UD2/2013

EMPLOYMENT APPEALS TRIBUNAL

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms P. McGrath BL

Members:     Mr T. O’Grady

                    Mr F. Keoghan

heard this claim at Dublin on 24 February 2014

Representation:

Claimant:              

                     Mr Niall Philips, SIPTU, MISC, Liberty Hall, Dublin 1

Respondent:        

                     Mr Tim O’Connell, IBEC, Confederation House,

                     84/86 Lower Baggot Street, Dublin 2

Determination:

The Tribunal has carefully considered the evidence adduced, the documentation presented and the legal submissions made. This matter comes before the Tribunal on foot of a recommendation of a Rights Commissioner R-121470-UD-12/DI dated 10 December 2012. This is a de novo hearing.

The claimant’s employment was terminated on 24 January 2012 following an internal investigation, disciplinary and appeal process. The claimant was dismissed by reason of gross misconduct which was sanctionable only by way of a dismissal.

The claimant has consistently maintained her innocence with regard to the allegation of gross misconduct made although it does appear that at the appeal stage more emphasis was placed on the severity of imposing a dismissal on an employee with an unblemished five year record.

The claimant worked as a security officer with the respondent employer company. The claimant had been employed for upwards of five years and had had no previous disciplinary issues. The claimant worked nightshift which involved putting in twelve-hour shifts from 7-00pm to 7-00am. The site in question would be one of the respondent’s more prestigious clients and security sensitivities were high at the time as a number of break-ins had occurred in not too distant past. In the run-up to the events under scrutiny here, the claimant said that she had completed up to four night shifts back to back and that she had got home on the morning of 16 January 2012 and was expected back to work at 7-00pm that evening for another shift, her fifth.

That evening the claimant was slightly late arriving although she had been collected by her colleague Sal. There were several other employees on site including a few from the day shift, the claimant’s immediate supervisor (CC) and the colleagues with whom the claimant would be working with for the next twelve hours.

As it happens, the safety and security manager (MK) came to the site to procure ticket print outs from CC. MK gave evidence to the effect that his attention was drawn to the fact that the claimant needed observing. MK stated that the claimant seemed “out of sorts”, “unsteady” and “dishevelled”. On questioning the claimant said she was sick.

MK said he noted a smell of alcohol in the room and was concerned that the claimant might be under the influence of alcohol. MK interviewed the claimant and the evidence at this point differs between the parties insofar as MK says the claimant had said she’d had some wine earlier in the day, a fact the claimant denies.

It is noted that although CC was unavailable to give evidence to the Tribunal that CC’s statement indicates that the claimant had said to CC that she had had a glass of wine at the end of her last shift and before going to bed for the day. It is further noted that the only other statement relied upon by the respondent, that of MA, makes no reference to the smelling of alcohol at all. MA does say that he observed the claimant with her head down on her arms.

On the evening in question MK formed the impression that the claimant was not fit to perform the duties expected of her and she was sent home with CC dropping her off close to home.

The claimant in evidence indicated that she had told MK and CC that she was sick, that she tried to get someone to cover he shift and welcomed the fact that she was sent home as she felt too ill to put in a twelve-hour shift. The claimant did not go so far as to say that her behaviour was erratic or unsteady but that she had certainly been feeling unwell.

The claimant was called to an investigation meeting on 20 January 2012 and was allowed to bring her very able SIPTU representation. The meeting was conducted by SMcD the respondent’s HR manager and minutes of the meeting were available to the Tribunal. At the meeting the claimant was presented with the statements of CC and MA. It is clear that other potential witnesses were also interviewed although what they had to say was not recorded and not referred to. The claimant indicated that she had been sick on the evening in question and produced a medical certificate showing a viral infection had been diagnosed on 17 January 2012. Later on in the course of the meeting it seems that MK’s statement was also handed out as it had just arrived.

In the course of the investigation meeting the claimant denied that she had been drinking alcohol though confirmed that she had poured a glass for herself that morning at the end of her shift. In her evidence the claimant said that she never drank any wine even at the earlier time. The claimant has consistently maintained that she was sick.

Two further issues were raised by the claimant’s representative. The issue of pertinent CCTV footage was raised together with the written statements of other security officer personnel present that evening who had been interviewed.

It is noted by the Tribunal that SMcD subsequently had an opportunity to look at the relevant CCTV footage and found the contents to be “inconclusive” although he noted the claimant did at some point have her head in her hands – as per the statement by MA.

SMcD did not make any attempt to show the CCTV footage to the claimant and it was not unreasonable therefore for the claimant to assume that the CCTV did not disclose the unsteadiness and dishevelment and generally unacceptable demeanour described in the statements.

The matter of the CCTV having been viewed was discussed at a further disciplinary hearing on 24 January. At this same meeting the claimant was again told that there would be no further statements made by the other witnesses present on the night in question. In his evidence before the Tribunal, SMcD indicated that he had gone back to his three original witnesses and put some points to them that had been raised at the meeting on 20 January. These further investigations were not documented and the claimant’s representative indicated that he had not been told these follow up meetings had taken place. In his evidence, SMcD indicated that this was primarily because the witnesses had not changed their statements.

At the end of the meeting on 24 January 2012 the claimant was found guilty of gross misconduct and dismissed. SMcD relied on “the opinion of all staff that she was under the influence of alcohol” - which is at variance with the fact that only half the available staff gave statements.

In reaching a decision the Tribunal must be mindful of the seriousness of the allegations made. In effect, the claimant was being accused of turning up to work inebriated and unable to carry out her duties. In such a serious case the claimant and thereafter the Tribunal must be able to consider all the available relevant evidence. There can be no doubt that in these circumstances certain relevant evidence was withheld and yet seemed to be getting relied upon. So, for example even at the appeal stage the managing director handling the appeal alluded to “unofficial statements” which he had clearly had access to at some point during his handling of the appeal.

On balance where the outcome of an investigation is going to be dismissal for gross misconduct the onus has to be with the investigator to ensure that all elements of the investigation are transparent and openly considered.

The Tribunal can never know whether the claimant had alcohol taken before turning up for work on 16 January 2012. However the Tribunal can certainly be critical of the subsequent investigation which was woefully inadequate, hurried and one-sided.

Some confusion arose as to the grounds of appeal which should have been dealt with at the appeal stage but it could never make sense that a claim for leniency in punishment proposed by the claimant would sit comfortably with an acceptance and admission of intoxication in the workplace.

On balance, the Tribunal accepts that the manner of the dismissal was unfair in all the circumstances. Accordingly, the recommendation of the Rights Commissioner is upset and the Tribunal awards €22,500-00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)