UD622/2013

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                          CASE NO.

Sean Joyce - claimant                                            

                                                                                                                                   UD622/2013

against

The Roisin Dubh Pub Limited - respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms C. Egan B L

Members:     Mr T. Gill

                    Ms H. Murphy

heard this claim at Galway on 11th November 2014

Representation:

_______________

Claimant(s) :         Colman Sherry, Solicitor, The Square, Gort, Co Galway

Respondent(s) :     Barry Gavin, W B Gavin & Co, Solicitors, 4 Devon Place,

                              The Cresent, Galway

Respondent’s Case

The respondent operates three licensed premises in the west of Ireland and the claimant was employed as doorman/security personnel from 4 November 2011. He was licensed by the Private Security Authority. There were no issues with his work performance until the night of 28 October 2012.

The Tribunal heard evidence from (S), director of the respondent company in relation to the protocols involved in dealing with incidents in the bars. He outlined the general procedures for dealing with difficult customers at closing time when the premises are being cleared. In particular if a doorman is having difficulties with a customer he should swap with other doormen on duty to assist in dealing with the customer. He gave evidence that he was contacted by the bar manager on 29 October 2012 and informed of an incident that had occurred on the previous night involving the claimant. The incident was recorded in the incident report book whereby a complaint had been made by a customer (M) the nature of which was that the claimant had used excessive force in removing her from the premises at approximately 2.45am.

(S) gave evidence that he carried out an investigation into the matter and as part of his investigation he interviewed the claimant, the manager on duty, bar and security staff and (M) who had made the complaint. He knew (M) as she had previously worked for him for a period of time but denied that she was a friend of his. He also viewed CCTV footage as part of his investigation but nothing definitively could be gleaned from this footage. He gave evidence that during his interview with (M) she showed him bruising to her arms which she said had been inflicted by the claimant as he removed her from the premises. Following the conclusion of his investigative process he was satisfied that the actions of the claimant on the night in question were completely inappropriate. He concluded that the claimant had used excessive force and he was not entitled to put his hands on (M). He believed that the claimant’s actions had brought the company into disrepute.

He met with the claimant on 10 November 2012 and informed him that he was dismissed on the grounds of gross misconduct. He did not offer the claimant an opportunity to appeal this decision. He issued the claimant with a reference because he liked him and did not want to prevent him from gaining employment elsewhere. He was doing him a favour by giving him a reference and he is now sorry that he did so.

(M) gave evidence that she previously worked in the bar business and knows how it operates. On the night of 28 October 2012 she was socialising with a friend at the respondent’s premises. She began socialising at 11pm and had consumed two to three drinks during the duration of the night. At approximately 2.45am she was approached by the claimant as he was clearing the premises and he was very aggressive towards her. She told him that she was finishing her drink and was leaving. He returned about 5 minutes later and became increasingly aggressive. She had not given him any hassle and could not understand why he was treating her in such a manner. She asked him why he was being so aggressive and he then grabbed her by her arms and “bulldozed her to the door”. She refused to leave and demanded to speak with a manager which she did, making a complaint to him about the actions of the claimant. She considered taking a case against the respondent but decided against that course of action as she had worked there previously.

She denied that she was a family friend of (S) and denied that she was inebriated on the night in question. She was “manhandled from the premises” and complained about the claimant’s actions to the bar manager as she believed it was really important that he knew about the incident.

Claimant’s Case

The claimant gave evidence that he was working as a doorman on the night of 28 October 2012 with two colleagues. He and his colleagues were clearing the premises. At approximately 2.45am he approached (M) and her friend requesting them to finish their drinks and to leave the premises. He gave evidence that (M) was intoxicated and was abusive towards him telling him that she “would leave when she was ready to leave”. He gave evidence that she also used foul language towards him.

In accordance with the respondent’s protocol, he moved away and let his colleagues deal with her. He returned some minutes later again requesting her to finish her drink and to leave the premises. He told the Tribunal that she started to push him away aggressively. He then put his hands on her shoulders and walked her to the door. She was very aggressive and refused to leave the premises and he left and allowed his colleague (G) deal with the situation. He reported the matter to his manager who dealt with the matter at the door area. He continued with his duties and reported the incident in the incident report book.

The claimant gave evidence that he subsequently reported for work for a number of nights and carried out his normal duties. While doing so on the night of 1 November 2012 at 11.15pm he was told by the head doorman that (S) had said that he was sacked. He was told by the head doorman that he could finish off his working week and to finish up on the following Sunday night. He gave evidence that he had not had any contact with (S) by this stage. He told the Tribunal that he telephoned (S) on 7 November 2012 and requested a meeting which was then arranged for 10 November 2012. He met with (S) and explained the incident of the night in question and the actions of customer (M). He gave evidence that (S) replied that he “did not care and he was not going to give him his job back”. He explained that (M) was so aggressive that he had to use reasonable force to remove her from the premises and he did not use excessive force to do so. He told the Tribunal that the meeting with (S) only occurred at his (the witness’s) request and the meeting only lasted 5 to 10 minutes.

The claimant gave further evidence to the Tribunal in relation to the loss that he has incurred since his dismissal.

(G) gave evidence that he was working as a doorman with the claimant on the night of 28 October 2012. He gave evidence that he rotated with the claimant on two occasions as they attempted to deal with (M). He told the Tribunal that she refused to leave the premises and used foul and abusive language towards him. He gave evidence that when the claimant approached her again requesting her to leave she would not do so and pushed her finger into the claimant’s chest. The claimant then put his hands on her shoulders and walked her to the door. He believed that this was the correct course of action for the claimant to take.

Determination

The Tribunal carefully considered the oral and documentary evidence adduced at the hearing. There was a clear conflict of evidence between the parties concerning the events of the night of 28 October 2012 and the procedures adopted in effecting the claimant’s dismissal. The Tribunal is not satisfied that the investigation carried out by the respondent was sufficient in the circumstances. There was no written documentation provided to the Tribunal to support the respondent’s contention that a thorough investigation was undertaken. The Tribunal also notes that no avenue of appeal was offered to the claimant.

In those circumstances, the Tribunal finds that the claimant was unfairly dismissed and awards compensation in the sum of €11,000.00 under the Unfair Dismissals Acts 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)