UD463/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                    CASE NO.

Jason Kearney            -claimant

                                                                                                                            UD463/2013

against

Flexhaven Limited     -respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms D.  Donovan B.L.

Members:     Mr J.  Horan

                     Mr A.  Butler

heard this claim at Carlow on 23rd January 2014 and 6th January 2015

Representation:

Claimant:        On the first day of hearing:                            Mr. Niall Dodd B.L. 

On the second day of hearing:                       Mr. Simon McElwee,

Joseph P Farrell, Solicitors, No 1 Maryborough Street, Graiguecullen, Carlow, represented the claimant.

Respondent:    Ms. Julie Galbraith, Eversheds, One Earlsfort Centre, Earlsfort Terrace, Dublin 2

Background:

The respondent company operates a bar and nightclub complex.  The claimant was employed as a member of the security team since 2009 and his employment record was without disciplinary issues at the time of dismissal in December 2012.  Training details for the claimant were opened to the Tribunal and were accepted by both parties.

Summary of evidence:

On 17 December 2012 at 1.30am the claimant’s colleague requested the assistance of the claimant and two other colleagues in removing a patron from the premises.  The claimant asked the patron to leave but he refused.  The claimant placed his hand on the patron’s lower forearm and he and his colleagues began to walk the patron towards the exit when the patrol fell.  It was the claimant’s evidence that at the time he was unaware of the reason for this but he later viewed the CCTV footage and realised that one of his colleagues had pushed the patron.  When the patron was on the floor the claimant placed his knee on his lower back for a few seconds.  When they lifted the patron from the ground they carried him towards a hallway and a flight of stairs leading towards the exit.  The claimant placed his hands under the patron’s shoulders in the hope that the patron would walk down the stairs.  However, the patron fell forward when he stood up and the claimant thought he was going to fall down the stairs so he grabbed the patron’s clothing.  When the patron collapsed once again halfway down the stairs the claimant knew that something was wrong and notified the first aid officer to attend.  At the time all the claimant knew was that the patron was struggling to breathe.  The claimant completed an incident report form and was the only one of the four employees involved in the incident to do so.  During cross-examination the claimant accepted that at the appeal hearing he had agreed the whole incident was serious and apologised for his part in it.

The Tribunal viewed the CCTV footage of the patron being removed from the premises.

The Operations Manager was recalled on the second day of hearing.  He said he was informed of the incident by the Duty Manager.  He discussed the matter with the respondent’s human resources consultant and after viewing the CCTV footage and reviewing the incident report it was decided that disciplinary meetings were warranted due to the apparent seriousness of the incident.  The employees were suspended pending the outcome of this process. 

The claimant’s disciplinary meeting was held on 24 December 2012.  Following this meeting the Operations Manager reached a decision that dismissal was warranted as the claimant kept his knee on the back of the patron and held the patron’s hood which blocked his airways.  When the first-aid officer arrived on the scene the claimant did not advise him of what had occurred and why the patron was having a breathing difficulty. 

During cross-examination the Operations Manager confirmed that he reached a decision to invoke the disciplinary procedure before meeting with the claimant about the incident.  An outside report was commissioned regarding the incident and the claimant was informed that the Operations Manager was awaiting this report but the Operations Manager made the decision to dismiss the claimant without having sight of this report. The witness accepted that another security officer deliberately tripped the patron causing him to fall forward.  He also accepted that the claimant was the first to call SD the first-aid officer.

The human resources consultant said she felt the patron was asphyxiated and that proper procedures were not followed in removing the patron from the premises.  The human resources consultant stated that she saw the claimant in the CCTV footage hold the patron’s hood on a number of occasions and she believed this contributed to the asphyxiation of the patron which could have led to a more serious incident.

The two directors who jointly heard the appeal of the decision to dismiss gave evidence to the Tribunal.  The minutes of the appeal meeting held on 18 January 2013 were opened to the Tribunal.  NM, one of the directors stated that the CCTV footage was viewed and discussed with the claimant and the claimant realised the seriousness of the incident.  At the appeal meeting the claimant stated that now he realised that the patron was choking and that he, the claimant, had contributed a certain percentage to that.  The claimant also apologised for his role in the incident.

The director stated in evidence that it is his duty to take care of both patrons and staff.  In making the decision to uphold the decision to dismiss the claimant he considered the CCTV footage, the minutes of the disciplinary meeting held with the claimant and the discussions he had with the claimant.  In addition he read the commissioned report which concluded that the four employees had contributed to the choking of the patron (the claimant was provided with a copy of that report just before the appeal hearing began), however the director relied mostly on the CCTV footage and what the claimant had said to him at the appeal hearing. 

In reply to questions from the Tribunal the director stated that the patron should not have been removed from the premises in the first instance but when he was removed it was carried out incorrectly and the incident escalated out of control.

A second director (SM) who also heard the appeal stated that the claimant did not carry out his duties as he should have on the night in question.  The patron should have been “talked down” and SM was horrified when he viewed the CCTV footage.  It caused difficulty for the respondent to dismiss half of its security staff so close to the busy Christmas period but the incident was considered serious by the respondent company.

The claimant was informed that the appeal was unsuccessful by letter dated 21 January 2013.  He gave evidence of loss and details of his new employment. 

Determination:

Having considered the evidence of the parties adduced at the hearing and the legal submissions the Tribunal finds that the respondent had an obligation to investigate the incident which occurred on 17 December 2012 and thereafter to carry out the disciplinary procedure against all or any of the parties involved should it consider same to be necessary.

However, the Tribunal finds, albeit that the respondent acted in good faith and with good intention, the investigatory stage was inadequate and the investigatory stage and the disciplinary stage in the claimant’s case were conflated and to this extent the claimant was not afforded fair procedures.

The Tribunal further finds that the respondent did not consider any alternative sanctions.

On its own evidence, the respondent considered the claimant to be an affable non-violent man, and had a long and good working relationship with the claimant both in his role as a security man and otherwise and accepted that the claimant had not acted with intent.  The Tribunal found the claimant to be remorseful for both the incident which occurred and for any part he may have played in it.

Regarding any part played by the claimant in the incident the Tribunal notes that the only witness who was present when the incident occurred was the claimant and accordingly the Tribunal must accept the claimant’s evidence that he only had his knee against the injured party momentarily and that it was not done with undue force nor in order to inflict any injury.   The Tribunal also accepts the claimant’s evidence that he grabbed the injured party to save him from falling.  It is unclear from the video evidence and the stills whether the claimant caught the injured party by his jacket or by the hood of the jacket but in any event the Tribunal accepts that whether it was the jacket or the hood that the claimant caught he did so in the immediacy of the situation in order to save the injured party from falling down the stairs.

Accordingly, the Tribunal finds in the particular circumstances of this case that a lesser sanction than dismissal would have sufficed.

The claim under the Unfair Dismissals Acts 1977-2007 succeeds and the Tribunal awards the claimant compensation in the amount of €10,000.  In calculating the level of award the Tribunal took into account the failure of the claimant to mitigate his losses and whereas the Tribunal accepts that the incident affected the claimant’s desire to continue in security the Tribunal finds it was more the incident per se that caused this rather than how the respondent handled the matter.  The Tribunal also took into account that although the reason for the dismissal may have affected the claimant’s prospects of obtaining alternative employment this did not relieve him of the obligation to at least seek to mitigate his losses.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)