WRC Finds Dismissal of “Moonlighting” LUAS Driver to be Fair

A recent ruling by the WRC in the case of a LUAS driver who was ‘Moonlighting’ as a taxi driver highlights the need for employers to put in place a policy on Double Employment or Moonlighting and potentially make it a grounds for gross misconduct where the risks involved with a person working excessive hours may pose a high risk to the employee and others.

Background

The case came about when it was reported to Transdev that a LUAS driver in their employment was driving his wife’s taxi during his ‘downtime’.

Following this tip-off, Transdev went about hiring a private investigator to put the driver in question under surveillance over two evenings. The investigator witnessed the employee accepting multiple fares and hailed down the driver to become a passenger in the taxi.

Transdev went about investigating and following a disciplinary process and two appeals, the LUAS driver’s employment was terminated following a finding of gross misconduct.

During the investigation, the employee stated that he could not say how many times he had driven his wife’s taxi and that it was done on an ‘ad-hoc’ basis.

Transdev viewed the additional work being carried out by the driver as a threat to their capacity to carry out his role as a tram driver. Transdev also pointed out that the employee’s contract of employment made provision against any ‘moonlighting’ work and that the sanction was proportionate due to a collective agreement in place with the Driver’s Union that such conduct would be viewed as Gross Misconduct.

Determination by the WRC

The driver did not accept that his actions challenged his role as a LUAS driver, he felt that the sanction was disproportionate and brought a case of unfair dismissal against Transdev to the WRC.

The driver also argued that the manner in which the ‘tip-off’ came to Transdev was suspicious due to the level of detail supplied as to his movements and knowledge of his wife’s business and therefore must have been made maliciously.

The WRC found that while the tip-off was indeed suspicious, it was beside the point and that Transdev had a duty to apply its rules regardless of the motives of the person reporting an alleged breach and found the dismissal to be fair.

The adjudicating officer also stated that ‘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’ and that ‘any external work unknown to the company in addition to permitted overtime would create an even greater risk to passenger safety’.

Key Learning for Employers

This case highlights a number of areas to be mindful for employers but perhaps the most important, the necessity for policies to be put into place protecting against threats to your organisation, its employees and its customers.

The potential issues with employees carrying out multiple roles and working excessive hours are numerous and pose a significant threat to your business.

An employer could be found in breach of their duties with regard to health & Safety via The Safety, Health and Welfare at Work Act, 2005 if they have not taken reasonable steps to ensure employee rest periods are being adhered to.

In addition to this, The Organisation of Working Time Act also details minimum daily and weekly rest periods for employees, with the Labour Court imposing a positive duty on employers to not only provide for minimum rest periods but also to ensure that they are actually observed.

It should be noted that there is no legislation on Moonlighting or Double Employment and so it is imperative that it is covered by contractual law via an employer policy.

If you have any questions in relation to this case or policies on Moonlighting or Double Employment, please contact our advice line on 1890 253 369

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Nora Cashe

Peninsula

Nóra studied Law in Griffith College Dublin and qualified as a Barrister in 2008, practising in the area of Criminal law. She is also member of the Irish Employment Law Association.

Nora has extensive experience representing clients at Employment Tribunal hearings, Conciliation / Mediation meetings before both the Workplace Relations Commission and the Labour Court. 

Nóra is a member of the Irish Employment Law Association and engages with the WRC Adjudication Service as part of their stakeholder engagement forum.

Deiric McCann

Genos International Europe

Deiric McCann leads Genos International Europe – The EU division of a world-leading provider of emotional intelligence solutions. 

With over two decades experience at the highest levels of management, Deiric supports clients to develop the resilience, emotional intelligence, psychological safety and engagements of their employees.

Rhiannon Coyne

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David Begg

Workplace Relations Commission

David Begg was appointed Chairperson of the Workplace Relations Commission (WRC) in January 2021.

David is also a professor at Maynooth University Institute of Social Sciences. Mr Begg’s extensive history in the trade union movement included leading the ESB Officers Association and Irish Congress of Trade Unions, stepping away from the latter in 2001 to chair international aid agency Concern.

David Begg was also previously a director of the Central Bank of Ireland between 1995 and 2010.