by Gordon Deegan

A Luas ticket inspector who threw a 'wild swipe' in the direction of youth after being called a ‘Paki bastard’ has lost out in his unfair dismissal claim.

This follows the Labour Court finding that Adil Shafiq’s claim for unfair dismissal from Luas operator, Transdev is not well founded.

The ruling by the Labour Court upholds an earlier ruling by an Adjudication Officer at the Workplace Relations Commission (WRC), Ms Penelope McGrath dismissing Mr Shafiq’s unfair dismissal claim in January.

Ms Shafiq was appealing the WRC ruling to the Labour Court where all parties can be named - unlike in WRC cases.

Disciplinary proceedings were brought against Mr Shafiq after a youth complained to Transdev that he had been punched on the back of the head by a Luas staff member on August 24th 2015.

The youth said that he had paid for his Luas ticket and had no prior interaction with the staff member on the night.

Employed on the Luas since 2008, Mr Shafiq was subsequently dismissed by Transdev for gross misconduct.

In his evidence before the Labour Court, Mr Shafiq said that he had been operating as a Revenue Protection Officer (RPO) on the Green Luas line on August 24th at around 10pm.

Mr Shafiq said that he boarded the St Stephen’s Green-bound Luas at Cowper and there was a group of youths on board who did not have tickets.

Mr Shafiq said that he was required to issue them with a Standard Fare Notice and in response, some of the youths made rude finger gestures to him while others pretended to be asleep or were drinking alcohol from cans.

Mr Shafiq then asked this group of youths to disembark at the next stop and in response, he was verbally abused and called a ‘Paki bastard’.

Mr Shafiq admitted he had raised his hand behind one of the youths but denied that he hit, threatened or verbally threatened him.

Mr Shafiq told the court that he had felt threatened by the gang of youths and was stressed.

On viewing the CCTV footage, the union shop steward with Mr Shafiq said: “You can see the punch being thrown but it never landed, it was a wild swipe.”

On behalf of Mr Shafiq, James Doran BL told the Labour Court that the decision to dismiss his client “was disproportionate” as Transdev “had failed to take account of his client’s prior years of service and the stress he had been experiencing that day”.

In its findings, the Labour Court found that the CCTV footage of the incident undoubtedly shows Mr Shafiq “acting in a manner that is totally at odds with the conflict management training that he fully accepts he received periodically throughout the course of his employment”.

The Labour Court stated: “Instead of stepping away from a situation of potential conflict in order to de-escalate the situation, as he had been trained to do, the Complainant became aggressive and at the very least attempted to assault a member of the travelling public.”

The Labour Court stated that it is not clear from CCTV footage whether or not Mr Shafiq’s fist or the object he held in his clenched fist, connected with the member of the public.

As a result, the court found that it was reasonable for Transdev to conclude that Mr Shafiq– by engaging in actual or threatened physical violence against a Luas passenger -seriously misconducted himself such as to warrant the initiation of a disciplinary process.

The Labour Court stated that it accepts that Mr Shafiq had been taunted by a number of LUAS passengers and may have been the victim of racial abuse.

The court stated: “Nevertheless, he was employed in a responsible, customer-facing role. He had accrued considerable experience of working in an undoubtedly, at times, difficult and challenging job.

"However, he had been provided with regular and comprehensive conflict management training in order to equip him to deal with difficult situations and customers.”

The Labour Court also found that the disciplinary process was conducted substantially in accordance with procedures agreed with SIPTU and that Mr Shafiq’s complaint of unfair dismissal is not well founded.