UDD2628

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No.: ADJ-00045088 (CA-00055843-001)

BACKGROUND:

The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 19 November 2024 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015.

A Labour Court hearing took place on 16 June 2026.

The following is the Decision of the Court.

DECISION:

Appeal Details

1. This is an appeal by Mr Peter Gleeson against a Decision of an Adjudication Officer (ADJ-00045088/CA-00055843-001) made under the Unfair Dismissals Act, 1977 to 2015 (the UD Act) in a complaint against Go Ahead Ireland Bus Limited. The Adjudication Officer’s decision is dated 13 November 2024. The Adjudication Officer found that the complaint was not well founded.
2. This appeal is linked with appeal decision no. MND266, an appeal under the Minimum Notice and Terms of Employment Act, 1973 to 2005.
3. For ease, the parties are referred to in the same way as at first instance, so Mr Gleeson is referred to as “the Complainant” and Go Ahead Ireland Bus Limited as “the Respondent”.
4. At the hearing of the Court on 16 June 2026 in Dublin, the Complainant was represented by Mr Vivian Cullen of SIPTU. The Respondent was represented by Mr David Horgan of Stratis Consulting. The Court received written submissions from both parties in advance of the hearing and heard oral submissions from both parties at the hearing. Mr Keith McDonnell, Operations Manager, and Mr William Cullen, Regional Operations Manager gave evidence under oath on behalf of the Respondent, and the Complainant also gave evidence under oath.

