Audrey Whyte

A recent Labour Court decision reminds employers that they could be ordered to re-employ employees they have unfairly dismissed. Employers should also consider whether dismissal is a proportionate response to a disciplinary issue even in situations where the employee admits misconduct and the employer has followed a fair procedure.

In Caplis v Transdev Ireland Limited, the Labour Court found that the dismissal of a Luas tram driver for occasionally moonlighting as a taxi driver was a disproportionate response to the breach of Transdev’s policy against double-jobbing. The Labour Court ordered Transdev to re-engage the employee from the date of the court’s decision, with the period between his dismissal and re-engagement to be treated as an unpaid suspension, so his continuity of service would be preserved.

The facts

Mr Caplis was fired following the completion of an investigation and disciplinary process into allegations that he had been working a second job and driving his wife’s taxi without Transdev’s permission. Transdev argued that this “double jobbing” was a breach of the employee’s contract of employment and an act of gross misconduct. Luas tram drivers are categorised as “safety critical workers” under the Railway Safety Act 2005. In order to mitigate risks that might arise from driver fatigue, there was a driver roster system that provided for adequate rest periods. The drivers were also contractually prohibited from engaging in outside employment during rest periods without Transdev’s consent.

As part of the investigation process, Transdev hired a private investigator to follow Mr Caplis and gather evidence, which was provided to him in advance of the investigation and disciplinary meetings. Mr Caplis admitted that he had been driving the taxi occasionally (without pay) to help his wife after she became ill. However, he denied that this additional work caused him to infringe any of the statutory rest break requirements under the Organisation of Working Time Act 1997 (OWTA). Mr Caplis was suspended on full pay during the investigation and disciplinary process and was summarily dismissed for gross misconduct following completion of the disciplinary process. After challenging the dismissal via Transdev’s two stage appeal process, Mr Caplis brought an unfair dismissal claim to the Workplace Relations Commission (WRC).

The Adjudication Officer (AO) in the first instance found that the decision to dismiss was within the range of reasonable responses, in view of:

1. the safety critical role operated by Luas drivers; and
2. the clear policy against double-jobbing which was designed to mitigate the risk of driver fatigue.

On that basis, and having regard to the procedures followed in reaching the decision to dismiss, the AO found the dismissal to be fair. Mr Caplis appealed the AO’s decision to the Labour Court.

The Labour Court decision

The Labour Court noted that there was no dispute by either party over the facts of the case. It also noted that the employee had admitted the conduct in question, and that fair procedures and natural justice had been afforded to him throughout the investigation and disciplinary process. However, notwithstanding the fair procedures followed; the Labour Court disagreed with the proportionality of the sanction. In reaching its decision, the Labour Court took the following factors into account:

• The employee had admitted his conduct from the start and explained that he had mistakenly believed that driving his wife’s taxi was not “double-jobbing” and a breach of his contract of employment;
• There was no evidence of a breach of the daily and weekly rest break requirements in the OWTA as a result of his actions; and
• The employee had over 12 years’ service with Transdev and had no previous disciplinary issues.

Having regard to the above, the Labour Court found the dismissal was disproportionate and ordered that Mr Caplis be re-engaged by Transdev.

Commentary

The case provides some valuable guidance for employers on handling disciplinary issues:

1. Stick to the Company policy. As with all cases of dismissal for gross misconduct, it is vital that employers have clear policies in place which explain what constitutes gross misconduct and which set out the disciplinary process to be followed. Particularly where safety critical roles are a feature of the employment, such as in the transport sector, employers should detail, both in the contract and employment policies, any safety concerns to employees occupying such roles.The employer’s policies should explain the safety risks and the processes in place to mitigate them in more detail. This makes it less likely that employees who breach safety procedures can claim they were unaware of the risks and the potential consequences.
2. Consider alternatives to dismissal. The case illustrates the importance of considering the proportionality of any disciplinary sanction and documenting such consideration prior to imposing the penalty.Regardless of the strength of the evidence and the fairness of the disciplinary process followed, the decision must be proportionate.The test is whether the proposed sanction is within the range of responses that a reasonable employer in the same circumstances could impose. Where an employee has a good disciplinary record, and particularly where they have long service, it will be more difficult for an employer to show that dismissal was a proportionate response.
3. What about data protection? As a separate issue, although data protection was not addressed in the case, relying on the evidence of a private investigator is increasingly problematic and risky under the GDPR regime. Employers who wish to engage private investigators to monitor employees suspected of misconduct should be mindful of the risk that any evidence obtained from the private investigator’s covert monitoring may be regarded as inadmissible in court proceedings.Such covert monitoring may also give rise to a separate complaint to the Data Protection Commission of breach of the employee’s data subject rights, which carries the risk of substantial fines and adverse publicity.
4. Redress. The final point for employers to take note of is the form of redress which can be awarded in these types of cases. Under the Unfair Dismissals Acts 1977 – 2015, the WRC has the power to order:
   • Compensation of up to 2 years’ remuneration; and/or
   • Re-instatement (in other words, where employees are put back into employment as if the dismissal had not taken place and are therefore entitled to back pay from the date of the dismissal); or
   • Re-engagement (in other words, where employees are re-employed by the employer from the date of the WRC decision with no entitlement to back pay for the period between their dismissal and re-engagement).

Compensation is generally the most common form of redress in cases of unfair dismissal, as the WRC will be reluctant to put an employee back into employment where the relationship with the employer has broken down. However, the current case reminds employers that compensation is not the only remedy available to aggrieved employees and the WRC has the power to force the employer to bring an employee back into employment, with or without back pay, where it views this as the appropriate remedy.

• Audrey Whyte is an associate in the employment, immigration and reward division at Lewis Silkin in Dublin.