FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : TRANSDEV DUBLIN LIGHT RAIL LIMITED (REPRESENTED BY MARCUS DOWLING B.L. INSTRUCTED BY BYRNE WALLACE SOLICITORS) - AND - ADIL SHAFIQ (REPRESENTED BY JAMES DORAN B.L. INSTRUCTED BY PATRICK DONAGHY & COMPANY SOLICITORS) DIVISION : Chairman: Mr Haugh Employer Member: Ms Connolly Worker Member: Mr McCarthy |
1. Appeal of Adjudication Officer's Decision No: ADJ-00002894.
BACKGROUND:
2. The Worker appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8(A) of the Unfair Dismissals Acts 1977 to 2015. A Labour Court hearing took place on 10 July 2018. The following is the Determination of the Court:
DETERMINATION:
Background to the Appeal
This matter came before the Court by way of an appeal brought by Mr Adil Shafiq (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00002894, dated 29 January 2018) under the Unfair Dismissals Act 1977 (‘the Act’) wherein the Complainant’s complaint of unfair dismissal was held to be not well-founded. The Notice of Appeal was received by the Court on 9 March 2018. The Court heard the appeal in Dublin on 10 July 2018.
Two witnesses gave evidence on behalf of Transdev Dublin Light Rail Limited (‘the Respondent’): Ms Jacqueline Brennan and Mr Brian Murphy. The Respondent also opened CCTV footage of an incident that occurred on 24 August 2015 and which gave rise to the process that culminated in the Complainant’s dismissal on 2 November 2015. The Complainant gave evidence on his own behalf.
The Complainant was initially employed by the Respondent’s predecessor (Veolia Transport Limited) in June 2008 as a Customer Service Officer. His job title was subsequently changed to that of Revenue Protection Officer (RPO). His role as an RPO was to check the tickets of the passengers on the LUAS tram system. In the event that he encountered a passenger without a valid ticket he was required to issue that passenger with a Standard Fare Notice. RPOs are regularly provided with training on how to manage difficult customers, aggressive behaviour, crowd dynamics and related matters.
The Incident of 24 August 2015
It is common case that an incident involving the Complainant and a member of the public took place sometime between 10.00 p.m. and 10.30 p.m. on 24 August 2015 while the Complainant was engaged in his duties on the Green Luas line. The incident occurred at Cowper LUAS stop in the environs of a tram that was heading towards St Stephen’s Green. On the following day, that member of the public complained formally to the Respondent that he had been physically assaulted by a member of the Respondent’s staff on the previous evening. He alleged that he had been punched on the back of his head by a staff member.
Four members of the Respondent’s staff (including the Complainant) who were present at Cowper completed a standard company Incident Report form. The Complainant’s Incident Report contains the following passage describing his recollection of the events that occurred after he started checking passengers’ tickets on an inbound tram between Milltown and Cowper:
- “I came across a group of young guys age (sic) around 18-20 year approx. who had no valid ticket on board the tram. Asked them to get there (sic) details which they refused & told me to f*** off. I asked them to step off at Cowper as they were abusive & drunk. Few of them get off at Cowper & some of them run up to another door and we asked driver to hold at the stop, until they get out. They start abusing us, calling me racially (Paki bastard), go back to your country. They decided to walk on tracks towards Beechwood … We get off tram at Harcourt and same group passed by giving us abuse.”
Ms Jacqueline Brennan is employed by the Respondent as a Security and Revenue Protection Coordinator, in which role she manages a cohort of RPOs. She was tasked with investigating the complaint submitted by the member of public in connection with the alleged incident of 24 August 2015. She gave evidence in relation to the role of an RPO, and the extensive and ongoing conflict management training provided by the Respondent to RPOs. She emphasised that the focus of this training is on how to de-escalate and control situations at a local level but where this is not possible RPOs are trained to remove themselves from the situation in the interests of their own safety.
Ms Brennan wrote to the Complainant by letter dated 8 September 2015 (but not delivered to the Complainant until the following day) to inform him that she would be undertaking a formal investigation into the incident of 24 August 2015, the subject of a written complaint by a customer. She informed the Complainant that he would be invited to a meeting at which he could be accompanied by his trade union representative or other employee representative and that in advance of that meeting the Complainant and his representative could view relevant CCTV footage. Ms Brennan suspended the Complainant on full pay pending the outcome of the investigation “due to the seriousness of the alleged incident”.
