The High Court has upheld a Labour Court decision ordering the re-engagement of a Luas driver, who had been dismissed for “moonlighting” as a taxi driver. 

What is “moonlighting”?

The term “moonlighting” is used to describe a situation where an employee undertakes additional work outside his/her primary source of employment, effectively double jobbing.

Whilst there is no specific legislation prohibiting moonlighting, usually employers will prohibit employees undertaking outside work through their contract or policy documentation. Moonlighting can give rise to concerns from an employer’s perspective, ranging from health & safety risks due to over-worked and fatigued employees to other concerns such as poor performance and inadequate rest periods which may breach working time legislation. These issues are further detailed in our article here. 

What happened?

Transdev Ireland (Transdev), the Luas operator, discovered through a private investigator that their driver, Mr Caplis, was moonlighting by night as a taxi driver. Transdev dismissed him for gross misconduct. Mr Caplis’ contract with Transdev expressly prohibited him from engaging in other paid employment without his employer’s permission. 

Mr Caplis took an unfair dismissal claim to the Workplace Relations Commission (WRC) arguing that he only occasionally worked as a taxi driver and such activity did not breach his employment contract. Transdev defended its decision to dismiss, pointing to the safety-critical nature of the role of a Luas driver, with responsibility for the safety of passengers and other motorists and pedestrians. The WRC agreed with Transdev.

Appeal to the Labour Court 

Mr Caplis appealed this decision to the Labour Court in 2019. The Labour Court, in overturning the WRC decision, found that Mr Caplis had been unfairly dismissed and ordered his re-engagement, with his absence to be deemed a period of unpaid suspension. It was held that dismissal for breaching the policy against engaging in other paid employment, by occasionally moonlighting as a taxi driver, was a disproportionate response by Transdev.  

Appeal to the High Court 

Transdev appealed this decision to the High Court (Court) on a point of law pursuant to section 10A of the Unfair Dismissal Acts 1977 – 2015 (UD Acts) and section 46 of the Workplace Relations Act 2015. The grounds of appeal were as follows: 

1. The Labour Court had failed to rationally address the relevant law (specifically section 6 of the UD Acts)
   The Court (Humphreys J) accepted that the Labour Court had omitted to include an analysis of the relevant statutory provisions or related case law in its determination. However, the Court concluded that such omission was “a harmless error on these particular facts” and that to “cut to the chase” of the matter was not fatal to its finding. 
2. The Labour Court had failed to rationally address the relevant facts of the case 
   The Court acknowledged that it may not have found the actual dismissal in this instance unfair, however the task of the Court was to review the legality of the decision taken by the Labour Court. Ultimately, the Court found that the Labour Court had correctly analysed the relevant safety issues, railway safety legislation and the key elements of evidence. The Court acknowledged that it is “always possible to suggest that a decision could have been more detailed or more reasoned, but what a losing party is entitled to is the gist of the reasons” which, in this instance, was provided by the Labour Court.
3. The Labour Court had failed to provide adequate reasons for the order of re-engagement
   The Court concluded that re-engagement after an unfair dismissal does not require any express justification because it flows naturally from the finding of an unfair dismissal itself. The Court observed that “things might have been different” if Transdev had made a “detailed fight” on the issue of remedy or submitted evidence that re-engagement would have been “disruptive”.

The Court dismissed Transdev’s appeal and affirmed the re-engagement of Mr Caplis.

Key take-aways for employers

Proportionality of sanction – the spotlight in this case is on proportionality of sanction. The Court’s decision calls into question the ability of an employer to rely on a “zero tolerance policy” regarding occasional additional work without having regard to the reasonableness of the sanction in all the circumstances. 

Working time obligations – employers should ensure their employees working hours and rest breaks are in line with working time legislation and keep adequate records in this regard. This is especially relevant in the current COVID-19 era where it can be difficult to track and record hours and breaks where employees are working remotely. 

Appeal to the High Court – the Court analysis provides useful guidance for parties considering an appeal on a point of law. As illustrated above, an appeal should not be made primarily on the correctness of the prior decision, but rather the legality of how the decision was reached. The decision also highlights the importance of employers adequately addressing before a court, the remedies available to a potentially successful employee. Where relevant, the employer could  argue that re-engagement could be disruptive to the company, or that re-engagement would be more appropriate that compensation.   

Contributed by Ruth Fahy, Therese Chambers