Submission of the Respondent

5. The Respondent operates buses under contract to the National Transport Authority since September 2018 and operates 30 routes in total, 23 Dublin Metropolitan and 5 Dublin Commuter. The Complainant was a bus driver with the Respondent between 4 November 2019 and 12 December 2022 when he was summarily dismissed.
6. The Respondent has obligations to ensure the safety of its employees, passengers and members of the public and discharges those responsibilities by applying a wide range of safety measures. The Respondent has a collective agreement with SIPTU in respect of the Bus Driver Grade. Included in that agreement is a clause in respect of health and safety which provides: “It is a condition of employment that employees always adhere strictly to the company’s safety requirements. A failure to do so may render the employee liable to formal action up to and including dismissal”.
7. The Respondent has a mobile phone policy which does not permit employees to use mobile phones while driving buses due to the additional significant safety risks caused by such activity. The Respondent submitted that, according to the Road Safety Authority, a driver is four times more likely to have a crash when they are on a mobile phone.
8. The Respondent submits that the Complainant was familiar with the Respondent's Performance and Conduct policy and procedures and that the Complainant’s contract of employment expressly states: “The details, rules and disciplinary sanctions contained within the policy form part of your contract of employment as if they were contained within this document. The disciplinary sanctions contained within the policy form part of your contract of employment”. The Respondent’s Performance and Conduct Guidelines state: “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:… (m) Use of mobile phones or ear pieces (and personal audio equipment) whilst driving all types of Company vehicle or using any vehicle on Company business”. The induction given to all bus drivers, including the Complainant, prohibits the use of mobile phones in the driver's cab, except in an emergency or if authorised by controllers in the event of a breakdown.
9. On 24 November 2022, in or around Prosperous, Co Kildare, an incident took place involving an in-passenger service bus driven by the Complainant and a van, which resulted in damage to the mirror of the bus. The post incident review included review of CCTV footage from the bus which resulted in the Complainant being informed, by letter dated 1 December 2022 from an Assistant Operations Manager, that there was to be an investigation into an allegation that while in control of the vehicle the Complainant was using his mobile phone. The Complainant was advised of the seriousness of the allegation and that he was to be relieved of his duties pending completion of the investigation.
10. On 6 December 2022, an investigation meeting took place, chaired by the Assistant Operations Manager, at which the Complainant was represented by his SIPTU shop steward. The Complainant was afforded the opportunity, at the meeting, to respond to the allegations and to review the CCTV footage.
11. On 8 December 2022 the Complainant was invited, by letter from Mr McDonnell, to attend a disciplinary meeting on 12 December 2022 to formally discuss the allegation that he had being using a mobile device while in control of a company vehicle, which invitation letter advised that “the Company reserves the right of Summary Dismissal in cases of Gross Misconduct, Gross Negligence, or a fundamental breach of contract”.
12. A disciplinary hearing took place at which the Complainant was represented by his SIPTU shop steward where it was put to the Complainant that he was using his mobile phone prior to the van related incident. The Complainant admitted to using his mobile phone while driving the bus, stating he used his phone “To check the time for Traceit” [a reporting tool for risk events relating to bus operations] and “to talk to the engineer”.
13. The Complainant was summarily dismissed on 12 December 2022 by email from Mr McDonnell, for gross misconduct for using a mobile phone while in control of a company vehicle. The Complainant was advised of his right of appeal and exercised that right. Mr William Cullen conducted an appeal hearing on 6 January 2023 where the Complainant was represented by Mr Vivian Cullen of SIPTU. At the appeal hearing the Complainant said that he had used his phone as an alarm to remind him to take his medication. By letter, dated 13 January 2023 the Complainant was advised that he was unsuccessful in his appeal and given reasons including that he used his mobile phone “approximately 45 seconds before the incident occurred”.
14. The Respondent notes that it is obliged to ensure its employees’ health and safety pursuant to the Safety, Health and Welfare at Work Act 2005 and, in that regard, has policies in place, including the prohibition on the use of mobile phones while driving. The Respondent points out that section 3(1) of the Road Traffic Act 2006 prohibits the use of mobile phones while in control of a motor vehicle and that any accident involving a bus could have the most serious consequences.
15. The Respondent cites The Governor and Company of the Bank of Ireland v Reilly [2015] IEHC 241 (Bank of Ireland v Reilly) in pointing out that “there is no credible basis upon which it can be alleged that dismissal was outside the range of reasonable responses open to the Respondent in this [the Complainant’s] case”. The Respondent considers that it fully complied with Statutory Instrument No 146 of 2000 Industrial Relations Act (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 (SI 146/2000) where the Complainant was given the benefit of the Respondent’s disciplinary procedures. The Respondent submits that there were substantial grounds justifying the decision to dismiss the Complainant, the decision to dismiss was proportionate, and the process adopted was reasonable in all of the circumstances.
16. In respect of any objection to the use of CCTV footage in the disciplinary process, the Respondent submits that there was a lawful basis for processing the Complainant’s data for the purposes for which it was collected and considers that the Respondent’s CCTV policy allows the use of CCTV footage for incident investigations and investigations under the Respondent’s Performance and Conduct Guidelines. The Respondent submits that the CCTV policy was known to the Complainant, and the Respondent maintains that it had a legitimate reason for processing the data.
17. Without prejudice to those submissions, the Respondent contends that if the decision to dismiss was unfair, the Complainant contributed 100% to his own dismissal by using his mobile phone while in charge of a motor vehicle and relies on Go Ahead Transport Services Limited v Thomas Gifford UDD2225 in support of that proposition.
18. The Respondent’s closing submissions were that the use of a mobile phone when driving is prohibited by the Road Traffic Acts and that there are very serious consequences which can result if using a mobile phone while driving. The Complainant’s contract of employment and the Respondent’s policies could not have been clearer regarding the prohibition on mobile phone use while driving. The decision to dismiss was well within the range of reasonable responses open to an employer. It said that the conduct was admitted and evidenced on CCTV. Fair procedures were applied including that the Complainant was aware of what he was alleged to have done, there was an investigation, a separate disciplinary process and an independent appeal, the Complainant was represented throughout, was offered the opportunity to view the CCTV and given fair and impartial hearings. The Respondent said the process was compliant with SI 146/2000. The Respondent said that while there is no agreement with SIPTU regarding CCTV, the policy regarding its use is known to employees and it is known that CCTV is used in investigations to ensure all evidence is available. The Respondent’s use of CCTV was compliant with its policy and with data protection law. The Respondent’s position is that the dismissal was fair and that fair procedures were applied.

