UD1508/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                           CASE NO.

Valentins Kalinins                                                                                                   UD1508/2012

 (claimant)                               

against

ISS Ireland Limited T/A ISS Facility Services

(respondent)

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:    Mr. J.  Revington SC

Members:     Mr. E.  Handley

                     Mr. D.  Thomas

heard this case in Dublin on 22 January 2014 and 16 & 17 April 2015

Representation:

_______________

Claimant(s):               Mr. Alan Ledwith BL instructed by:

                                     Nevan O'Shaughnessy, O'Shaughnessy Solicitors,

                                     First Floor, 1 Fr. McWey Street, Edenderry, Co. Offaly

Respondent(s):           IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2

The determination of the Tribunal was as follows:

An unfair dismissal claim was brought on behalf of a security guard (the claimant) who was dismissed for allegedly covering for a colleague (hereafter referred to as SG2) who had absented himself from his work station.

The respondent’s position was that the claimant had held a post of trust on the site of a major client and that, when the respondent’s customer service manager (hereafter referred to as CSM) visited the site on 23 May 2012, the claimant had said that the departed SG2 was in another part of the warehouse. When the respondent looked at CCTV footage it was concluded that SG2 had left early a number of times. On 23 May 2012 SG2 had left at 4.40 a.m. rather than at 7.00 a.m. when his shift was to end. The site for two security men was being manned by one employee. It was concluded that the claimant had lied. He was dismissed. An appeal failed.

Giving sworn testimony at the Tribunal hearing, the abovementioned customer service manager (CSM) said that the site in question had high value products such as alcohol and household goods. Trucks would be signed in and out by the two-man security team. Agency workers and drivers would be signed in. Vehicle registrations were noted.

It was essential to the respondent and its clients that there would be two security men on duty on the site. One would man a security hut and the other would do patrols. There would be some 150 trucks per day.

There was no security supervisor on site. The respondent had products for major multiples. Security guards had to check in hourly with the control room.

A security man could leave ten or fifteen minutes before the end of a shift but only if a relieving security man from the next shift had arrived early. CSM told the Tribunal that if one man was missing there would be no-one to address the situation if the other man had a stroke or another debilitating misfortune which would lead to a control-room delegated man being sent until a replacement arrived. There would be a health-and-safety exposure if one lone security man were lying unaided on the floor. Also, the respondent’s client was being charged for two security men rather than one.

CSM told the Tribunal that he did not believe that the claimant had seen him arrive on his auditing visit before six o’clock on the morning of 23 May 2012 but CSM said that, once the claimant had become aware of his arrival, the claimant had got busy on his mobile phone.  The claimant finally admitted that SG2 had gone home early.  The claimant also stated that SG2 never left early prior to this incident. 

Under cross-examination, CSM confirmed that he was involved in the investigation process, the disciplinary process and he also made the decision to dismiss the claimant.   He stated that as a Manager he was capable of making a judgment call.  He considered himself a Senior Manager for the purposes of complying with company policies.  The claimant was not in a supervisory role and was the same level as SG2.  Other sanctions were considered but dismissal was decided to be the only course of action.

In reply to the Tribunal, the witness stated that he reported to the National Operations Director.    

The HR Director (HRD) told the Tribunal that he heard the claimant’s appeal.  He met the claimant on 20^th July 2015.  The claimant indicated to HRD that he had made a mistake but felt maybe suspension rather than dismissal would be appropriate.  After considering all aspects of the case, HRD decided to uphold the decision of dismissal.

Giving evidence, the claimant told the Tribunal that he made a mistake in covering for SG2, who was the same grade as himself.  He did not know what to do at the time and made a bad decision.  He felt he had a moral dilemma as SG2 had family issues.  The claimant felt that an appropriate punishment could have been suspension rather than dismissal and felt the sanction was disproportionate.    

The claimant gave evidence of loss and his efforts to mitigate his loss. 

Determination:

The Tribunal gave the circumstances of this case considerable consideration.  The case as outlined above was fairly put by the respondent.

The claimant had originally disputed the evidence but subsequently co-operated in full with the investigation, hearing and appeal. 

The matter was serious in that the actions of the claimant had put himself under a considerable amount of jeopardy by his actions and non-actions.

Under all the circumstances, the Tribunal finds the dismissal fair due to the seriousness of the possible consequences.

The Tribunal notes the excellent record of the claimant over a long period of time and was impressed by the way he met the case in this Tribunal.  The Tribunal believes that in the event of the claimant securing employment a reoccurrence of misconduct is most unlikely to occur again.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

      (CHAIRMAN)