Ruling Bus driver who posted video saying drivers would not collect fares over Covid concerns fairly dismissed
WRC adjudicator Caroline Reidy dismissed bus driver Noel Toner’s unfair dismissal action against Go-ahead Transport Services (Dublin) Limited trading as Go-Ahead Ireland
A decision by a private bus operator to dismiss a driver for posting a video on Facebook while in uniform outlining his workplace safety concerns over Covid-19 was fair, according to the Workplace Relations Commission.
WRC adjudicator Caroline Reidy dismissed bus driver Noel Toner’s unfair dismissal action against Go-ahead Transport Services (Dublin) Limited trading as Go-Ahead Ireland.
Mr Toner had claimed he was penalised and dismissed for making a representation to his employer on a health and safety matter under Under Section 28 of the Safety, Health and Welfare at Work Act.
In her ruling, Ms Reidy found that Mr Toner posting such a video on social media without first engaging with the company to address his concerns “is not acceptable or appropriate for an employee to do”.
Ms Reidy stated that Mr Toner did not follow correct procedures in raising his grievances.
Mr Toner posted the video on Facebook on March 29, 2020, one day after then Taoiseach Leo Varadkar announced further lockdown measures to deal with the spread of Covid-19.
In the video, Mr Toner said he operated the 18 and 76 bus routes on a daily basis.
He said drivers “are afraid to come to work, which is understandable at these times, some partners are crying begging with drivers not to go to work. This is really bad, but we are here”.
In response to Covid-19, Mr Toner said drivers will not be letting anybody in the front doors and everybody will access through the middle and depart through the middle doors.
He said: “We won’t be asking anybody to come up and pay their fare as it's less than two metres apart.”
He said: “So today we are asking everybody to share this and get this out as far as possible. We are not doing this for popularity, we are not doing it for thumbs up, we are not doing it for likes, we are not doing it for the comments.”
During the course of the video, Mr Toner also made allegations concerning the amount of hand sanitizer provided to each driver by the company and also claimed the bus company had not put in any restrictions for social distancing.
Mr Toner was summarily dismissed on April 8, 2020, for posting the video.
In the letter of dismissal following an investigation, Go Ahead Ireland told Mr Toner that by posting the video he brought “the company into disrepute with an intent to cause operational issues at an extremely difficult time for the company and country as a whole”.
The company told Mr Toner that he indicated in the video that the company was not following any recommended guidelines nor taking the health and safety of colleagues and/or passengers into consideration.
The letter stated: “This is not the case and I can confirm the company has been working closely with the National Transport Authority regarding all measures in order to provide a safe working environment.”
The letter stated that it is apparent from the video that a lot of the content “is being directly critical of the company in a public posting, with you being clearly identifiable as a company employee”.
It said: “You took no steps to clarify or check any of the items you discussed in the video, and as such made comments about the company, and its practices, on social media without having any foundation to know if your comments were veracious.
“Whilst I appreciate you have stated you would not repeat the action of posting on social media and have upon reflection decided it was the wrong decision, the actions cannot simply be reversed.
“Subsequent to your video, customers contacted us via social media after believing the misinformation you posted and have stated they will not be using our services again. In this regard you have clearly brought the company into disrepute without having a genuine or justifiable reason to do so.”
The company told Mr Toner - attached to the company’s Ballymount depot - that the posting of the video “was wholly disproportionate when you could have reasonably discussed your concerns with the company as many other colleagues have been during this difficult time”.
It told him he was not dismissed for raising concerns about his safety at work but for breaching the company’s social media policy, inciting others to ignore company rules/procedures and failing to adhere to company rules relating to the accounting of revenue.
Represented by the National Bus and Rail Union (NBRU), the union argued that Mr Toner’s summary dismissal “was the ultimate penalisation for raising genuine, real concerns for his safety, and the welfare of his family, colleagues, and customers at the beginning of the biggest global pandemic in 100 years”.
The NBRU said it was clear throughout the correspondence with the company that the firm had no regard to the serious nature of the pandemic and real fears expressed by Mr Toner for his safety and that of his family.
The union also claimed that it was never detailed prior to or during the process what was misleading about the comments Mr Toner made on the video and what parts were deemed inappropriate.
The union also claimed that no evidence was provided that Mr Toner had brought the company into disrepute.
The NBRU alleged that Mr Toner had been wrongly suspended for 10 weeks previously and received an apology from a very senior manager for that treatment.
The union said it believed that was the motivation behind the summary dismissal, and not a short video expressing concerns over health and safety during a global pandemic.
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