Submission of the Complainant

19. The Complainant was employed by the Respondent as a bus driver from 4 November 2019 until his summary dismissal on 12 December 2022.
20. The Complainant was unfairly dismissed following a procedurally flawed process involving the improper use of CCTV, where what the Complainant did could not meet the definition of gross misconduct and where the sanction was disproportionate. The Complainant said that the zero tolerance policy of the Respondent indicated pre-judgement at every stage of the process.
21. Following an incident, which the Complainant reported to the Respondent and in respect of which he was not at fault, the Complainant received a letter from the Respondent’s Assistant Operations Manager, dated 1 December 2022, in which it was alleged that while in control of a vehicle on 24 November 2022 the Complainant was using a mobile phone. The Complainant submits that as the Assistant Operations Manager formulated the allegations against him and was the lead investigator into those allegations that this breached SI 146/2000 and the principle of nemo iudex in causa sua, that one not be a judge in one’s own cause. The involvement of the Assistant Operations Manager was highly prejudicial and contaminated the Complainant’s right to a fair and impartial investigation. Further, the Respondent breached data protection principles in the use of CCTV footage during the investigation and disciplinary process where said usage and the CCTV policy had not been agreed with the unions.
22. The investigation process led to a disciplinary process in which the Respondent relied upon the investigation reports, the incident report, and CCTV findings. The formal disciplinary hearing resulted in a finding that the Complainant’s actions on the day constituted gross misconduct, and he was summarily dismissed on 12 December 2022. The disciplinary sanction was appealed but the sanction was upheld. The Complainant’s position is that CCTV was instrumental in his dismissal and that at the time there was no agreement with the trade union in relation to a comprehensive CCTV policy and its usage for investigation/disciplinary purposes. The Complainant’s contention is that his action in respect of the mobile phone was not gross misconduct, the sanction was too harsh, his GDPR rights were breached and there was a breach of natural justice and fair procedures. The Complainant disputes the Respondent’s use of CCTV footage in the disciplinary process citing Doolin v The Data Protection Commissioner [2020] IEHC 90.
23. The Complainant refuted the allegation of gross misconduct which only relates 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 sort of serious category” [DHL Express Ltd v Michael Coughlan UDD1738].
24. In reliance on an Employment Tribunal case, An Employee v An Employer UD2196/2011, the Complainant submits that the onus is on the Respondent to not only show that there were substantial grounds justifying dismissal but also that the Respondent followed fair and proper procedures before the dismissal. The Complainant relied on the general principles set out in SI 146/2000 which provides: “The essential elements of any procedure for dealing with disciplinary issues are that they be rational and fair” 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 or circumstances”.
25. The Complainant submits that the Respondent did not give him access to a fair and impartial process, therefore negating the premise of fair procedures and natural justice provided for in SI 146/2000 and that he was denied a measured and proportionate response. The Complainant submits that a flawed process in this case led to a flawed outcome, that the Respondent is “not free from blame and capriciousness in this case”,and that the Complainant was unfairly dismissed. The Complainant submits that there was not sufficient independence/impartiality between those deciding on the findings of the investigation and their biased recommendation for a disciplinary process, which offends against the principle/maxim that “not only must justice be done but it must be seen to be done”.
26. The Complainant notes that it is not for the Labour Court to put themselves in the place of the employer in the case but rather its “prerogative is to determine whether the actions of the employer fall within the range of actions which a reasonable employer would take in the circumstances”. The Complainant cites: Union of Construction Allied Trades and Technicians v Brane [sic] [1981] IRLR 224; Derryquin Hotels Ltd v Savage [1981] IRLR 91; Bunyan v United Dominions Trust [1982] ILRM 404 and Bank of Ireland v Reilly in contending that the Respondent’s actions in dismissing the Complainant were not reasonable.
27. The Complainant considers the sanction of dismissal to be disproportionate and in that regard cites: An Employer v A Worker UDD237; Noritake (Irl) Ltd v Kenna (UD 88/1983); Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 and Bank of Ireland v Reilly.
28. The Complainant notes that the “broken bond of trust” is often used by employers to justify a dismissal but maintains that the concept applies to both parties in an employment relationship and that it can equally apply to an employee’s view of their employer (Malik and Mahmud v Bank of Credit and Commerce International SA [1997] UKHL 23 cited).
29. In conclusion, the Complainant used his phone alarm to remind him to take medication for a medical condition. He did not receive a fair and impartial process, rather a fait accompli. No lesser sanction was considered by the Respondent. The zero tolerance policy on mobile phone usage relied upon by the Respondent resulted in an automatic and punitive dismissal. Imposing a predetermined sanction, disregarding extenuating circumstances, negates the fact that disciplinary sanctions are remedial in nature and forbids management from exercising discretion or changing punishment to fit circumstances subjectively. The investigation and disciplinary process was “fruit from the poison tree” and highly prejudicial, tainted by confirmation bias. The conclusion and sanction of dismissal is unsafe.
30. Following the termination of his employment with the Respondent, the Complainant was unemployed until he took up employment in February 2024 for one month and thereafter was sick and unavailable for work until September 2024. He was employed as a bus driver from September 2024 to February 2026.
31. The Complainant’s closing submissions were that he was unfairly dismissed and was not afforded a fair and impartial investigation. He said that the investigation was biased with the same person being accuser, prosecutor and judge, which contaminated the entire process. The Complainant was not afforded fair procedures or natural justice. The Complainant refutes that use of the mobile phone was gross misconduct when one considers a hierarchy of transgressions as set out in the Lennon v Bredin case. The sanction was disproportionate and the zero tolerance policy was pre-determinative of guilt and sanction and the Respondent’s evidence that not all employees were dismissed for what the Complainant was alleged to have done “reeks of double standards”. There was “anchor bias” on the zero tolerance policy and no regard was given to context or extenuating circumstances which, in the Complainant’s case, included that the mobile phone was being used as an alarm for medication.

