By Gordon Deegan
Luas operator, Transdev, has sacked one of its drivers after finding that he was ‘moonlighting’ as a taxi-driver in his wife’s licensed taxi.
In response to a ‘tip-off’ over the driver’s ‘moonlighting’, Transdev hired a private investigator (PI) who placed the driver under surveillance across two evenings.
The PI observed the Luas employee accepting a number of fares and also hailed down the ‘taxi-driver’ to become a passenger in his cab and paid a €5 fare.
After an internal investigation and disciplinary process, the Luas driver was sacked for gross misconduct after two internal appeals, including one to Transdev’s Managing Director, failed.
In dismissing the driver, Transdev found the ‘moonlighting’ as gross misconduct as it viewed the additional demands placed on the driver’s time as a threat on his capacity to carry out his highly responsible role as Luas driver.
Transdev also pointed out that the driver’s contract of employment contains explicit exclusion of ‘moonlighting’ work.
Transdev stated that the decision to dismiss was a proportionate sanction in the circumstances, in particular as the driver’s union accepted in a 2009 collective agreement that such conduct as ‘gross misconduct’.
In response the Luas driver sued for unfair dismissal and the Workplace Relations Commission (WRC) has found that the dismissal was fair, upholding Transdev’s decision.
As part of the Transdev investigation, the driver said that he didn’t know how many times he had driven his wife's taxi.
He said he did not collect any fares, and that these would be forwarded to his wife later.
The Luas driver didn’t accept that his conduct was a potential challenge to his capacity to discharge his duties with Transdev in a safe manner.
However, the ‘whistle-blower’ in the case that the Luas driver “arrived on a regular basis (Friday and Saturday) at the taxi base where he swaps from his private car and into his wife’s taxi and works til 2-3am”.
The un-named Luas driver told the WRC that the dismissal was not proportionate and the actions of Transdev were unreasonable.
The Luas driver stated that what occurred should be viewed as a ‘minor infringement’ of company policy,
On the ‘tip-off’ received by Transdev, the driver claimed that the complaint was ‘malicious’ and possibly written by another Luas employee to cause him damage.
The driver stated that the level of knowledge of his movements would not be known to a person who had simply casually observed them and that the person making the complaint was aware of detail about the wife’s taxi business and other details suggesting that this was someone who knew the driver well and set out to cause him harm.
WRC Adjudication Officer, Pat Brady said that the manner in which the matter came to the employer’s attention “is suspicious indeed”.
Mr Brady said that the reference in the ‘tip-off’ that the whistle-blower had seen an individual that "is the spitting image" of the man driving the Luas a good while back "was understandably scorned by the Luas driver’s representative as entirely lacking in credibility”.
Mr Brady said: “Ultimately, this does not matter. The respondent has a duty to apply its own rules once any alleged breach of them comes to its attention and regardless of the motives of any person doing so.”
Transdev stated that the motive of a person making the report is irrelevant and that there was no breach of the Luas driver’s privacy as the activity alleged took place in a public place.
Mr Brady said that the driver’s position “as a public transport driver requires a high level of application and concentration. He may have the safety of a very large number of members of the public who are his passengers in his hands”.
Mr Brady said that the employer bases its case on its obligation to monitor and prevent driver fatigue, primarily through enforcement of its rest periods.
The driver can appeal the decision to the Labour Court and Transdev on Monday declined to comment on the WRC ruling.