Key Learnings
Trust and confidence are essential in all working relationships. There is an implied term in every contract of employment that requires both Employers and Employees to refrain from behaving in such a way as to destroy the relationship of trust and confidence. In this case, the Adjudicator found that the Complainant failed to fulfil the key duties of his role, which gave rise to risks of health and safety. It was viewed that the Respondent therefore had every entitlement to lose confidence and trust in the Complainant and acted reasonably in applying the ultimate sanction of dismissal.
On the conclusion of the disciplinary process, the Complainant had been notified of his right of appeal and was informed that following an appeal, a disciplinary sanction may be upheld, removed, reduced or increased. It is noteworthy that the Appeals Manager in this Case found that the original disciplinary sanction of a final written warning was not the appropriate sanction given the facts and circumstances, and increased the sanction to summary dismissal.
Background
The Complainant worked as a Duty Manager in the Tunnel Control Room at the Dublin Port Tunnel. During his shift on 10 January 2018 an incident occurred, where a Tunnel Patroller complained that a prank had been played on him when he was wrongly informed that a collision had occurred between a bus and another vehicle. The Duty Manager was subsequently dismissed for not taking appropriate action to prevent a prank being carried out which had the potential to result in serious injury to both staff and the general public.
Summary of Complainant’s Case
On 10 January 2018, the Complainant started to feel unwell during his shift. Between 18:00 and 19:00 an incident occurred which was referred to by the parties to the incident itself as a prank. The Complainant has at all times denied knowledge of the incident and took no part in the radio exchanges other than when he became aware of a breach of radio etiquette. This prank became the source of a complaint arising from which he was the only person disciplined and the only person dismissed, despite having no hand, act or part in an incident which lasted approximately 30 seconds.
The incident first came to the attention of the Complainant when a colleague approached him after the incident had concluded to tell him a stunt had been pulled which was out of order but that it was all sorted. This colleague then left before the Complainant could ask any questions. The Complainant went into the Control Office and asked what had happened. He was advised that this colleague and the Toll Supervisor had played pranks on each other and it had been going on for a couple of weeks. The Complainant being unwell as he was suffering from asthma, left the workplace on sick leave, went home and thought no more of the incident.
The Complainant was notified by letter dated 18 January 2018 that he would be subjected to an investigation and that an investigation meeting was scheduled for 12 February 2018. Before the meeting, the Complainant’s Union representative requested copies of all documents and statements concerning any allegation against the Complainant. The application was refused.
The Complainant submits that he was not afforded due process during the investigation because the Investigator’s report made conclusive findings on the basis of (i) the statements of colleagues in respect of which the Complainant was not afforded a right of challenge and (ii) CCTV obtained in breach of section 2A of the Data Protection Act, 1988-2018. A formal grievance was lodged by the Complainant into the actions of the Investigator.
A grievance meeting was scheduled, and a report of the grievance process, and the Respondent’s grievance report completely exonerated the use of the CCTV and the actions of the Investigator. The Complainant appealed the outcome of the grievance process but his appeal was denied as the Respondent had determined that all relevant factors had been addressed.
The Complainant then received an invitation to a disciplinary hearing to address the findings of the investigation. The conclusion of the investigation was that the Complainant did not take any action following being informed that the prank was to happen. The Complainant contends that he was unaware of the incident and that the Duty Officer failed to make a full report of the incident to him. The Complainant contends that this is a crucial point and yet the Duty Officer was exonerated fully.
The disciplinary hearing outcome was notified to the Complainant in a letter dated 6 July 2018 nearly six months after the incident on 10 January 2018. The Complainant contends that a review of the outcome letter suggests that at no point did the Respondent consider dismissal as a possible sanction. The Complainant contends that the minutes of the disciplinary meeting are unsigned and remain disputed.
An appeal was lodged and following the appeal hearing, a decision to dismiss the Complainant was communicated. There was no evidence to justify the ultimate sanction of dismissal, particularly in circumstances where he worked normally through the entire period and was not suspended from work at any stage. He was Duty Manager up to the date of dismissal on 13th August 2018.
The Complainant submits that he should have been told at the outset of the disciplinary process in clear and unambiguous terms what he was accused of. The Complainant contends that it was not until 4 April 2018, nearly three months later, that disciplinary action was proposed and the nature of the allegation of wrongdoing, flimsy as it was, was made.
Summary of Respondent’s Case
At the time of the incident which led to his dismissal, the Complainant was the Duty Manager of the Tunnel Control Room which monitors the maintenance, safety and security of the Dublin Tunnel and the Jack Lynch Tunnel. In addition to overseeing the control rooms, the Duty Manager also has responsibility for the Tunnel Patrollers, typically 3 patrollers per shift. The patrollers’ duties involve responding to any incidents or accidents in the tunnel. When an incident occurs, the Tunnel Control Room will be the first to know. The control room will then radio the patroller who immediately proceeds to the scene of the accident.
On 9 January 2018 a serious accident occurred in the tunnel involving a collision between a lorry and a tanker. One of the patrollers on the scene was Colleague A. The driver of the lorry was seriously injured with arm, chest and leg injuries. Colleague A assisted in the area and attended to the injured party until the emergency services arrived.
