The Labour Court recently held that a bus driver who used a mobile phone while driving a bus was unfairly dismissed and then went on to award him zero compensation.
In its decision, the Labour Court said this outcome cannot have come a surprise to the driver.
Earlier, the court heard that a member of the public complained to the driver’s employer that he had blocked a pedestrian crossing. While investigating the complaint, the employer found that the driver was using his mobile phone.
He was suspended and a disciplinary investigation meeting was held. At the meeting, the driver acknowledged he was using his phone at the time in question. The investigation meeting was followed by a disciplinary hearing, at which a decision was taken to dismiss the driver. He appealed but the decision was upheld.
At the hearing, the employer argued that the use of a mobile phone was strictly forbidden while in control of a bus and is classified as gross misconduct. The employer argued that the law prohibits the use of mobile phones while in control of a vehicle and told the court it takes its health and safety obligations seriously. The driver was, the company argued, aware of this and the consequences.
At the hearing, the driver argued that the decision to dismiss him was fundamentally flawed, as he was never given the employer’s CCTV policy and also he had not been given a fair hearing because the decision maker in the process had prejudiced himself in an email.
THE DISCIPLINARY PROCESS
The disciplinary investigation was conducted by the assistant operations manager. The disiplinary hearing was conducted by the operations manager. The appeal hearing was heard by Mr BF.
The driver argued that process was flawed because the operations manager had directed his assistant manager, who conducted the disciplinary investigation, to suspend the driver based on CCTV footage. the manager stated in an email: “What is especially concerning is the clip where he is engrossed in his phone for 35+ seconds and misses a green traffic light.”
The driver also argued that the CCTV data used was contrary to the employer’s data policy and that his personal data was used without his knowledge in a manner that was not legal, fair or transparent.
The court also heard that the driver had an excellent work record (including helping save a young child from choking while on his bus). Furthermore, the employer was aware the driver was having domestic problems and was homeless. Despite this and having to sleep in his car, he came to work every day. He argued that a momentary lapse in concentration must be balanced against these mitigating factors.
DELIBERATION AND DETERMINATION
The court found that, while all procedures had been followed, the process was flawed because of the operations manager’s email to his assistant when holding the disciplinary investigation. Citing High Court judgments, the court said the decision-making process must be seen to be impartial. The driver was not afforded his rights of natural justice.
The court asked both parties for their views on an appropriate remedy, in the event of a decision that the dismissal was unfair. Both suggested the only viable remedy was compensation.
In assessing compensation, the court noted the driver’s acceptance that he used his mobile phone while in charge of a vehicle and it was not disputed that the employer’s handbook made it absolutely clear such conduct is classified as gross misconduct.
The court heard that all drivers receive five days’ training, in the course of which health and safety requirements are emphasised. The court determined that the driver contributed 100% to his dismissal and that zero compensation was the appropriate award. The court said that the use of data was outside its competence. (Gifford v Go Ahead Transport Services (Dublin) Ltd, Labour Court March 2022, ref: UDD2225)
Ref: Health and Safety Review