Authors: Bláthnaid Evans and Sheila Spokes

Employment Update: Transdev Ireland Limited v Michael Caplis[1] ⚓︎

In a recent judgment by the High Court, Justice Humphreys refused to grant the appellant, Transdev Ireland Limited (the “Employer”) permission to appeal on a point of law a decision of the Labour Court. The Labour Court held that Michael Caplis (the “Employee”), had been unfairly dismissed by the Employer contrary to the Unfair Dismissals Acts 1977-2015 (the “UD Acts”) and ordered the Employer to reengage the Employee. The High Court dismissed the appeal on the basis that the Employer had failed to make out a point of law that would warrant allowing the appeal.

Background        ⚓︎

The Employee was employed as a Luas tram driver with the Employer and as such, was categorised as a “safety critical worker” within the meaning of the Railway Safety Act 2005. In order to mitigate against the risk that arises from driver fatigue, the Employer– in consultation with the SIPTU Trade Union – put in place a roster system for drivers, including the Employee, that provided for adequate rest breaks. In addition, the Employee’s contract of employment contained an explicit exclusion of working other than for the Employer without authorisation. This stated:

“You may not, without the prior written consent of the company, engage in any business or employment outside your hours of work with the company.”

The Employer also included failing to comply with this requirement as an example of gross misconduct. On foot of an anonymous query that the Employee had been driving a taxi regularly, the Employer hired a private investigator who observed the Employee taking a number of taxi fares. The Employee did not deny his involvement with the taxi business and stated that he had occasionally driven taxis to assist his wife who owned the taxi business. Following a disciplinary process, the Employer dismissed the Employee for gross misconduct. Accordingly, the Employee pursued a claim for unfair dismissal under the UD Acts and under the Minimum Notice and Terms of Employment Acts 1973-2005 (the “1973 Acts”), as he was dismissed without notice.

Decision of the Workplace Relations Commission[2] ⚓︎

In dismissing the claim, the Adjudication Officer (the “AO”) held that the Employer had a duty to apply its own rules once any alleged breach of them comes to its attention and has an obligation to monitor and prevent driver fatigue, primarily through enforcement of its rest periods. In this regard, the AO noted that the Employee’s position as a public transport driver requires a high level of concentration. As such, the AO found that the decision to dismiss the Employee was within the range of reasonable responses of the Employer in respect of the concerned conduct.

Decision of the Labour Court[3] ⚓︎

By way of appeal to the Labour Court, the Court did not accept that summary dismissal was within the range of reasonable responses open to the Employer. In this regard, the Court noted that the Employee had no disciplinary issues over the twelve years’ service with the Employer. In addition, the Court took account of the fact that the Employee had admitted his conduct from the outset of the investigation. While it conceded that the reasons for the Employee’s belief that driving his wife’s taxi from time to time did not equate to double-jobbing were erroneous, it noted that there was no actual non-compliance with the daily and weekly rest break provisions of the Organisation of Working Time Act 1997.

As a result, the Court ordered that the Employee should be re-engaged as a Luas tram driver and that the period from the date of his purported dismissal on 17 August 2017 to the date of his re-engagement should be regarded as a period of unpaid suspension. In light of the remedy awarded, the Court rendered the complaint under the 1973 Act moot and made no award to the Employee under the 1973 Act.

The Employer appealed the decision of the Labour Court to the High Court on a point of law pursuant to Section 10A of the UD Acts and Section 46 of the Workplace Relations Act 2015.

Decision of the High Court ⚓︎

In the High Court, Justice Humphreys summarised the grounds of the appeal on the basis of the Labour Court’s alleged failure to (i) engage with or rationally address the law, (ii) engage with or rationally address the facts and (iii) give reasons for the order for re-engagement.

(i) The Labour Court’s alleged failure to engage with or rationally address the statutory provisions

The Employer alleged that Labour Court’s decision failed to analyse the case within the explicit terms of the UD Acts and the caselaw relating to it. In this regard, it referred to the previous decision of the Supreme Court in Nano Nagle School v. Daly,[4] where Justice McMenamin stated that “justice must be seen to be done. Part of that process must be that a deciding tribunal is seen to engage with the relevant evidence, and, in its decision, address it one way or another within the prism of the applicable law.”

While the High Court acknowledged that the Labour Court’s decision did not appear to have analysed the matter before it in accordance with the relevant law, even if this was a reviewable error of law, it held that “it was a harmless error on the facts.” In this regard, the Court stated that the duty to give reasons or to articulate the decision in a particularly detailed manner is satisfied if the decision-maker chooses to focus on such matters that are actually in dispute between the parties. In this case, the Court determined that the Labour Court was entitled to “cut to the chase” and analyse the main issue in dispute, which was essentially whether the employer’s action was within the range of responses open to a reasonable employer.

(ii) The Labour Court’s alleged failure to engage with or rationally address relevant evidence.

The High Court determined that the Labour Court’s decision was not outside the bounds of what it was open to determine so as to make the decision unlawful or to amount to a point of law which would permit the High Court to allow the appeal. In this regard, Justice Humphreys made the following observations:

• Justice Humphreys stated that he would probably not have come to the same conclusion as the Labour Court that the dismissal was unfair. However, he stated that this was irrelevant, as the function of an appeal on a point of law is to address the legality of the decision before it and not whether the Court would have come to the same conclusion.

• As the High Court did not have the benefit of considering detailed written and oral submissions and hearing witnesses, it could not consider the evidence in the same manner as the Labour Court. In this regard, Justice Humphreys deferred to the specialised function of the Labour Court, which consists of a panel of industrial relations experts.

• As the Labour Court considered safety issues, the Railway Safety Act 2005 and other key elements of the evidence, it could not be said that a central matter to the case was completely ignored.

• The parties are entitled to the gist of the reasons for the decision only, which the High Court determined was apparent from the Labour Court’s decision.

(iii) The Labour Court’s alleged failure to give reasons for the order for re-engagement.

Justice Humphreys stated that reinstatement or re-engagement after an unfair dismissal does not require any express justification or reason as it flows naturally from the finding of an unfair dismissal itself. As such, he held that the remedy was not unreasoned to such an extent as to warrant setting the decision aside.

Accordingly, the Court determined that the Employer had failed to establish a point of law that would warrant allowing the appeal and dismissed the appeal.

Key implications ⚓︎

This case serves as a crucial reminder for parties contemplating an appeal on a point of law. In this regard, the purpose of such an appeal should not be based on the correctness or conclusions reached by the statutory body in question. As highlighted in this case, whether the Court agrees with such a decision is irrelevant and when reviewing decisions of a statutory body, the Court will defer to the expertise and experience of the statutory body in question, that will also usually have the benefit of being present at an oral hearing of the matter. As such, in order to successfully ground an appeal on a point of law, the appellant must be able to establish that the adjudicating body had erred in law to the extent that the Court would be permitted to warrant an appeal on a point of law.

If you have any queries or require advice in relation to any of the issues raised in this judgment, please contact Bláthnaid Evans or Sheila Spokes of Leman Solicitors on, +353 1 639 3000 or visit our website, www.leman.ie.