The Labour Court has determined that Luas driver Michael Caplis, who was sacked for ‘moonlighting’ as a taxi driver in his wife’s licensed taxi, be reinstated immediately.
This follows a successful appeal by Michael Caplis against a Workplace Relations Commission (WRC) ruling that the decision by Luas operator, Transdev Ireland Ltd to sack him for gross misconduct in August 2017 was fair.
In his ruling, Deputy Chairman at the Labour Court, Alan Haugh said that the court did not accept that Mr Caplis's "summary dismissal was a reasonable response open to a reasonable employer in the circumstances of this case".
Mr Haugh found that Mr Caplis - employed as a Luas driver since May 2005 - admitted his conduct from the outset of the investigation.
He stated that Mr Caplis offered an explanation for that conduct and outlined the reasons for his – admittedly erroneous - belief that driving his wife’s taxi from to time at the end of her shift did not equate to double-jobbing.
Mr Haugh stated that “no actual non-compliance with the daily and weekly rest break provisions of the Organisation of Working Time Act 1997 was proven to have resulted from the complainant’s action”.
Mr Haugh said that Mr Caplis had over 12 years’ service with Transdev as of the date of his dismissal and had no disciplinary issues in that time.
Mr Haugh said that in all the circumstances, Mr Caplis should be re-engaged as a Luas tram driver immediately.
Mr Haugh stated that the period from the date of Mr Caplis's purported dismissal on August 17, 2017 to the date of his re-engagement is to be regarded as a period of unpaid suspension.
In response to a ‘tip-off’ from a member of the public in April 2017 over the Mr Caplis's work as a taxi driver, Transdev hired a private investigator (PI) who placed Mr Caplis under surveillance across two evenings in late May 2017.
The PI observed Mr Caplis accepting a number of fares and also hailed down the ‘taxi driver’ to become a passenger in his cab and paid a €5 fare.
The PI provided to Transdev reports, photographs and an audio recording concerning the surveillance of Mr Caplis on May 27 and 28, 2017.
After an internal investigation and disciplinary process, Mr Caplis was sacked for gross misconduct after two internal appeals, including one to Transdev’s Managing Director, failed.
In dismissing Mr Caplis, Transdev found the ‘moonlighting’ as gross misconduct as it viewed the additional demands placed on Mr Caplis's time as a threat on his capacity to carry out his highly responsible role as Luas driver.
Transdev told Mr Caplis that he had been engaging in other paid employment without permission from the company by driving a taxi.
Transdev also pointed out that Mr Caplis'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 Mr Caplis's union accepted in a 2009 collective agreement that such conduct as ‘gross misconduct’.
Mr Caplis did not deny having driven a taxi on the nights identified by Transdev.
Mr Caplis admitted that he had driven his wife’s taxi in a very limited way and from time to time in order to assist her following her diagnosis of a serious medical condition in or about February 2017.
Mr Caplis told Transdev that he did not personally retain any fares as that was income which was declared by his wife to Revenue.
He also stated that he had kept his PSV licence up to date in order to have the option of reverting to driving a taxi following his retirement from Transdev.
Mr Caplis also continued to be a named driver on his wife’s taxi insurance policy.
During the course of the Luas investigation, a letter on behalf of Mr Caplis stated: "As Michael was only backfilling occasional hours at his wife’s behest on an occasional and infrequent basis, he was of the belief that he wasn’t doing anything wrong or engaging in any forbidden activity.
Counsel for Mr Caplis, Mary Paula Guinness BL (instructed by S Bartels and Co Solicitors) argued at the Labour Court that the decision to summarily dismiss Mr Caplis was disproportionate having regard to his relatively long service with Transdev and his prior unblemished record.
Ms Guinness asked the Labour Court to take into account Mr Caplis’s honest belief that he, at no time, considered that helping his wife out from to time equated to engaging in paid, external employment.
Ms Guinness also argued that Transdev failed to give serious consideration to alternative sanctions other than summary dismissal at either the dismissal or the appeal stages.
Ms Guinness was seeking the reinstatement of Mr Caplis.
At the WRC, Mr Caplis claimed that the ‘tip-off’ was ‘malicious’ and possibly written by another Luas employee to cause him damage.
Mr Caplis 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.
A spokeswoman for Transdev Ireland said today that the company would not be commenting on the Labour Court outcome.