EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Felix Adeagbo – Appellant UD692/2013
against the recommendation of the Rights Commissioner in the case of:
Felix Adeagbo – Appellant
Mitie Facilities Management Limited – Respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr R. Maguire, B.L.
Members: Mr P. Pierce
Ms. N. Greene
heard this appeal at Dublin on 28th May 2014
Representation:
____________
Appellant(s): Mr Hugh Hegarty, SIPTU, Misc, Liberty Hall, Dublin 1
Respondent(s): Mr Tiernan Doherty, IBEC, Confederation House, 84-86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
This case came before the Employment Appeals Tribunal by way of an employee appealing the determination of the Rights Commissioner reference no. r-128543-ud-12/MMG dated 23 April 2014.
Respondent’s Case
The HR manager of the respondent company outlined to the Tribunal the services it provided to its clients and customers. A number of security officers including the appellant transferred to the respondent as part of TUPE on the 10 September 2012. Post TUPE the appellant received training and the training was signed off on.
The appellant was responsible for looking after a site which included a car park, shops, apartments and private tenants and this was a very important role. It was very important that the respondent followed procedures in relation to Health and Safety.
A number of people gained access to the car park at 1.00a.m. on Thursday 25 October 2012 which resulted in damage to a car. The appellant was on duty at this time. He was looking at U Tube and various websites on the respondent’s computer and this was forbidden. He did not notice that the car park was broken into. The clients paid a substantial amount of money in management fees to the respondent to safeguard their property.
The appellant had signed a policy regarding the use of IT equipment and some of the clients the respondent worked with have very confidential information. The appellant did not dispute that he was on U tube while he was working.
The reason that the appellant was dismissed was due to the fact that he spent time on the Internet while he should have been undertaking his duties and he falsified documents. At the time the appellant was using the website he had completed a document which indicated that all checks were done and this was not the case. The next day the owner of the damaged car reported it to the office.
She attended the appeal hearing but she did not dismiss the appellant. The employee who dismissed the appellant did not attend the Tribunal as he had to do exams. The appellant had received full training and he was aware what constituted gross misconduct. It was not the case that the appellant was tired as he was looking at a variety of sites on the Internet. The respondent recognised the fact that the appellant had twelve years’ service. The appellant had not carried out a patrol of the car park.
JR told the Tribunal that he upheld the appeal to dismiss the appellant. The car owner informed the respondent of the incident the next day. It was a very simple exercise to locate the incident on CCTV. The culprits had attempted to open the car door. It was not possible to look at every camera. Diligence and discipline were paramount in undertaking the appellant’s duties. The incident in the car park took place over a nine minute period.
In cross examination he stated that there was no obligation on the appellant to undertake a physical patrol. What the appellant did was a serious breach of trust and procedures. Security officers completed a health questionnaire prior to taking up duty.
A number of security officers have e mail addresses for client servers. Having background music on is acceptable while on duty. The appellant was replaced. The appeal hearing took place on the 19 November 2012.
Appellant’s Case
The appellant did not give evidence to the Tribunal due to ill health. His representative outlined to the Tribunal the efforts the appellant made to mitigate his loss.
Determination
The Tribunal finds that the prolonged neglect of his fundamental duty on the night in question and falsification of the documents initially to cover up for such neglect in this instant is gross misconduct. In this situation the Tribunal finds that the admitted acts of the appellant were gross misconduct which justified his dismissal. The decision to dismiss the appellant is fair and reasonable.
The Tribunal upholds the Determination of the Rights Commissioner and the appeal under the Unfair Dismissals Acts, 1977 to 2007 fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)