UD1119/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                              CASE NO.

John Kinsella                                                                                                  UD1119/2012

- claimant

against

Securitas Security Services Limited

- respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Ms O.  Madden B.L.

Members:     Mr. B.  Kealy

                     Mr. M.  O'Reilly

heard this claim at Dublin on 8^th November 2013

                                          and 29^th May 2014

                                          and 20^th October 2014

Representation:

Claimant(s) : Mr. Eamon Marray BL instructed by:

          Mr Joseph Ritchie, Donal M. Gahan, Ritchie & Co, Solicitors,

          36 Lower Baggot Street, Dublin 2

Respondent(s) : Mr. John Barry, Management Support Services, The Courtyard, Hill Street,

  Dublin 1

The determination of the Tribunal was as follows:-

This determination should be read in conjunction with UD1124/2012 as both claims were heard in tandem.

Background:

The claimant was employed as a Security Officer from the 9^th October 2006 until his dismissal on the 28^th May 2012.  He received a weekly gross wage of €615.00, had a written contract of employment and was in receipt of the respondent’s Officer Handbook.  He performed his duties as a Store Detective for a major client of the respondent’s in their Dublin 1 branch. 

The claimant and his colleague (PL – UD1124/2012) were dismissed from their employment because of two incidents where the alleged misuse of force was used during each arrest that had occurred in M’s store on Sunday the 5^th February 2012 and Saturday the 12^th May 2012.

CCTV footage of these two incidents were viewed by the Tribunal and extensive evidence was adduced in respect of same. 

On the 17^th May 2012 the Human Resources Manager (MC) wrote to the claimant regarding these two separate incidents in M’s store.  The letter quoted the dates:

“          1. Sunday 5^th February 2012 – This incident is in relation to an aggressive arrest that took place and the failure to report this incident as per procedures.

            2. Saturday 12^th May 2012 – This incident is in relation to an aggressive and violent arrest that took place and subsequently the failure to escalate this incident immediately to the Company.”

He was asked to attend a disciplinary meeting on the 22^nd May 2012.  A copy of the incident reports received was also included with the letter. 

On the 22^nd May 2012 the claimant and his representative attended the meeting with MC and the Retail Operations Manager (DH).  The Manager of Training (AH) attended as a note taker.  The letter dated the 17^th May was read out, the CCTV footage was viewed and the incidents were discussed.  The claimant stated he had followed company procedures.

A letter dated the 25^th May 2012 was submitted to the claimant informing him of his termination of employment stating the reasons for the dismissal due to gross misconduct as outlined in the Officer Handbook.  The letter stated:

            “Guilty of serious misconduct or commit serious or persistent breach of any of yourobligations to (respondent’s name), or refuse or neglect to comply with any lawful orders or directions given to you by (respondent) or guilty of any conduct which brings or might bring you or (respondent) into disrepute.

            (h) Fighting with or the assault of another person

            Failing to follow procedures as outlined in your assignment instructions which states in relation to any incident “After completing the Incident Report, the Security Officer must fax immediately to his / her Line Manager and the Communications Centre, a full copy of the report.

As previously outlined the 1^st incident dated Sunday 5^th February was not escalated to the Company or our Customer in (M).  This incident was only ascertained when the Garda Ombudsman received a complaint and this complaint was escalated to (M), who subsequently then escalated to (respondent) Management.

Leaving the Company and our customer exposed for 3^rd party claims in relation to both incidents.

Your conduct during both incidents was appalling and in particular to the 2^nd incident, the store manager on 2 occasions had to instruct you to release the female.

            As a result of your actions on both occasions, this has now effected the Company’s reputation as a Security Provider and potentially put our existing and future contract with (M) in jeopardy.”

The claimant was given the right to appeal the decision.  He submitted his letter of appeal. An appeal hearing was held and the decision to dismiss was upheld.

(N.B. the complaint to the Garda Ombudsman was not in relation to the claimant in this matter)

Respondent’s Position:

The Manager of Training (AH), the Human Resources Manager (MC), a Security Officer (GS), the Operations Manager (DH), a Manager from the client (M) and the person (DL) who heard the appeal hearing gave evidence on behalf of the respondent.

Extensive evidence was adduced in relation to both incidents and the respondent’s procedures concerning the “power of arrest”.  The respondent felt fair procedures had been utilised in respect of the investigations carried out and meetings held in respect of these incidents.  In the circumstances the respondent felt there was no alternative sanction but to dismiss the claimant form his employment.

Claimant’s Position:

The claimant gave evidence.  He gave evidence of his extensive employment history in the security industry.

He submitted that he had abided by the procedures laid out in the Company Officer handbook.  He had reported the incident to his Supervisor and given him the incident report of the 5^th February 2012 to fax to the respondent’s Head Office. 

(It should be noted, the claimant’s Supervisor had not been interviewed by the respondent regarding these incidents.  He resigned from the respondent’s employment later soon after in 2012.  He was not present on any day of the hearing to give evidence in this matter).

He told the Tribunal that the first time he heard there was any problems with the two days in question was when he received the letter dated the 17^th May 2012.  He believed no excessive force had been used in either incident and was shocked when he was dismissed from his employment.

He gave evidence of his loss of earnings since his dismissal and commencement of new employment in the security industry.

Determination:

The Tribunal have carefully considered the extensive evidence and submissions adduced over the three days of this hearing.

On balance the Tribunal finds there was an absolute breach of procedures on behalf of the respondent in this case.  Furthermore the Tribunal are satisfied the claimant carried out his duties in the only manner he understood.  There was a proper detention of the person on each date in question and a reasonable use of force was used in both incidents.

The Tribunal finds the claimant was unfairly dismissed and, having taken the claimant’s mitigation of loss into account, awards the sum of €15,959.00 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)