SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
(REPRESENTED BY MS. MARY PAUL GUINNESS BL
INSTRUCTED BY S BARTELS & CO)
- AND -
TRANSDEV IRELAND LIMITED
(REPRESENTED BY MR. MARDUS DOWLING BL
INSTRUCTED BY BYRNE WALLACE)
Chairman: Mr Haugh
Employer Member: Ms Doyle
Worker Member: Mr Hall
1. Appeal Of Adjudication Officer Decision No. ADJ-00012790.
2. The Worker appealedthe Decision of the Adjudication Officer in accordance with Section 8A of the Unfair Dismissals Act, 1977 to 2015 on 28 September 2018. A Labour Court hearing took place on 9 may 2019. The following is the Determination of the Court:
This is appeal by Mr Michael Caplis (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00012790/CA-0001685-001, dated 20 August 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Complainant’s Notice of appeal was received by the Court on 28 September 2018. The Court heard the appeal in Dublin on 9 May 2019. Two witnesses were called on behalf of Transdev Ireland Limited (‘the Respondent’): Mr Paul Balmer and Mr Declan McEvoy, both of whom are employed as Driver Team Leaders by the Respondent. Mr Balmer conducted the investigation stage, and Mr McEvoy the disciplinary stage, of the process that culminated in the decision to dismiss the Complainant. The Complainant gave evidence and also called Mr Richard McCarthy, his SIPTU shop steward, as a witness.
There is very little, if any, dispute between the Parties in relation to the key facts that are relevant to the determination of the within appeal. Those facts can, therefore, be recited succinctly as follows.
The Respondent operates the Luas light rail network in the Dublin area. The Complainant was employed by the Respondent (or its predecessor) as a Luas tram driver from May 2005 until his summary dismissal on 17 August 2017. As a Luas tram driver, the Complainant was categorised as a “safety critical worker” within the meaning of the Railway Safety Act 2005. In order to mitigate against the risk that arises from driver fatigue, the Respondent – in consultation with the SIPTU Trade Union – has put in place a roster system for drivers that provides for adequate rest period. Luas drivers are also contractually prohibited from engaging in outside employment during their rest periods without the express permission of the Respondent. During his employment with the Respondent, the Complainant never sought or received permission to engage in additional outside employment.
In April 2017, a member of the public complained that he/she had seen the Complainant driving a taxi on a regular basis on Friday and Saturday nights. The Respondent retained a private investigator who observed the Complainant driving a taxi and receiving fares on 27 and 28 May 2017. The Complainant was advised by Mr Balmer, by letter dated 31 May 2017, that he had allegedly been observed operating a taxi outside of his rostered hours. Mr Balmer subsequently provided the Complainant with a copy of the private investigator’s reports, photographs, the Respondent’s disciplinary policy and the original complaint submitted by the member of the public (with names redacted). The Complainant was also advised he would have an opportunity to view the CCTV footage and listen to the audio recording made by the private investigator in advance of the investigatory meeting originally scheduled for 16 June 2017 but which in fact took place on 21 June 2017.
The Complainant did not deny having driven a taxi on the nights identified by the Respondent. He admitted that he had driven his wife’s taxi in a very limited way and from time to time in order to assist her following her diagnosis of a serious medical condition in or about February 2017. He told Mr Balmer that he did not personally retain any fares as that was income which was declared by his wife to Revenue. He also stated that he had kept his PSV licence up to date in order to have the option of reverting to driving a taxi following his retirement from the Respondent. He also continued to be a named driver on his wife’s taxi insurance policy.
In a follow up email to Mr Balmer, after the investigation meeting, Mr Richard McCarthy stated:
- “As Michael was only backfilling occasional hours at his wife’s behest on an occasional and infrequent basis, he was of the belief that he wasn’t doing anything wrong or engaging in any forbidden activity. As stated at our meeting, Michael made no attempt to deceive the Company or conceal his identity on the occasions that he was assisting his wife.”
- “Having carefully considered all the evidence, I find that a disciplinary hearing in relation to the matter is warranted. The charge for the purpose of the hearing will be as follows
‘That you have been engaging in Other Paid Employment without permission from the company by driving a TAXI with the Registration number 07-WM-2585
For the avoidance of doubt, this is deemed to be a Gross Misconduct charge.”