The following day Colleague A was on patrol and the Complainant was the Duty Manager with responsibility for the Port Tunnel. The shift commenced at approximately 18:00. At approximately 18:20 the Toll Supervisor on duty left the Toll/MTCC Control Room and went to the Tunnel Control where he took up a radio and told those present that he was going to play a prank on Colleague A. He then called Colleague A on the radio and told him that there was a serious accident in the tunnel involving a coach and a car. Colleague A, as per his duties and responsibilities, drove at the highest possible speed, deploying all his vehicle warning lights, to the area where the crash was supposed to have occurred. It should be noted that this incident happened during rush hour traffic when the tunnel was at high capacity. Colleague A, while driving to the ‘accident’, would have had to move at high speed in and out of traffic lanes. The potential for a real accident was thus greatly increased.
When the Toll Supervisor told Colleague A that it was a wind-up, Colleague A responded over the radio by saying, “don’t pull that shit with me!” It was at this point that the Complainant intervened to chastise Colleague A for his “radio etiquette”. Colleague A responded by asking the Complainant “what about work etiquette”. Upon returning to base Colleague A confronted the Toll Supervisor over his behaviour. In the following days the Toll Supervisor apologised for his behaviour. Notwithstanding this apology, Colleague A made a formal complaint about the incident.
On 18 January 2018 the Respondent formally commenced an investigation into the incident. As part of the investigation, the Complainant confirmed that he was present in the Tunnel Control Room during the incident but denied that he was aware of the incident because he was not feeling well having just returned from a period of sick leave. He claimed he “was busy”,“not tuned into what was going on”. He heard Colleague A use the word “shit” at which point he got involved to reprimand him for his lack of “radio etiquette”. He reiterated that he was unwell that evening and had gone home several hours after the incident.
The Respondent submits that the CCTV footage showed that the Complainant was present during the incident, and that the Toll Supervisor can be seen entering the room, taking up a radio and calling Colleague A. The Complainant was sitting at his desk approximately eight feet from the Toll Supervisor. As the Toll Supervisor was speaking to Colleague A on the radio, the Toll Supervisor walked back and forth and, at one point, came within a few feet of the Complainant. The investigation found that the Complainant appeared to be engaged in the incident and did not intervene. The matter was then put forward for a disciplinary hearing.
On 14 March 2018 the Complainant raised a formal grievance regarding the use of CCTV in the investigation. The grievance was not upheld as the CCTV was being used in connection with matters of health and safety, which is allowed for in the Company/Union agreed policy. The outcome was sent to the Complainant on 10 May 2018. The Complainant appealed the outcome on 4 June 2018. The appeal upheld the original decision.
The Complainant attended a disciplinary hearing on 21 June 2018. The Complainant reiterated his position, specifically that he was unwell at the time and was not aware of the prank. The outcome of the disciplinary hearing was issued on 6 July 2018 and addressed the very serious nature of the incident. The Disciplinary Manager found that the Complainant was aware that the prank was taking place and allowed it to proceed and in doing so lost control of the situation and the Tunnel Control Room. The allegation was thus upheld. In deciding upon the appropriate sanction, the Disciplinary Manager had regard to the Complainant’s assertion that he was feeling unwell at the time. For this reason, the sanction chosen by the Disciplinary Manager was a final written warning and a two-week unpaid suspension from work. The Complainant was notified of his right of appeal and was informed that following an appeal, a disciplinary sanction may be upheld, removed, reduced or increased.
The Complainant appealed the outcome of the disciplinary hearing on the grounds of incorrect procedures, failure to take into account mitigating circumstances, and disproportionate sanction in the circumstances.
The Appeals Manager appointed to hearing the appeal, found that the original sanction of a final written warning was not the appropriate sanction given the facts and circumstances and the sanction was increased to summary dismissal.
Findings and Conclusions
The Adjudicator found that there was overall fair and just procedures applied during the investigation, with the notable exception that the Complainant was not afforded the opportunity to cross-examine his colleagues. The Respondent conducted a staged process which overall, was fair and reasonable throughout.
The Adjudicator noted that the incident was not a prank – but was a foolish act on the part of the Toll Supervisor which could have resulted in injury and even loss of life to both Employees of the Respondent and members of the public who were using the tunnel at that time.
The very essence of the Complainant’s position as Duty Manager is to safeguard the health and safety of all tunnel users. The Adjudicator found that through his actions in not stopping the Tunnel Controller from carrying out the so called “prank”, the Complainant failed to fulfil the key duties of his role.
It was noted that the Complainant had always denied any knowledge of the Tunnel Controller’s actions on 10 January 2018 but that it was difficult for the Adjudicator to understand how the Complainant heard the victim of the prank use the word “shit” but did not hear the Toll Supervisor use incident critical phrases including “multi-vehicle collision”, “debris” and “take evasive action”. This led the Adjudicator to reach the same conclusion as the Appeals Officer that, on the balance of probabilities, the Complainant did hear the entire incident and did not take any action to stop it.
Trust and confidence are essential in all working relationships. There is an implied term in every contract of employment that requires both Employers and Employees to refrain from behaving in such a way as to destroy the relationship of trust and confidence. As a consequence of the Complainant’s action, or inaction, the Respondent had every entitlement to lose confidence and trust in him. It was the Adjudicator’s view that any Employer faced with the same circumstances to those that pertained in this case would have acted in the same way. The Adjudicator found that the conclusion reached by the Respondent in relation to the conduct of the Complainant was reasonable in all of these circumstances.
In the light of all the foregoing, the Adjudicator found that the Respondent acted reasonably in applying the ultimate sanction of dismissal and, therefore, acted as a reasonable Employer would have in such circumstances.
Decision
Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, the Adjudicator declared that the complaint is not well founded.