Summary of the Evidence of the Respondent

Evidence of Mr Keith O’Donnell, Operations Manager of the Respondent

32. Mr O’Donnell (the witness) gave evidence under oath in respect of the disciplinary process which led to the termination of the Complainant’s employment. He is the Respondent’s Operations Manager and working with the Respondent for seven years, with responsibility for running the day-to-day operations of the business. He was the disciplinary officer in the Complainant’s case.
33. The witness said that the investigation outcome was sent to HR and thereafter HR sent him the file in order to commence the disciplinary process. The witness gave evidence that he was provided with the notes of the investigation meeting, company policy on mobile phones, and the CCTV footage which he considered along with the disciplinary policy and guidelines. The purpose of the process was to investigate the alleged mobile phone use by the Complainant. Evidence was given that the Complainant was represented by his union at the disciplinary hearing on 12 December 2022 (notice of which had been given in writing in advance to the Complainant). The witness said that the Complainant accepted that he was using his mobile phone whilst driving the bus. The witness said that when he asked the Complainant for an explanation for the mobile phone use the Complainant said that he couldn’t remember and that he had tried to contact the office regarding the safety incident, but the witness said that the mobile phone use had been before the safety incident.
34. Mr O’Donnell said that he viewed the CCTV footage and saw the phone in the Complainant’s hand for a few seconds while the bus was moving. Mr O’Donnell’s evidence was that the prohibition on mobile phone use was given in induction and training and was set out in the Respondent’s Performance and Conduct Guidelines. The witness’s evidence was that the rules were necessary to avoid accidents in what was a dangerous industry. His evidence was that use of a mobile phone while in control of a company vehicle was categorised as gross misconduct.
35. Mr O’Donnell said that he considered the evidence before reaching a conclusion. He had regard to the seriousness of the issue and the admissions made by the Complainant during the disciplinary hearing. He said that the investigation notes were key. He had regard to the breach of the Road Traffic Acts, the policy breach and the safety risks. He said that whilst there was a zero tolerance policy the decision in this disciplinary rested with him. He considered a final written warning as an alternative to dismissal but ultimately, given the safety risk involved, made a decision to dismiss the Complainant.
36. Mr O’Donnell’s evidence was that it was a fair process, where the Complainant knew what he was accused of, there had been an investigation and a disciplinary hearing before a decision was reached. He said the disciplinary hearing was short, that he viewed the CCTV and took time to consider his decision before issuing the letter of dismissal after 5pm on 12 December 2022.
37. In cross-examination, the witness said that he had not received an investigation report but had received the notes of the investigation meeting from HR who had referred the matter to him for disciplinary after the investigation concluded. The witness said that he considered mobile phone use while driving to be gross misconduct because it was set out as such in the Respondent's policy. The witness confirmed that the policy allowed for discretion but that he had considered the health and safety risk was too high. The witness accepted, when it was put to him, that the purpose of disciplinary is remedial in nature, to help people understand and learn from their mistakes. He said that the decision to dismiss was a difficult decision for him to make but that the incident was too high risk to justify giving the Complainant a second chance.
38. In answer to questions from the Court, the witness said that no extenuating circumstances had been put to him by the Complainant. He said that the Complainant had not recalled the incident and said that no mention of a medication alarm had been made by the Complainant. The witness, when asked when the Complainant was aware that the matter was a gross misconduct issue, identified that the potential for it to be gross misconduct was notified to the Complainant in the investigation stage and the invitation to the disciplinary hearing but that it was his decision (as disciplinary officer) that the Complainant’s actions constituted gross misconduct. Mr O’Donnell said that the entitlement to use CCTV in disciplinary investigations was set out clearly in the Respondent’s CCTV policy.

