The High Court has restrained Bus Átha Cliath/Dublin Bus from holding a bus driver’s disciplinary appeal until it provides particulars of one allegation and permits potentially relevant witnesses to attend, subject to a stated exception for illness incompatible with giving evidence.
In a judgment delivered on 27 January 2005, Mr Justice Clarke refused the driver’s requests for interim orders requiring salary payments and a return to active duties. He said the disputed evidence did not allow the court to decide at this stage whether suitable work was available. The driver had been on sick leave since December 2002 after injuries to his lower spine.
The judge said the driver might succeed at trial if he established a contractual term, arising from custom and practice, that the company would provide appropriate work to help him return, and showed that the company had breached it. But the court could not resolve the disputed evidence about available routes at an interlocutory hearing. The driver’s contractual sick-pay entitlement had expired, and the unpaid salary was not the result of a disciplinary process. The judge said the trial of the return-to-work issue should be expedited.
The disciplinary complaints included allegations that the driver took part in employee representation while medically unfit and was involved in a protest or disclosure of company information. The judgment records these as allegations and does not decide whether they were true. The disciplinary process had resulted in a dismissal finding, which the driver appealed.
The court found an arguable case that the company should have provided reasonable details of the information it alleged had been wrongfully disclosed before the formal disciplinary process began. It also found an arguable case concerning the treatment of a person who may have been a relevant witness. The initial hearing had been adjourned after an objection to that person’s attendance because he was certified sick. The judge said sickness certification alone would not justify excluding a witness unless the illness or disability was inconsistent with attending as a witness.
The injunction requires the company to provide the requested particulars concerning the second complaint. It does not require the company to supply the requested documents. It also requires that a witness the driver wishes to attend, and who may have relevant evidence, be allowed to do so unless the witness’s certified illness is inconsistent with giving evidence.
The judge made no order at that stage about the appeal board’s composition. He indicated that the driver appeared contractually entitled to a three-person board including a trade union representative, and gave liberty to apply if efforts to identify an appropriate union nominee failed.