Ms Brennan proceeded to interview each of the Complainant’s colleagues who were on duty with him on the evening of 24 August 2015. Ms Brennan conducted an interview on 19 September 2015 with the member of the public who made the complaint to the Respondent arising from the events of 24 August 2015. The following is an extract from the notes of the meeting that Ms Brennan had with the member of the public:
- “[Ms Brennan] asks complainant if he could take her through what happened in advance of, during and after the incident referred to in his complaint. Complainant explains that he was in possession of a return ticket but that he was travelling with 10-15 others, some of whom did not have tickets. He states that there was an inspector who was Chinese in appearance with another Irish ticket inspector who told the group to get off the tram as they did not have tickets. Complainant got off the tram but got back on at Milltown going towards Cowper as he saw a girl he recognised from college on the tram. The inspector told him to get back off the tram. Complainant states that he was walking away from the tram when he noticed in the corner of his eye someone running towards him. As he turned around, an inspector punched him in the back of the head.
Jacqui asks if he had any prior interaction with the member of staff on the night. Complainant states that he hadn’t any prior interaction with the inspector and that it had been the Chinese inspector who had told the group to get off the tram originally. Complainant states that another staff member had told him that there were fights on the line but states that he (complainant) was not involved in this. Complainant and his friends not on the LUAS then, it was earlier in the day.
Jacqui asks in what direction he (complainant) was facing when he felt the punch to his head. Complainant states that he was walking away from the tram when he noticed in the corner of his eye someone running towards him. He (complainant) then walked the rest of the way into the city centre, with the same inspector calling him a bitch at each stop the whole way to Harcourt as he (complainant) walked.”
At the meeting of 25 September 2015, the Complainant was accompanied by his Shop Steward, Mr Garry O’Beirne. Mr O’Beirne viewed the CCTV footage of the incident of 24 August 2015, prior to the commencement of the meeting. The notes of this meeting were subsequently agreed between Ms Brennan and the Complainant. They record that when Ms Brennan asked the Complainant about the allegation that he had punched a member of the public in the head, the Complainant replied “No, I have absolutely no recollection of punching anybody.” Nevertheless, his Shop Steward – commenting on the CCTV footage – is recorded as stating: “You can see the punch being thrown but it never landed, it was a wild swipe.”
Ms Brennan issued the outcome letter to the Complainant on 21 October 2015 in which she advised the Complainant as follows:
“This investigation has now been completed and it is my decision that having considered the available evidence that the matter should now progress to a disciplinary hearing on the following gross misconduct charge:
That on the 24thAugust 2015 at approximately 22:00hrs at Cowper Luas stop you engaged in actual or threatened physical violence against a Luas passenger.”
A disciplinary meeting was held on 2 November 2015. It was conducted by Mr Brian Murphy, Security and Revenue Protection Coordinator. Mr Murphy’s letter notifying the Complainant of the date and time of the disciplinary meeting also advised him that the CCTV footage would be available to him again prior to the meeting should he and/or his representative wish to view it. The Complainant was again accompanied by Mr Garry O’Beirne, his Shop Steward at that meeting. Mr Murphy put it to the Complainant that the CCTV footage shows him “walking up behind the gentleman when he appears to be leaving the situation and you [the Complainant] appear to be swinging what appears to be a radio at him.” In response, the Complainant stated: “I did lift my arm up, I did not hit anyone which I learned following conflict training. I have no memory of hitting anyone. My hand did not touch him, I did not hit him.”
Mr Murphy’s evidence to the Court was that he found the CCTV footage compelling. Having viewed it, he concluded that on 24 August 2015 at approximately 22:00 hours at Cowper LUAS stop the Complainant had engaged in actual or threatened physical violence against a LUAS passenger. Although he considered possibly imposing a final written warning on the Complainant, on balance having considered the CCTV footage and the Incident Reports filed by the Complainant and his colleagues, Mr Murphy ultimately determined that the appropriate sanction in all the circumstances was summary dismissal.
The Complainant recounted his version of events for the Court. He said that on the evening in question, he and his colleagues had dealt with an unrelated issue in Milltown. They then proceeded to take the next inbound tram towards Cowper. There was a group of youths on that tram who did not have tickets. He proceeded to explain to them that he was required, therefore, to issue them with a Standard Fare Notice. Some of the youths made rude finger gestures to him while others pretended to be asleep or were drinking alcohol from cans. The Complainant then asked this group of youths to disembark at the next stop. In response, he was verbally abused and called a ‘Paki bastard’. The Complainant admitted he had raised his hand behind one of the youths but denied that he hit, threatened or verbally threatened him. He told the Court that he had felt threatened by the gang of youths and was stressed. He also told the Court that he had not instructed his union representative to concede at the investigation meeting that he had thrown a punch on the evening of 24 August 2015.
