Industrial Tribunals Northern Ireland Decisions

 


Gibson v Logan & Ors (t/a Logan Executive Travel) (Unfair Dismissal) [2002] NIIT 111_01 (8 February 2002)

THE INDUSTRIAL TRIBUNALS

CASE REF: 111/01

APPLICANT: Norman David Gibson

RESPONDENT: Sean Logan, Patrick J Logan and Dorothy Logan

T/a Logan Executive Travel

DECISION

The unanimous decision of the tribunal is that the applicant was not unfairly dismissed.

Appearances:

The applicant was represented by Mr McLarnon, Solicitor of Daniel McKenna & Co, Solicitors.

The respondent was represented by Mrs Garside, Advocate of Peninsula Business Services.

This is a decision in summary form under Rule 10(4) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 1996.

FACTS

The tribunal makes the following findings of fact:

1. The applicant had been employed by the respondent as a bus driver, since February 1993. The respondent firm is a partnership of Mr Sean Logan, his father Patrick Logan and his mother Dorothy Logan, trading as Logan Executive Travel and the tribunal orders the name of the respondent be amended accordingly.
2. On 6 November 2000, the applicant was doing a service run in the Ballymoney area. The bus would not move off after a stop, and the applicant thought there was a problem with the brakes. He did not have his company issue mobile phone with him so he borrowed a phone and called the respondent's office to advise of the problem. He called back a few minutes later to say that he had released the exhaust brake button, which had been applied by mistake and the bus was now going okay. By this stage, Sean Logan had spoken to the firm's mechanic, Brian McLaughlin, who was unhappy with the applicant's explanation and thought the bus should be brought in and checked. He pointed out that the exhaust brake being applied would not of itself stop the bus moving. The primary concern of the firm was to ensure the bus was safe and that there was no risk to passengers. So Sean Logan sent out the relief bus which had been prepared, with instructions for Mr Gibson to take the relief bus on his run while the other driver brought the applicant's bus back to the yard.
3. On two occasions the applicant was met by the driver of the relief bus and refused to send his bus back to the yard. He continued driving it on his round. His explanation was that the relief bus was not as good a bus as his.
4. On the third occasion, the mechanic and another driver came out and met the applicant on his run. The mechanic told him the other driver was to take the passengers on their journey and he had instructions to take the applicant and his bus back to the yard. Although the applicant said there was nothing wrong with the bus, on this occasion he complied with the instruction.
5. On his return to the yard, the applicant was taken to one side by the Manager, Jarleth O'Donnell and told he was being suspended for disobeying an order and not taking the replacement bus. A disciplinary meeting was arranged for the following day and the applicant was told he could be accompanied at the meeting, but declined the offer. The applicant was given an opportunity to give a full account of events at that meeting and was subsequently dismissed by letter dated 8 November 2000. The applicant appealed the decision and the appeal was heard by Patrick Logan on 15 November 2000. Again the applicant had the opportunity to be accompanied and to put his side of the story in full, as appears from the oral evidence and from his application to the tribunal. The appeal was dismissed.

REASONS

6. The finding of the tribunal is that the applicant was fairly dismissed for refusing a reasonable work instruction on two occasions and refusing to take the replacement bus. Much was made by the applicant's representative of the applicant's experience as a bus driver. Such an experienced driver should have known that health and safety considerations were of paramount importance and should have complied with his employer's request without question. As Mr Logan pointed out, had the bus been involved in an accident later that day and a fault been discovered, the firm would have been responsible. Further, no matter how experienced a driver the applicant was, he was not a mechanic and was not qualified to make judgement about the roadworthiness of the vehicle. Given the safety considerations involved, the tribunal believes that it was appropriate for the employer to treat this matter as gross misconduct and that dismissal fell within the reasonable range of responses the employer could make.
7. The applicant's solicitor submitted that the respondent's disciplinary procedure was flawed and unfair, and that as a result, the applicant's dismissal was unfair. Certainly, the documentary evidence of the original disciplinary hearing was somewhat confused and this was not helped by the unavailability of some of the original paperwork.

However the tribunal has to look at the process as a whole and not just the written record of it. Both at the disciplinary meeting and at the subsequent appeal, the applicant was given the opportunity to be accompanied and to give a full account of what had occurred. At no time was there any dispute on the facts. The person hearing the appeal, Patrick Logan was someone with whom the applicant always felt he had got on well. Mr Logan had been

given the details of the disciplinary meeting by Jarleth O'Donnell, but this was necessary as management were not represented at the appeal and Mr Logan needed to hear both sides of the story. The tribunal therefore believes that the disciplinary procedure was basically fair and that any confusion over the paperwork is not sufficient to render it unfair.

8. Accordingly the tribunal has decided that the applicant's dismissal was fair and his application is dismissed.

____________________________________

Date and place of hearing: 26 November 2001, Londonderry and

12 December 2001, Belfast

Date decision recorded in register and issued to parties: 8 February 2002