UDD1640

The case came on for hearing before the Court on 6 December 2016.

Facts of the Case

The facts of the case are largely agreed in this case. The Respondent was notified by its client that an incident had occurred in its store on 15 August 2015 which it found unacceptable and required the removal of the Complainant from assignment to that store. The Retail Store complained that the Complainant, a male security guard, while on duty alone with a female employee, came up behind her while she was clocking out after work, placed his hands on her hips, moved them up her back, held her face and kissed her on the cheek. The female employee made a written complaint about the Complainant’s behaviour. The Retail store immediately advised the Respondent that it found the behaviour unacceptable and refused to have the Complainant assigned to the store or to any other of its retail outlets.

The Respondent invited the Complainant to a meeting on 26 August 2015 at which it put the substance of the complaint to him. He broadly confirmed that he had approached the woman from behind while clocking out, had put his hand on her back, not her hip and moved his hand up to her face and as she turned held her face and “pecked” her on the cheek. He said that the two of them had a good relationship, that it was a harmless friendly incident and that the Complainant made nothing of it at the time.

The Respondent advised the Complainant by letter dated 28 August 2015 that it took a most serious view of the incident and invited him to a disciplinary meeting to respond to an allegation of Gross Misconduct consisting of Inappropriate Behaviour.

The Complainant attended the meeting on 31 August 2015 at which he admitted the incident but characterised it as having been done in a friendly manner. He said he was friendly with most of the staff. He apologised for any offence he had caused and apologised for the incident.

The Respondent considered the Complainant’s response to the charge and decided that he had breached the fundamental trust that was necessary to employ him as a security guard. He decided that redeployment was not an option in such circumstances. He decided that dismissal was his only reasonable option in all the circumstances.

He so notified the Complainant by letter dated 3 September 2015.

The Complainant exercised a right of appeal as set out in the Company disciplinary procedures. The Respondent engaged the services of Mr Liam Barton of Insight HR to hear the appeal.

He interviewed both the Complainant and the Respondent. He did not interview the female employee involved in the incident.

He found that the Respondent had not supplied the Complainant with a copy of the female employee’s complaint. In that regard he found that this was a procedural flaw in the process. However he also found that the substance of the complaint had been fairly put to the Complainant and he had been given a fair and reasonable opportunity to consider it and to make any representation he wished. For that reason he found that the procedure, though imperfect, was adequate.

He further found that the decision to dismiss was justified and rejected the appeal.

That decision was appealed to the WRC and upheld by the adjudication officer. The Complainant appealed against that decision to this Court.

Case Before the Court

Both sides submitted extensive submissions setting out the facts of the case, the relevant law and the application of the law to the facts. Both sides submitted copies of relevant correspondence, minutes of relevant meetings, copies of the complaint and relevant legislation and case authorities on which they sought to rely.

The Court also heard evidence from Mr Stuart O’Moore the decision maker in this case, Mr Liam Barton the person appointed to hear the appeal and from the Complainant himself.

The Law

Section 6 of the Act in relevant part states

• 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Findings of the Court

Having considered all of the submissions, both oral and written and the evidence presented in the course of the hearing the Court finds as follows

The Complainant, a security guard, employed by the Respondent, had approached a female employee in a client company from behind while clocking out after work. He placed his hands on her back, moved them up her body and as she turned held her face in his hands and kissed her on the cheek.

The Court finds that the complainant offered no explanation for his behaviour.

The Court finds that this is a most serious infringement of the Complainant’s right to bodily integrity. The Court also finds that the matter is aggravated by the position of trust the Complainant held, the fact that she was alone in the shop, the fact that she was approached from behind without warning and the fact that the Complainant placed his hands on her body, held her face and kissed her all without invitation or permission and in her place of work.

The Court finds that the Respondent’s admitted failure to give the Complainant a copy of the written complaint amounts to a flaw in the procedures deployed in this case. However the Court finds that the Respondent put the substance of the complaint to the Complainant and he was aware at all times of all of its details. Accordingly the Court finds that the flaw was not fatal to the procedures deployed.

The Court finds that the Procedure employed by the Respondent was fair and accorded with the principles of natural justice.

The Court finds that the Complainant admitted the substantive complaint. The Court also finds that the Respondent, based on that admission and taking into account all of the circumstances and affording the Complainant fair procedures to address complaint, was entitled to take a serious view of the Complainant’s behaviour.

The Court finds that the decision to dismiss the Complainant was within the range of measures that was proportionate to the breach of trust involved, the infringement of the Complainants right to bodily integrity and to a have a safe place of work, to her right to work on the company premises alone without physical approaches from the security guard appointed to protect her. Accordingly the Court finds that the decision to dismiss was reasonable and proportionate in this case.

The Court finds that the Respondent was influenced by the Complainant’s behaviour alone and finds no evidence to support the Complainant’s contention that the decision maker acted under duress from the client store. The Court finds that the decision to dismiss was justifiable based on the Complainant’s admitted behaviour alone.

Determination

The Court dismisses the appeal and upholds the decision of the Adjudication Officer.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
19th December 2016______________________
SCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.