The Complainant appealed Mr Murphy’s decision to summarily dismiss him for gross misconduct. The appeal was conducted by Mr Carl Phillips, Operations and Performance Director, on 23 November 2015. The Complainant was once again represented by Mr O’Beirne at this meeting. Mr Philipps upheld the original disciplinary decision. He communicated his decision to the Complainant by letter dated 2 December 2015.
The Respondent’s Disciplinary Procedures provide for a second appeal. The Complainant chose to avail himself of the opportunity to appeal from Mr Phillips’ decision. The final appeal was conducted by Mr Gerry Madden, Managing Director, on 21 December 2015. Mr Madden also decided to uphold the decision to summarily dismiss the Complainant.
Neither Mr Phillips nor Mr Madden were proffered as witnesses before the Court.
Legal Submissions
Mr Dowling BL opened the following passage from Noonan J’s judgment inBank of Ireland v Reilly[2015] IEHC 241:
- 38. 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 - seeRoyal Bank of Scotland v. LindsayUKEAT/0506/09/DM.
39. I respectfully agree with the views expressed by Judge Linnane inAllied Irish Banks v. Purcell[2012] 23 ELR 189, where she commented (at p. 4):
- “Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 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 reasonably have 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, another quite reasonably take a different 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 the EAT or the court would have taken.”
- “Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:
Mr Doran BL submitted that the Court should find that the CCTV footage which the Respondents had relied on to justify its decision to dismiss his client is not ‘compelling’. He further submitted, that the Respondent’s decision to dismiss his client was not within the reasonable range of responses available to a reasonable employer as there had been a strong element of pre-judgement in the process arising from the early and protracted suspension of his client and the fact that his client was not informed of his accuser’s identity. Finally, he submitted that the decision to summarily dismiss his client was disproportionate as the Respondent, in arriving at that decision, had failed to take account of his client’s prior years of service, the stress he had been experiencing that day and the statements made by the Complainant’s colleagues, each of whom was also a long-standing and decent employee of the Respondent.
Discussion and Decision
The CCTV footage of the incident that occurred at the Cowper LUAS stop at approximately 10.00 p.m. on 24 August 2015 undoubtedly shows the Complainant acting in a manner that is totally at odds with the conflict management training that he fully accepts he received periodically throughout the course of his employment with the Respondent. Instead of stepping away from a situation of potential conflict in order to de-escalate the situation, as he had been trained to do, the Complainant became aggressive and at the very least attempted to assault a member of the travelling public. It is not clear from CCTV footage whether or not the Complainant’s fist or the object he held in his clenched fist, connected with the member of the public and it is not for this Court to make any findings of fact in this regard. However, the Court does find that it was reasonable for the Respondent to conclude that the Complainant – by engaging in actual or threatened physical violence against a Luas passenger -seriously misconducted himself such as to warrant the initiation of a disciplinary process. The Court accepts that the Complainant had been taunted by a number of LUAS passengers on the evening in question and may have been the victim of racial abuse. Nevertheless, he was employed in a responsible, customer-facing role. He had accrued considerable experience of working in an undoubtedly, at times, difficult and challenging job. However, he had been provided with regular and comprehensive conflict management training in order to equip him to deal with difficult situations and customers.
The disciplinary process which the Complainant underwent was, in the Court’s view, conducted substantially in accordance with the procedures collectively agreed between SIPTU and the Respondent and in accordance with fair procedures and natural justice. The Complainant knew at all times what the allegation against him was; he was provided with copies of the Incident Reports submitted by his colleagues and the notes of the interviews with them conducted by Ms Brennan at the investigatory stage; he was given multiple opportunities to view the CCTV footage; there is no suggestion of any animus or bias against him on the part of Ms Brennan or Mr Murphy; and he was afforded the right to be represented by his trade union representative at all stages of the process.
On the basis of the foregoing, the Court finds that the complaint of unfair dismissal contrary to the Act of 1977 is not well-founded. Accordingly, the decision of the Adjudication Officer is upheld.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
02 August 2018______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.