A Dublin Bus driver sacked after his bosses decided he had broken its “zero-tolerance” policy on using a mobile phone behind the wheel twice in under a year is now back on the road working as a taxi driver, the Workplace Relations Commission has heard.
Yong Yue Wang was before the Workplace Relations Commission yesterday, pursuing a claim under the Unfair Dismissals Act 1977 in a bid to get his job at the public transport firm back following his dismissal for gross misconduct in September 2022.
The tribunal was told Mr Wang was already on a final written warning for an earlier mobile phone incident when a bus inspector reported seeing him driving a number 15B bus along Townsend Street in Dublin 2 with his left hand on the steering wheel and a mobile phone in his right hand in July 2022.
Mr Wang denied the inspector’s version of events and insisted in evidence that the phone always was in his pocket – but Dublin Bus’s case is that it was entitled to conclude he “was not telling the truth”.
The company’s barrister, Kiwanna Ennis BL, appearing instructed by Córas Iompar Éireann (CIÉ) solicitor Hugh Hannon, said the zero-tolerance policy on using mobile phones and other electronic devices was resisted by drivers’ trade unions but got the backing of the Labour Court in 2016, and provides for sanctions up to and including dismissal for even a single breach.
Joe Stobie, area operations manager at Mr Wang’s former base depot at Summerhill, Dublin 1, said the complainant “pleaded” for his job after admitting to driving a number 16 bus away from a stop in Harold’s Cross while holding his phone in November 2021.
A chief bus inspector in plain clothes reported seeing Mr Wang holding a phone in his right hand and hearing a “two-way conversation between the driver and the person on the other end”, Mr Stobie said – an act he called “not only illegal, but unsafe”.
Mr Stobie said Mr Wang explained to him during a disciplinary meeting in January 2022 that there had been a family emergency on that occasion. The driver had been “very open and honest” when they met and promised not to use his phone while driving, the witness said.
“I asked him if I took dismissal off the table would he accept my decision, and he gladly accepted that,” Mr Stobie said. Mr Wang received a three-day unpaid suspension and had a final written warning attached to his file, which was to last 18 months.
In July 2022 a second chief inspector reported that he saw Mr Wang holding his phone while driving a 15B bus down Townshend Street in Dublin 2.
“I observed Driver Wang – he couldn’t see me – his left hand was on the steering wheel – his right hand was down with a phone in his hand, I could clearly see it,” the inspector, David McCarthy, said in evidence.
He said that after speaking to Mr Wang when the bus reached Merrion Square, Mr Wang said: “Maybe you’ve seen my radio in my hand.”
Minutes submitted to the tribunal recorded Mr Wang telling an investigator that he might have been picking up the phone after it dropped from his pocket – and subsequently stating that he had placed the phone on the dashboard of the bus with his wallet and a Bluetooth speaker.
“I felt if he was listening to music with the phone face-up and an array of electronic devices on the dash, I’d see that as a flagrant breach of the safety policy,” Mr Stobie said.
Mr Stobie said a collective agreement with drivers’ unions precluded Dublin Bus from using CCTV from the driver’s cab in disciplinary cases without consent – an option Mr Wang had not taken up, Mr Stobie said.
Mr Wang’s barrister, Kieran Falvey BL, played the relevant footage for the hearing and said it was “useless” because his client’s right hand was out of sight throughout the relevant three-minute period.
Mr Wang’s evidence to the WRC, given via an interpreter, was that the phone had been in his back pocket at all times during the July 2022 incident.
Cross-examining the complainant, Ms Ennis argued said: “You didn’t want to use the CCTV was because you knew you had used your mobile phone and chief inspector McCarthy was correct.”
Mr Wang replied that he didn’t know the “procedure” for requesting the CCTV footage.
“You’re saying you did not know it was a criminal offence to use a mobile phone while driving?” Ms Ennis asked the complainant.
“He didn’t know,” the interpreter said.
“How many times did you use phone while driving?” Ms Ennis asked.
“Only once,” Mr Yang said.
In a closing submission, Ms Ennis said: “It’s very, very telling that [Mr Wang] didn’t use the CCTV in order to exonerate himself… in fact, the reason he came up with the falling off the dashboard line was because he thought the CCTV did show him using his phone.
“I think the evidence, it’s very clearly open to the employer to conclude Mr Wang was not telling the truth,” she added.
Mr Falvey argued there were “defects” in the Dublin Bus disciplinary procedures going back to the first incident, when he said Mr Wang’s right of appeal had effectively been “taken away” before the severity of the sanction was confirmed, he said.
He said it was clear Mr Wang, a Chinese national and not a native English speaker, also had the disadvantage of “some language barriers” and that the area manager ought to have recused himself from the second disciplinary process.
“It’s a technical appeal, it’s about the procedures and I don’t believe fair procedures were adopted in this case,” Mr Falvey said.
Questioned on his efforts to seek new work, Mr Wang said he had been unwell for a time in early 2023 but had secured a licence to drive a taxi and was now earning around €700 a week.
The adjudicator, Breiffni O’Neill, closed the hearing and told the parties he would issue his decision in a number of months.