Evidence of Mr William Cullen, Regional Operations Manager of the Respondent

39. Mr Cullen (the witness) gave evidence under oath in respect of the appeal process undertaken by the Respondent.
40. Mr Cullen said that he had worked for 30 years in the industry, starting as a driver. He had joined the Respondent in 2019 working his way up from Assistant Operations Manager to Operations Manager Dublin, to his current post as Regional Operations Manager. He had experience in handling disciplinary appeals for the Respondent and had not had any previous involvement in the Complainant’s case so was an appropriate person to handle the appeal.
41. Mr Cullen said that he received the investigation notes, the disciplinary hearing notes, the disciplinary outcome and the relevant policies and guidelines to consider. He outlined that the appeal had raised a number of grounds including that the investigation stage was flawed because the Assistant Operations Manager had delivered both the suspension and investigation correspondence. The issue of CCTV use was also a ground and the witness said that the union does not agree with the CCTV Policy. The witness confirmed that he viewed the CCTV footage and saw the Complainant using his mobile phone for about six seconds, 45 seconds before the van incident.
42. The witness said that the Complainant’s representative had said that the Complainant was using his mobile phone as an alarm to remind him to take his medication. The witness said that he found it odd that it was raised on appeal as different reasons had been given previously. The witness said that the inconsistency weighed heavily on him. When asked if the proximity in time of the mobile phone use with the accident with the van was a factor for him, he said that he viewed the phone as a distraction.
43. The witness read sections from the CCTV policy where he identified that CCTV footage could be used where there were reports or allegations of safety critical issues, where there is a breach of health and safety and in investigation and disciplinary contexts. He said that CCTV footage is used to defend drivers at times. The witness said that drivers are aware of the CCTV policy from day one, that the policy is handed out, that the Complainant signed to say he had received it, and that there were signs on the buses that there was CCTV in use.
44. Mr Cullen said that he was free to overturn the decision to dismiss and that he considered the issues for a long time, over seven days.
45. In cross-examination, the witness was shown the letter of suspension and it was put to him that the Assistant Operations Manager formulated the allegations and then conducted the investigation and that “you’ve no problem with the same person being the accuser and the investigator?” In response, the witness said that he did not see a flaw in the process in terms of the role of the Assistant Operations Manager. He considered that the process applied was fair and that he did not see any unfair treatment. The witness accepted that there was not a collective bargaining agreement in respect of the use of CCTV and said there were strict rules as to its use. He said his preference was not to rely on CCTV where possible but that it was necessary in this case. The witness confirmed, by reference to his letter confirming the outcome of the disciplinary appeal, that mobile phones should not be used and that such use was gross misconduct. The witness said that he did not downgrade the sanction from dismissal due to the seriousness of the issue. When the zero tolerance aspect of the Mobile Phone Policy was put to the witness his response was that mobile phone use is not tolerated but that a breach does not guarantee dismissal, rather it guarantees a process.
46. In answer to questions from the Court the witness confirmed that other than the penalty being too harsh, the use of CCTV and the flawed investigation element, no other issues were raised in the appeal regarding the process undertaken. The witness said that the issue of whether the use of the mobile phone caused the subsequent accident was not considered by him. The witness gave an example of a particularly alarming situation where an employee, who had been found to have been in breach of the mobile phone policy, had his dismissal overturned on appeal by the witness, with a final written warning being substituted.

Evidence of the Complainant

47. The Complainant gave evidence under oath.
48. In respect of the incident of 24 November 2022 the Complainant said that he was driving the first bus from Edenderry to Dublin and in Prosperous there was an incident where a van drove towards him and hit the mirror of the bus. The Complainant said that he reported the incident. He said there was a further incident that day involving a blow out near Enfield. The Complainant said that he did not recall using his mobile phone on the day, and also said that he used the phone for a couple of seconds when the alarm went off. The Complainant confirmed that the Assistant Operations Manager handed him the letter of suspension and was the lead investigator. The Complainant did not recall receiving the investigation outcome but said he may have received it by email. The Complainant said that he was suspended and then dismissed. He thought he deserved a second chance, that he had been working with the Respondent for three years and was never late or absent. He thought the penalty was too harsh. He said that Mr Cullen, who handled the appeal, had said to the Complainant that when he was holding the phone he was looking straight ahead. [The Court notes that this was not put to Mr Cullen in cross-examination.]
49. In cross-examination the Complainant confirmed that he received the induction pack including the health and safety and mobile phone policy, saying he “just pressed the button”. The Complainant confirmed that it was a contravention of the Road Traffic Acts to use a mobile phone when driving. The Complainant accepted that holding a mobile phone for six seconds while driving could be catastrophic. The Complainant said he was not aware that using a mobile phone while driving was gross misconduct. The Complainant accepted that he had been offered the opportunity to view the CCTV footage during the process but that SIPTU, on his behalf, declined to view it. In response to it being put to him that he had accepted at the disciplinary stage that he used the mobile phone the Complainant referenced using the alarm. When it was put to him that he had only raised the alarm at the appeal stage he said he was “nearly sure I said it earlier”. The Complainant did not recall the appeal hearing being the first time he mentioned the alarm. He said that he “struggled to recall the version of events”. He accepted that he could not have been reporting the van incident at the time he was seen using the mobile phone as that incident had not yet occurred. The Complainant confirmed receiving letters notifying him of investigation and disciplinary meetings. The Complainant said he would not say the process was fair. He said that he used the alarm to remind him to take medication and had to turn it off. The Complainant accepted that if he was stopped by the Gardaí he would receive points on his licence for the offence of using a mobile phone when driving but said that “he wouldn’t be sacked”.
50. In answer to questions from the Court the Complainant said that he took medication three times daily, once with food, once a couple of hours after food. He said that he started work at 5.25am and finished at 2.30pm. He said that he has to take medicine at 8am and set the alarm for 5.45am to remind him to take the 8am tablet. He confirmed that on his account the alarm would go off twice during the working day and said that he had not told his employer of the need to take medication three times daily, nor of the need to have an alarm to remind him. The Complainant said that he thought his service with the Respondent were extenuating circumstances. The Complainant confirmed that not everyone found using a mobile phone while driving was dismissed by the Respondent. He was not aware of the reasons why some were not “sacked” but knew some were not. The Complainant said that he did not look at the mobile phone, that he just picked it up to turn off the alarm and he saw a distinction between the two as he was still looking straight ahead while he had the phone in his hand.
51. Since the termination of his employment with the Respondent the Complainant gave evidence that he applied to approximately 10 companies in the Mullingar area but was not successful in his applications.

