EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
Francis Oti -appellant UD1071/2013
against the recommendation of the Rights Commissioner in the case of:
Brink's Security Services Limited
-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. P. O'Leary B. L.
Members: Mr D. Moore
Ms. E. Brezina
heard this appeal at Dublin on 3rd October 2014 and 26th November 2014
Representation:
_______________
Appellant: Mr Hugh Hegarty, SIPTU, Misc, Liberty Hall, Dublin 1
Respondent: Mr. Brian Dolan, Peninsula Business Services (Ireland) Ltd.,
Unit 3, Block S, East Point Business Park, Dublin 3
This case came before the Tribunal by way of an employee appealing the decision of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, ref: r-128840-ud-12 JC.
An incident occurred on Tuesday the 26th of June 2012 that ultimately led to the claimant’s dismissal.
Respondent case
TG the site supervisor at the time of the incident told the Tribunal that the site in question was a large (up to 5k) site and there were numerous access points that had to have static security on them. He felt it necessary to put break rosters in place sometime around April/May 2012. An incident occurred on 26th June when the appellant was engaged with an altercation with JK. TG said that the first he heard of things was when the mobile jeep used by security and driven by JT came towards him and JK said that there had been an incident with the appellant who had struck him in the face with his hard hat. He got a brief outline from JT and told JK to go and write up a statement. He did notice a red mark on JKs face.
TG went to the gate and spoke with the appellant who was very agitated and said there was a conspiracy against him, also that everyone was racist towards him.
(Respondent’s Case continued from 3rd of October 2014)
The support manager (SK) gave evidence. His role in the disciplinary process was to investigate the allegation that the claimant struck JK with his hard hat. He was given statements from the claimant, JK, MF and a contractor (GT).
SK only spoke to the claimant to hear his version of events as they differed to the other statements. An investigation meeting was held on the 3rd of July 2012. SK felt it was hard to get clarity on the incident from the claimant. SK was aware that there was CCTV available of the incident but he did not check it. SK gave the statements and investigation notes to the HR department; he did not write an investigation outcome report. SK did notice that the handwriting on the statements were similar (except the claimant).
The National Contracts Manager (CM) gave evidence. CM’s role was to conduct the initial disciplinary meeting. An invitation to the disciplinary meeting was issued to the claimant on the 3rd of July after the investigation meeting. CM was given four statements; the claimant, GT, MF and JK.
(The statements from GT and MF have been deemed inadmissible by the Tribunal as the witnesses were not present for the hearing and the claimant was never given the opportunity to cross-examine the witnesses during the disciplinary process.)
A disciplinary meeting was held on the 12th of July 2012. CM found it difficult to get clarity on the incident as the claimant was providing information not relevant to the allegation. The disciplinary minutes recorded that: the claimant accused JK of racial abuse when the claimant refused to take his break early. The claimant approached the jeep JK was sitting in (and abusing him from) and confronted JK. JK instructed the claimant to hit him with his hard hat at which point the claimant backed off.’ This meeting was adjourned to check why the handwriting on the statements is the same and the allegation of racial abuse. (It was found that there was no substance to the allegation of racial abuse.)
CM stated that believed that during the meeting the claimant admitted striking JK on the face.
The minutes contained the word will instead of may which was an error, ‘he evidence is in front of me and on foot of that you will (may) be dismissed.’ As a result CM then excused himself from the disciplinary process in order to maintain the fairness of the process. CM believes that unlike the above the claimant’s admission could not be an error. The respondent concedes that due to the significant (uncorrected) error in the disciplinary minutes the reliability of the documents can be called into question. The respondent is unaware why the original handwritten notes of the meeting were not given to the claimant; the response to the error was for CM to excuse himself from the process. CM only noticed the error when the disciplinary minutes were circulated to him, HR and all of the respondent directors.
The decision maker and appeal officer have both left the respondent’s employment and are therefore unavailable to give evidence.
Claimant’s Case
The claimant gave detailed evidence of the incident on the 26th of June 2012 that led to his dismissal. The claimant was working a 7am to 7pm shift and was due to take a break at 9.30am. At 8.10am the mobile patrol jeep came to his station and JK informed the claimant that he had to take his break. The claimant informed them that his break was not until 9.30am, in response JK shouted and abused the claimant. The claimant approached the jeep with his hard hat in his hand and confronted JK. He did not strike JK; he backed away from the situation and reported the incident. He was then instructed to go home by TG. The claimant asked why he was to go home and said he wished to make a statement; he was not told why he was to go home only that head office would be in contact for a statement.
The claimant wrote his statement and sent it to the respondent. The claimant attended the meeting on the 3rd of July. The claimant attended the 12th of July disciplinary meeting but disputes any admission of striking JK on the face.
The claimant believes that the respondent had already decided to dismiss him at this meeting. When the disciplinary meeting was held by the second disciplinary officer the claimant was not given the opportunity to give his version of events. He was offered the opportunity to cross examine MF by phone but the claimant did not feel this was appropriate or that MF’s identity could be confirmed by phone.
The claimant gave evidence of his loss and his attempts to mitigate his loss.
Determination
The Tribunal was provided with limited, confused and conflicting evidence from the respondent. Witnesses, whose evidence was essential to the case, were not called by the respondent to give evidence to the Tribunal. The statements provided by the respondent were not written by the purported authors. On balance therefore, the Tribunal prefer the evidence of the claimant. The Tribunal is of the view that if JK had accepted that the claimant was not due a break and continued on his way, the incident resulting in the claimant’s dismissal would not have occurred, if such incident occurred at any time or at all.
The Tribunal find that the claimant was unfairly dismissed. The claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the claimant is awarded €30,000 in compensation. The Tribunal consequently vary the decision of the Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007, ref: r-128840-ud-12 JC.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)