O’Toole v Connex Transport (Irl) Ltd

• Jurisdiction: Ireland
• Judgment Date: 03 September 2006
• Judgment citation (vLex): [2006] 9 JIEC 0301
• Date: 03 September 2006
• Court: Employment Appeal Tribunal (Ireland)

Employment Appeals Tribunal

EAT: O'Toole (claimant) v Connex Transport (Irl) Ltd (respondent)

Abstract:

Employment law - Unfair dismissal - Safety procedures - Whether gross misconduct - Unfair Dismissals Acts 1977 to 2001

EMPLOYMENT APPEALS TRIBUNAL

CASE NO.

UD1079/2005

CLAIM OF:

Gerald O'Toole, 2719 Dara Park, Newbridge, Co. Kildare

against

Connex Transport (Irl) Limited, 2 Harbour Master

Place, IFSC, Dublin 1

Connex Transport (Irl) Limited, Luas Depot, Redcow

Roundabout, Clondalkin, Dublin 22

Veolia Transport Ireland, Luas Depot, Redcow

Roundabout, Clondalkin, Dublin 22

under

UNFAIR DISMISSALS ACTS, 1977 TO 2001

I certify that the Tribunal

(Division of Tribunal)

Chairman:	Ms C. Gleeson B. L.
Members:	Mr D. Moore
	Mr. P. Woods

heard this claim at Dublin on 23rd March 2006

and 4th July 2006

Facts: The claimant was a tram driver on the Luas and had been dismissed following an incident involving a collision of a lorry with a tram. The respondent alleged that the emergency brake should have been applied, which did not happen. The claimant alleged that a penalty less than dismissal would have been appropriate.

Held by the EAT, that the dismissal was fair and the claimant had not operated proper safety procedures, which amounted to gross misconduct.

The determination of the Tribunal was as follows:-

The claimant worked as a tram driver on the Luas

Respondent's case:

1 The Tribunal heard evidence from the driver's team leader. He works as supervisor and was acting as incident officer to investigate the accident on 7th April, 2005. The accident was reported at 10.38am and he got there with another colleague at 10.47am. His duty was to record the details, look after the driver and assist in getting the service back on track. A copy of the incident report and the claimant's statement together with relevant photographs were presented to the Tribunal. The tram had not de-railed however there was damage to the front left hand side. An articulated lorry was over the white line and in the swept path when the accident happened. The claimant was sent home and the matter was investigated. The trams are fitted with a tachometer which is a black box that records the exact actions/movements of the tram.

2 The claimant was called to a meeting on 13th April, 2005. The respondent wanted to clarify if the truck was stationary of moving. The claimant said it was stationary and over the white line. Witness had concerns that the claimant did not use the horn or emergency brake. The driver has a master controller which was not used. When asked the claimant said he used the emergency brake and horn. Witness explained to him that there was no evidence that this was the case. Claimant said he had not seen the down-loader before. Earlier that morning the same tram was engaged in another incident but with a different driver but no accident took place on that occasion. After the accident the claimant was placed on restricted driving duties. The respondent said there was a serious safety issue and the claimant was suspended on full pay. The brake and horn were not used and he claimant was an experienced driver. Witness consulted with the deputy operations manager while the matter was being investigated. In cross-examination witness said that the black box is an electronic device which records what the master controller is doing. It's a series of lines on a graph. Having checked the tram it was not found to be defective. The claimant was properly trained in relation to the use of the emergency procedure. There were no witnesses to the incident.

3 The contract manager also gave evidence to the Tribunal. He looks after the vehicle maintenance and would download the cctv footage...