Relevant Legislation

52. Section 6(1) of the UD Act provides:

"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."

53. Section 6(4) of the UD Act provides:

"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:…

(b)              the conduct of the employee…"

54. Section 6(7) of the UD Act provides:

"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."

Deliberations

55. The burden of proof rests with the Respondent to show that there were substantial grounds justifying the Complainant’s dismissal and that it resulted wholly or mainly from one of the matters specified in section 6(4) of the UD Acts.
56. In Hennessy v Read & Write Shop Ltd UD192/1978, the Employment Appeals Tribunal (the EAT) held that:

“In deciding whether or not the dismissal of the claimant was unfair we apply a test of reasonableness to:

1. The nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and
2. The conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.”

57. It is settled law that it is not for this Court, in considering the fairness or otherwise of the dismissal, to substitute its own view for that of the Respondent, rather the Court’s role is to determine whether the decision to dismiss is within the band of reasonable responses open to the Respondent.

58. The Circuit Court, in Allied Irish Banks v Purcell [2012] 23 ELR 189, said: “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.”

59. The Respondent relies on what it deemed to be gross misconduct on the part of the Complainant to justify the dismissal. The conduct in question was the use of a mobile phone, by the Complainant, while driving a bus with passengers, in breach of the Respondent’s mobile phone policy, and its Performance and Conduct Guidelines.

60. This Court, in DHL Express (Ireland) Ltd v Michael Coughlan UDD1738, notes that the established jurisprudence in relation to dismissal law in this jurisdiction, takes a very restricted view of what constitutes gross misconduct justifying summary dismissal. In that case the Court cites, as evidence of this jurisprudence, an EAT decision of Lennon v Bredin M160/1978 (reproduced at page 315 of Madden and Kerr Unfair Dismissals Cases and Commentary (IBEC 1996)). In that case the Tribunal stated: “Section 8 of the Minimum Notice and Terms of Employment Act, 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held that this exemption applies only in 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 sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have said so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping etc. They did not do so.”

61. In O’Riordan v Great Southern Hotels UD 1469/2003 the EAT held that: “In cases of gross misconduct the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing.”

62. It is for the Court to consider whether it was reasonable for the Respondent to conclude that mobile phone use while driving was gross misconduct and whether the Respondent had a reasonable belief that the Complainant had engaged in mobile phone use while driving. It was not disputed that use of a mobile phone while driving is an offence under the Road Traffic Acts. It was not meaningfully disputed that such mobile phone use was also expressly prohibited by the Respondent in its mobile phone policy on grounds of safety. In that policy it notes: “The company has a zero tolerance approach regarding the use of mobile phones (including ear pieces even if these are not being used) and other electronic mobile devices. 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 compromise safety.” The mobile phone policy identifies specific rules prohibiting use of mobile phones including inter alia at point 1: “Whilst driving a bus or [illegible] it is not permissible to use a mobile phone or hands-free device at any time. Should a colleague need to make a call a colleague must safely secure the vehicle, switch of the engine and exit the cab.” The policy goes on to say “Breach of any of these rules could result in a disciplinary investigation and where proven appropriate action will be taken. Note that a proven breach of points 1 and 2 will likely be considered gross misconduct.”

63. In the Respondent’s Performance and Conduct Guidelines the Respondent reserves the right “of summary dismissal in the cases of gross misconduct…” and provides as an example of gross misconduct “(m) Use of mobile phones or ear pieces (and personal audio equipment) whilst driving all types of company vehicle or using any vehicle whilst on Company business.”

