UD323/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM OF:                                                                                                                CASE NO.

Rodney Monks – claimant                                                                                         UD323/2012

against

ICTS (UK) Limited T/A ICTS - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:      Ms. O. Madden B.L.

Members:       Mr. A. O'Mara

                        Mr. J. Dorney

heard this claim at Dublin on 16th September 2013 and 3rd April 2014

Representation:

Claimant:        Mr Paul Henry, SIPTU, Liberty Hall, Eden Quay, Dublin 1

Respondent:    Mr Peter Redman, Northgate Arinso Employer Services,

                        Warwick House, Hollins Brook Way, Pilsworth, Bury, Bl9 8RR

Background

Dismissal is not in dispute in this case. The respondent provides security services for transatlantic flights at Dublin Airport. The claimant was dismissed for gross misconduct after allegedly failing in his security duties i.e. he failed to adequately watch ‘baggage bins.’ The claimant contends that even though he was flicking through a newspaper, there was no security risk as the baggage bins were sealed and in his view at all times. The claimant maintains that the proportionality of the sanction was unfair.

Respondent’s Case:

A Security Supervisor at the time of events gave evidence that he received the telephone call from the American Airlines (AA) manager. The client complained that one of the two agents in the baggage hall was leaning against the bin while reading a newspaper. The Supervisor sent another employee (RG) to cover and spoke to each of the agents individually. He reported the matter to the Operations Manager on the day. The Supervisor suspended the agents pending the investigation.

The hold baggage screening co-ordinator (PmcK) gave evidence of the complaint she received from the duty manager regarding the claimant on the 28^th of June 2011. The complaint concerned the claimant being observed by an AA Manager loitering over a baggage bin reading the paper. The claimant was suspended pending an investigation; this was confirmed by letter dated the 29^th of June 2011.

The investigation meeting took place on the 30^th of June 2011. The minutes of this meeting were read to the claimant but not given to him. As it was an investigation meeting and not a disciplinary meeting the letter of invitation states, ‘I would stress that this is not a disciplinary hearing and the statutory rights to be accompanied do not apply.’ The claimant admitted the allegation so PmcK recommended the matter proceed to a disciplinary hearing.

PmcK also asked the other staff member if he had been the person reading the paper as the original compliant did not specify which staff member it was. The other staff member said they give each other breaks if a flight is delayed and the claimant was reading the paper on his break. These are not authorised breaks; PmcK did not put this explanation to the claimant. The original note of the complaint made by AA was not put to the claimant. PmcK does not believe a complaint would have been made in the first instance if the baggage bins were sealed and loaded.

An Operations Manager (JP) conducted the disciplinary meeting with the claimant and the claimant signed the notes of that meeting. The Operations Manager reached a decision that the claimant’s actions constituted gross misconduct on the following grounds:

• failure to perform the allocated duties to any extent which constitutes dereliction of duty
• serious or wilful breach of security procedure

The claimant was dismissed from his employment and a letter to that effect issued to him. During cross-examination the witness confirmed that the complaint from American Airlines was received verbally.

It was put to the witness that the claimant did not see the notes of the investigation meeting until they were read at the disciplinary meeting. The claimant had not received a letter telling him that it was a disciplinary meeting that the witness would be conducting. For that reason the claimant believed that what he was attending was the continuation of the investigation meeting. The Operations Manager replied that the claimant had confirmed in the meeting that he had received the letter and that this was contained in the notes of the meeting.

In response to questions from the Tribunal, the Operations Manager stated that something could have been placed in the baggage bins if the claimant was not observing properly as the bins are covered with a taupe but not sealed. He added that the claimant had not observed the AA manager approaching.

The Station Manager (FmcE) gave evidence of the strict security policy in place with American Airlines who they were contracted to work for. The claimant was acting as a ‘baggage observer’ when the incident occurred that led to his dismissal. The claimant completed a total of 40 hours of training including the ‘observer’ module.

After the baggage is checked in, it proceeds to a secure area where it has to be observed to ensure it is not tampered with. Two people are on observer duty; one person to stay and watch the containers and then continue with them as they go out to the aircraft and a second to wait in case there is a late bag checked in. If the staff are due a break or need to leave for any reason they are replaced for the duration by someone else. The claimant was dismissed for:

‘your admittance to reading a newspaper whilst on duty on the 28^th June 2011, while you were supposed to be observing AA baggage.’

The Station Manager heard the appeal of the decision to dismiss the claimant. The claimant’s appeal was based on the proportionality of the sanction. The Station Manager upheld the decision to dismiss the claimant as his explanation was inadequate and ‘I couldn’t take the risk of a breach of security.’ The claimant had received full training, had admitted the offence and outlined that he was not aware that an American Airlines Manager was present at the time. The claimant’s actions constituted a breach of the following disciplinary procedures;

• Failure to perform the allocated duties to any extent which constitutes dereliction of   duty.
• Serious or wilful breach of a security procedure.’

It is normal practice to sign all disciplinary meeting minutes but FmcE cannot recall if this happened after the appeal meeting. FmcE does not recall the claimant objecting to the minutes.

Claimant’s Case:

RG gave evidence that he was asked to cover when the Security Supervisor spoke to the agents in the baggage hall. When RG went to the baggage hall he observed the claimant on one side of the bin and his colleague on the other and no individual could have infiltrated the bins. The claimant’s colleague was looking at his mobile phone. During cross-examination he confirmed that he attended the baggage hall after the incident with the newspaper was reported. RG confirmed that his employment with the respondent company was terminated for alleged gross breaches of security.

In response to questions from the Tribunal, RG stated that he has observed people reading a newspaper in the baggage hall when providing security for other airlines but not when providing services for American Airlines. It was his evidence that the baggage bins were sealed.

It was the claimant’s evidence that he was employed with the respondent company for four years without any previous disciplinary issues. It was the claimant’s case that he could still view the bins on the day in question and that the bins could not have been infiltrated. The reason he did not see the American Airlines manager was because she had approached him from behind.

The claimant attended the investigation meeting as outlined. When he subsequently received a telephone call to attend a further meeting he believed it was a continuation of the investigation meeting. He did not receive the letter from the company informing him that it was a disciplinary meeting.

The claimant disputed that he had admitted in the meetings to being “engrossed” in the newspaper or admitting that his actions were a dereliction of duty. It was the claimant’s evidence that it was common practice to read the newspaper in this area and he admitted to reading it. He stated that there was a second newspaper there which his colleague had been reading and the claimant had informed the company of this but his colleague was disciplined in relation to unauthorised breaks. The claimant gave evidence of his loss of earnings.

During cross-examination it was put to the claimant that he was informed at the outset of the disciplinary meeting of the nature of the meeting and that he was entitled to have a representative present. The claimant replied that he did not think at the time to say that he thought it was an extension of the investigation meeting.

In response to questions from the Tribunal, the claimant stated that he had received re-training and that it had emphasised security.

Determination:

Having carefully considered all of the evidence adduced, the Tribunal is firstly satisfied that in all of the circumstances of the case fair procedures were applied. The Tribunal is further satisfied that the decision of the company to dismiss the claimant was reasonable particularly due to the context and nature of the respondent’s business and the complaint made. The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)