A disciplinary hearing into the above charge took place on 31 July 2017. It was conducted by Mr Declan McEvoy. Again, the Complainant admitted that he had occasionally driven his wife’s taxi in the circumstances outlined in Mr McCarthy’s email to Mr Balmer but denied that he had ever infringed the daily or weekly rest break requirements specified in the Organisation of Working Time Act 1997 in so doing although he had kept no records of the dates and times on which he had driven the taxi. Mr McEvoy issued his written decision by letter dated 17 August 2017 in which he informed the Complainant that he “found the charge proven” and had decided, as a consequence, that his employment with the Respondent would be terminated with immediate effect. The Complainant was advised of his right to appeal and the time limit for so doing.
The Complainant exercised his right of appeal. The appeal was considered by Mr Seamus Egan, Performance Director. The Complainant was represented at that appeal by a full-time SIPTU official and by his shop steward. Both written and oral submissions were received by Mr Egan who ultimately rejected the appeal by letter dated 23 November 2017. As per the Respondent’s procedures as agreed with SIPTU, the Complainant had a right to a further appeal to the Respondent’s managing director, Mr Peter Lunden-Welden. The Complainant was again represented by a full-time SIPTU official and by his shop steward at this further appeal on December 14, 2017. By letter dated 19 December 2017, Mr Lunden-Welden notified the Complainant that he was upholding the original decision to summarily dismiss the Complainant (with effect from 17 August 2017).
The Parties’ Submissions
Mr Dowling BL referred the Court to dicta of Noonan J inBank of Ireland v Reilly IEHC 241 expressing agreement with the approach taken by Judge Linnane of the Circuit Court inAllied Irish Banks v Purcell 23 ELR who in turn had endorsed the ‘band of reasonableness’ test Lord Denning MR said should be applied by tribunals and courts called on to adjudicate in unfair dismissal claims:
- “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.”British Leyland UK ltd v Swift IRLR 91, at page 93.
Counsel submits that there was “no credible basis” on which it could be suggested that dismissal was outside the range of reasonable responses open to the Respondent in dealing with the Complainant’s admitted misconduct in this case. He further submits that the decision to dismiss the Complainant was a proportionate sanction in all the circumstances and was made at the conclusion of a disciplinary process conducted in accordance with procedures outlined in a policy collectively agreed between the Respondent and SIPTU.
Ms Guinness BL, for the Complainant, submits that the decision to summarily dismiss him was disproportionate having regard to his relatively long service with the Respondent and his prior unblemished record. She asked the Court to take into account the Complainant’s honest belief that he, at no time, considered that helping his wife out from to time equated to engaging in paid, external employment. She also submits that the Respondent failed to give serious consideration to alternative sanctions other than summary dismissal at either the dismissal or the appeal stages. She is seeking the reinstatement of the Complainant.
Discussion and Decision
The Court does not find any fault with the procedures adopted by the Respondent at any stage of the disciplinary process applied in the Complainant’s case. The Complainant was afforded the benefits of natural justice and fair procedures throughout the process.
The Court, however, does not accept that summary dismissal was a reasonable response open to a reasonable employer in the circumstances of this case. The Complainant admitted his conduct from the outset of the investigation. He offered an explanation for that conduct and outlined the reasons for his – admittedly erroneous - belief that driving his wife’s taxi from to time at the end of her shift did not equate to double-jobbing. No actual non-compliance with the daily and weekly rest break provisions of the Organisation of Working Time Act 1997 was proven to have resulted from the Complainant’s action. The Complainant had over twelve years’ service with the Respondent as of the date of his dismissal and had no disciplinary issues in that time.
In all the circumstances, and, having very carefully considered the evidence of the witnesses and the submissions opened by counsel on both sides, the Court finds that the Complainant should be re-engaged as a Luas tram driver, with effect from the date of this Determination. The period from the date of his purported dismissal on 17 August 2017 to the date of his re-engagement is to be regarded as a period of unpaid suspension.
The Court so determines.
Signed on behalf of the Labour Court
1 July 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.