64. The Respondent, citing Road Safety Authority statistics, submitted that a person using a mobile phone while driving is four times more likely to have an accident than a motorist not using a mobile phone. While the background to the statistics relied upon was not provided to the Court, neither were the statistics challenged by the Complainant, and it is self-evident that driving while using a mobile phone carries with it an increased risk of collision or road traffic incident. The Complainant accepted in evidence that the potential outcome of driving while using a mobile phone could be catastrophic.

65. The Complainant acknowledged receiving health and safety induction training, the slides for which noted the prohibition on mobile phone use, and he also confirmed that he was in receipt of the Respondent’s policies and handbook albeit he maintained he only pressed the button to indicate his receipt and that he was not aware that use of a mobile phone was considered gross misconduct by the Respondent. It is clear from the information provided to the Court that the Respondent took its responsibility seriously with regard to health and safety and the prohibition on mobile phone use while driving was part of that. The prohibition on such mobile phone use was communicated in respect of the risk to safety of passengers, employees and members of the public, which risk is accepted by the Court as real.

66. The fact that an employer includes an offence in a list of offences constituting gross misconduct will not necessarily be conclusive that such an offence amounts to gross misconduct and that the commission of such an offence would justify summary dismissal.

67. In Bunyan v United Dominions Trust [1982] ILRM 404, relied on by the Complainant, the EAT held (in reliance on a decision of the UK EAT in NC Watling Co Ltd v Richardson [1978] IRLR 225) that: “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 Tribunal therefore does not decide the question whether or not, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

68. What the Court has to determine is whether or not the conclusions reached by the Respondent, including the decision to dismiss, were within the range of reasonable responses open to it having regard to all the circumstances.

69. In this case, given the risks involved with mobile phone use while driving or in control of a bus with passengers, where the Respondent’s entire business is bus passenger transport, and where the Respondent had consistently communicated how serious such an issue was, the Court is satisfied that the Respondent would be entitled to consider such conduct to constitute gross misconduct. That such mobile phone usage is otherwise prohibited by law is a further factor to which the Court has regard in reaching its conclusion in that regard.

70. Whether the summary dismissal of the Complainant is unfair arising from such misconduct requires consideration of the factors set out in section 6(7) of the UD Acts in respect of the conduct of the employer in relation to the dismissal and the application of fair procedures.

71. The Complainant maintained that the Respondent’s “zero tolerance policy” resulted in an automatic and punitive dismissal. The appropriateness of a zero tolerance policy in specific circumstances was accepted by the EAT in Byrne v Marks & Spencer (Ireland) Limited UD826/2013 and in Agnes Maranan v Beechfield Nursing Homes Limited UD961/2015. In this case, while “zero tolerance” is referenced in the mobile phone policy, the evidence before the Court was that dismissal was not automatic in respect of a breach of the mobile phone policy. The evidence was that mobile phone use would be treated as gross misconduct under the Performance and Conduct Guidelines and subject to a disciplinary process, the outcome of which may be summary dismissal. The Complainant’s own evidence was that other employees who breached the policy were not dismissed and the Respondent’s evidence was that, in particular circumstances, dismissal was not the outcome. The Court, based on the evidence before it, does not accept the Complainant’s submission that the outcome for the Complainant was pre-determined and/or inevitable either from the outset or once a finding of gross misconduct was made.

72. The Respondent had a disciplinary procedure in place under its Performance and Conduct Guidelines. In accordance with that procedure, the Complainant was subject to a disciplinary process, commencing with an investigation, a disciplinary hearing, and an independent appeal in respect of a matter brought to the Respondent’s attention in the context of another matter. The Complainant was represented throughout by his shop steward and/or union official. He accepted that he was given written notice of the allegations against him and written notice of the meetings to be held. The potential seriousness of the issue was outlined to him in correspondence regarding the potential for dismissal if the outcome was a finding of gross misconduct. He was afforded the opportunity to view the CCTV footage on which the Respondent relied.

73. The Complainant raised two issues with the process undertaken. First, he contended that the entire process was contaminated because the person (he said) “who formulated the allegation against him” and suspended him was also the lead investigator. The Court did not hear from the investigator in the case but the letter inviting the Complainant to the investigation meeting and the notes of that meeting were provided to the Court. That documentation does not support the case advanced by the Complainant. The allegations appear to arise from the “risk team” assessment in respect of the van incident. The Court does not take particular issue with the person conducting the investigation also being the person to notify the Complainant of his suspension pending that investigation. The decision to refer the matter to a disciplinary hearing arising from the investigation outcome came from HR and not the investigator. The disciplinary process was then conducted separately from the investigation. The Complainant did not identify any evidence of bias or prejudice or any factor that would give rise to any reasonable apprehension of such bias in the conduct of the disciplinary process. The Court considers that the procedure as documented was followed by the Respondent in this case and the Respondent’s procedures did not deviate from the provisions of SI 46 of 2000 in any material respect.

