ADJ-00000530

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000530

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 13/04/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The respondent was advised by one of their clients (a National Retail Company) that they had received a serious complaint from a member of their staff in relation to the complainant and that they required him to be removed from their premises.

The respondent invited the complainant to attend an investigatory meeting clearly setting out in writing the basis of the invitation although they did not furnish him with a copy of the written complaint.

The complainant acknowledged the substance of the complaint at the investigatory hearing and two days later the respondent wrote to him requesting him to attend a disciplinary hearing. The complainant was advised at all times of the seriousness of the complaint and of his right to representation at these meetings.

Following the disciplinary hearing the respondent summarily dismissed the complainant and outlined the reasons in writing. This was done after taking into account the complainant’s excellent work record and considering alternative sanctions. The complainant was advised of his right to appeal the dismissal.

An independent appeal process was conducted by a HR Consultant who upheld the respondent’s decision to dismiss the complainant.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Issues for Decision:

Did the respondent act in a fair and proper manner in reaching their decision to dismiss the complainant and thereby discharge the burden of proof required under the legislation..

Legislation involved and requirements of legislation:

Section 6(1) of the Unfair Dismissal Act 1977 states;

“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.”

Section 6(4) of the Act states;

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one of the following: …..

(b) the conduct of the employee

The requirement therefore is on the respondent to show that the decision to dismiss was substantially justified by the conduct of the employee in this instance. Regard must also be had for proper and fair procedures and in particular to the guidelines set out in the Code of Practice on Grievance and Disciplinary Procedures (S.I. 146 of 2000).

Decision:

The complainant was employed as a Security Officer by the respondent (a Security Company) since September 2009. For most of this time the complainant was based in a branch of a Retail Company which operates throughout the country. About 65% of the security company’s business is with this client. He worked 30 hours per week with gross wages of €310.00 per week.

On 18 August 2015 the respondent received an email from the Director of Security of the retail company regarding the complainant stating that because of an incident that occurred in the store on 16 August 2015 they “no longer want him working in that store or indeed any other store in the Group.” The director of the respondent contacted the client who gave him details regarding a complaint received from a senior female member of staff alleging inappropriate behaviour on the part of the complainant in that he had put his hand on her hip and kissed her on the face as they exited the store at closing time. They were the last two persons in the store at that time.

The complainant was requested to attend an investigatory meeting on 26 August 2015 advising him that he could bring a representative and the details of the complaint were relayed to him at that meeting. This meeting was conducted by a company director. The complainant responded by accepting that the incident took place but stating that he had put his hand on the staff member’s back, not hip, and had kissed her on the cheek. The respondent suspended the complainant on full pay following this meeting stating that this was done on the grounds that he may have a case to answer in relation to “Gross Misconduct – Inappropriate Behaviour”.

The respondent then wrote to the complainant requesting that he attend a disciplinary hearing on 31 August 2015 again stating he could bring a work colleague as representative. The same company director conducted this meeting. The details of the allegations were again put to the complainant but he was not given sight of the written complaint from the staff member which formed the basis of the allegations. The complainant again responded by giving his version of the events and stating that they should be viewed in the context of ongoing banter with a member of staff who he had known for three years and with whom he was friendly. He agreed that his actions were uninvited. The complainant also offered to apologise for his actions. Following this meeting the director took the decision to dismiss the complainant with immediate effect on the grounds of Gross Misconduct. The complainant was advised of his right of appeal.

The appeal process was carried out by a HR Consultant who advises the company on HR issues. As part of the process he interviewed both the complainant and the director who took the decision to dismiss. The Consultant then issued his report in which he upheld the respondent’s decision with regard to the dismissal.

In this case there is no dispute regarding the fact that an incident occurred in the store where the complainant was employed as a security officer. There is, however, a major difference in the gravity attached to the incident by the parties involved. The complainant accepted that his actions were uninvited and that fact alone obviously places them in the extremely serious category. In determining whether the decision to dismiss was fair it is accepted practice that I consider the following matters:

1. The nature and extent of the investigation carried out by the respondent prior to the decision to dismiss the complainant
2. Whether the procedures adopted were fair and reasonable and
3. The reasonableness of the conclusion arrived at by the respondent

The director gave evidence that following receipt of the initial email from the client he spoke with the person who sent the email and was given the details of the incident. The initial investigation meeting was based on this information. Subsequent to that and prior to the disciplinary hearing the director visited the store. He did not speak to the staff member involved in the incident but ascertained that there were no CCTV cameras in the area where the incident happened. During this period he also received a copy of the written complaint but was requested by the client not to pass this on to the complainant and did not do so. Before advising the complainant that he was being dismissed the director discussed the issue with the respondent’s other director and, in particular the complainant’s unblemished service record and the possibility of a sanction less than dismissal.

There were obvious defects in the disciplinary process, in particular, the failure to provide the complainant with a copy of the written complaint and the advisability, where possible, of having different persons conducting the investigation and disciplinary hearings. On the other hand the complainant was given advance notice of meetings, was advised of the seriousness of the matters being investigated, was offered representation at all meetings and had all allegations put to him and was given the opportunity to respond to them. He was also afforded an appeal process. On balance therefore I find that the complainant’s rights were not unduly compromised by the respondent’s actions in this regard.

Both the respondent and their client company treated this matter as one of the utmost seriousness as it is a fundamental right of every employee to be provided with a safe working environment. Part of the duty of a Security Officer is the protection of staff. Any departure from strict standards of conduct in this regard has to be a matter of grave concern. It is against this background that the proportionality of the sanction of dismissal has to be measured. I accept therefore the reasons put forward by the respondent for deciding that due to the conduct of the complainant dismissal was justified in this particular case.

I find therefore that in accordance with Section 6(4) of the Act the complainant was not unfairly dismissed and that the complaint fails.

Dated:   28^th June 2016