maintain some distance from the evidence that emerges.

It seems to me also that the proliferation of CCTV recording is now commonplace and accepted and, as the complainant was always aware that he was being recorded while driving, no unfairness arises from the use of the evidence gleaned from the footage. 

2.  Was the Sanction Proportionate?

Section 3(1) of the Road Traffic Act 2006 doesn’t just prohibit the use of a mobile phone while driving, but refers to the fact of holding a phone: 

(1) A person shall not while driving a mechanically propelled vehicle in a public place hold a mobile phone.

Matching this legal provision, the respondent has a “zero tolerance” approach to the use of phones by drivers in the cab of a bus.  There is a reason for this legal and corporate approach to drivers’ use of mobile phones; distraction through the use of a phone is dangerous and can lead to accidents causing injury and death.  The company has a responsibility to prevent such accidents and, by its policies, to limit the risk of a phone-related accident happening.

I have read the company’s policy on the use of mobile phones.  Following an opening statement describing a “zero tolerance approach,” the second paragraph states:

“The company must ensure the safety of our customers, the public and employees.  Employees have a duty to work with maximum care and efficiency.  The use of a mobile phone or other electronic mobile device whilst driving or in charge of a vehicle is highly likely to affect, performance, efficiency and behaviour and therefore compromises safety.”

I fully accept that the sanction of dismissal was severe and that its impact on the complainant was significant.  However, considering the risk of injury and death to passengers, to the complainant and to the public and the reputational risk to the company, it is my view that the decision to dismiss him was proportionate.  Because of the risk of a catastrophic accident, and, because the policy is so clear, well known and widely communicated, the failure to comply with this fundamental safety procedure meets the “substantial grounds” test at s.6(1) of the Act.  I have taken account of the decision of the Labour Court in the case of Go Ahead Transport Services (Dublin) Limited and Thomas Gifford (footnote 2).  Like the complainant, Mr Gifford was found to be holding a mobile phone while driving.  Although the process that ended with his dismissal was found to be unfair, the Court decided that he contributed 100% to his dismissal and made no award of redress. 

3.  Was the Process Fair?

On behalf of the complainant, Mr Cullen argued that an unfairness arises because the assistant operations manager, Mr Osamwonyi, “formulated the allegations” against the complainant on December 1st 2022 and also conducted the disciplinary investigation on December 6th.  I find that no unfairness arises from this fact.  Mr Osamwonyi was responsible for the first part of the disciplinary process, including the responsibility for setting out the allegations that the complainant had to answer.  I am satisfied that the union representative who attended the December 6th meeting with the complainant did not identify a bias on the part of Mr Osamwonyi arising from him sending the letter of December 1st.

Secondly, under the heading of unfair procedures, Mr Cullen submitted that the prohibition on the use of mobile phones while driving should not be included in the list of behaviours categorised in the disciplinary procedure as “gross misconduct.”  I have already addressed the seriousness of the failure to comply with this critical road safety requirement and I am satisfied that the categorisation as gross misconduct of using a mobile phone while driving is correct. 

Conclusion

At the hearing of this complaint, it was very apparent that the complainant liked his job with the respondent and that he was extremely upset when he was dismissed.  To his credit, he started driving again for another company, although not until more than a year after his dismissal.  Unfortunately, for the complainant, his failure to comply with one of the most critical safety aspects of his job led to him being dismissed, a decision which I find was not unreasonable.  I find that the respondent’s managers treated him fairly throughout the process, and that consideration was given to his explanations and to his unblemished service of three years up to the date of the incident. 

I find that, in all respects, the procedure that ended with the complainant’s dismissal was consistent with the standard of fairness set out in the WRC Code of Practice on Grievance and Disciplinary Procedures in Statutory Instrument 146 of 2000 and in accordance with the respondent’s own disciplinary procedures.

I have found that the decision of the respondent to dismiss the complainant was reasonable and proportionate and I also find that the process was fair.  On this basis, I have decided that the complaint under the Unfair Dismissals Act is not well founded.

The complainant claims that he was entitled to statutory notice of the termination of his employment, in accordance with the Minimum Notice and Terms of Employment Act 1973.

It is the respondent’s case that, because the complainant was dismissed as a result of a finding of gross misconduct, he was not entitled to notice. 

Section 8 of the Minimum Notice and Terms of Employment Act 1973 -2015 provides as follows:

“Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.”

I refer to the determination of the Labour Court in the case of Clogrennane Lime Limited and Joseph Curran[12].  Mr Curran was dismissed for gross misconduct and his dismissal was determined by the Court to be not unfair.  In this context, the Chairman, Mr Foley upheld the decision of the adjudicator that Mr Curran’s claim for statutory minimum notice had failed.

I have concluded here that the dismissal of the complainant was not unfair and I also find that, arising from the incident on November 24th 2022, it was reasonable for his employer to conclude that he should not continue in employment and work out his notice. 

I have decided that this claim under the Minimum Notice and Terms of Employment Act 1973 – 2015 is not well founded and that no payment is due to the complainant in respect of pay in lieu of notice.

Dismissal, conduct, notice