74. The second issue raised by the Complainant was the reliance by the Respondent on CCTV footage, the use of which in disciplinary proceedings was not agreed with the union. The Respondent’s CCTV policy was opened to the Court. Other than the fact that there was no collective agreement with regard to same (which was not disputed by the parties) no evidence was adduced, or submissions made, which supported a suggestion by the Complainant that the use of CCTV footage deprived him of fair procedures. To the contrary, the CCTV footage was available to both the Complainant and his representatives to view, but this offer was declined. Whether the use of CCTV footage constituted “a clear breach of data protection principles”, as advanced by the Complainant, is not a matter for consideration by this Court.

75. The proportionality of the decision to dismiss was also challenged by the Complainant. The issue of proportionality was considered by the High Court in Bank of Ireland v Reilly where Noonan J said (at paragraph 56): “In assessing the reasonableness of the employer’s conduct in relation to the dismissal herein, it seems to me that such an assessment must have regard 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.”

76. As set out earlier in this decision, the role of the Court is not to determine whether or not it would dismiss in the circumstances but whether the decision to dismiss was within the band of reasonableness open to the Respondent, including whether the decision to dismiss was proportionate in all the circumstances. The Complainant considered his service to be a mitigating factor and considered that the explanation regarding using his phone as an alarm for medication was also relevant. The fact that the Complainant had three years’ service with the Respondent could likewise be a factor in concluding that he had every reason to know the rules regarding mobile phone use while driving and the seriousness of not complying with same. The Respondent’s evidence regarding the belated introduction of the medication alarm was that the inconsistency was an issue for the person deciding the appeal. In the Court’s view it was not unreasonable for the Respondent to be sceptical of its late introduction. The Complainant’s evidence to the Court regarding the use of the alarm lacked plausibility where he maintained that he set the alarm for 5.45am to remind him to take medication over two hours after the alarm, which appears to the Court to negate the purpose and benefit of using an alarm.

77. In Allied Irish Banks v Purcell, the Circuit Court, citing Lord Denning MR in the decision of the UK Court of Appeal in British Leyland UK Ltd v Swift [1981] IRLR 91, stated that: “the correct test is: Was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal is unfair. But if a reasonable employer would 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 takes a different view.” The High Court in Bank of Ireland v Reilly agreed with Judge Linnane’s views regarding the appropriate test.

78. Given the safety critical nature of the Respondent’s business and the role performed by the Complainant, the Court considers that the imposition by the Respondent of a prohibition on mobile phone use while driving was reasonable. So too was the designation as gross misconduct the use of a mobile phone while driving. While a zero tolerance policy may be appropriate in certain circumstances this does not negate the entitlement of an employee to fair procedures and natural justice in the context of a disciplinary process arising from any conduct subject to such a zero tolerance policy. In this case there was zero tolerance for the conduct but the evidence before the Court did not support the Complainant’s assertion that dismissal was inevitable once the process of investigating that conduct commenced.

79. The Court finds that the Complainant was afforded the full panoply of fair procedure rights and his rights to natural justice were complied with. The Court did not consider that the investigator being the party placing the Complainant on suspension demonstrated a breach of fair procedures or the Respondent’s procedures. Insofar as there is any deficiency in this regard (and none is found by this Court) the Labour Court has found in Dunnes Stores v Kati Kapli UDD203 that, even where an employer’s procedures are “less than perfect”, they can still be fair once any deficiency is “not of such gravity as to imperil the fairness of the process”. No deficiency has been identified that, in the Court’s view, imperilled the fairness of the process.

80. While the decision to dismiss was undoubtedly harsh and had a serious impact on the Complainant, the Court finds, given the very obvious danger that engaging in the prohibited conduct poses for employees, customers and the wider public, where there was express prohibition of the conduct included in the Respondent’s policies and communicated to the Complainant, where the Complainant admitted the conduct and provided no credible mitigation or justification for the conduct, where fair procedures were applied (including the use of CCTV within policy guidelines), where the outcome was not predetermined and where alternatives to dismissal were considered including on appeal, that the decision to dismiss was not unfair.

Decision

81. In accordance with the provisions of section 8A(2)(a)(ii) of the UD Acts the Court affirms the decision of the Adjudication Officer, bearing reference numbers ADJ-00045088 and CA-00055843-001.
82. The Court so decides.

	Signed on behalf of the Labour Court
	Niamh McGowan
ÁM	______________________
16/09/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be in writing and addressed to Ms Áine Maunsell, Court Secretary.