EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Patrick Dunne UD1145/2014
PW132/2014
MN125/2014
Against the recommendation of the Rights Commissioner in the case of:
Securitas Security Services (Ireland) Limited T/A Securitas
Under
UNFAIR DISMISSALS ACTS 1977 TO 2007
PAYMENT OF WAGES ACT 1991
MINIMUN NOTICE AND TERMS OF EMPLOYMENT ACT 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr. L. Tobin
Mr. S. O'Donnell
heard this appeal at Dublin on 24th February 2016
Representation:
_______________
Appellant: Mr. Hugh Hegarty, SIPTU, Liberty Hall, Eden Quay, Dublin 1
Respondent: Mr. Tim O'Connell, IBEC, Confederation House, 84/86 Lower
Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
The Tribunal has carefully considered the evidence adduced by each of the four witnesses it heard, together with the submissions made by the parties’ representatives.
This is an Unfair Dismissal and Payment of Wages claim coming before the Tribunal on foot of a finding of the Rights Commissioner dated the 16th of July, 2014 and also a separate claim for Minimum Notice.
The claimant has worked in the security industry for over thirty years. The last thirteen years of his employment have been with the respondent company and in particular the claimant spent the last six months of his employment with a client of the respondent providing a data holding service. It was explained to the Tribunal that this particular site required around the clock security with two guards by day and a lone guard by night. The standard operating procedure was opened to the Tribunal and this document clearly sets out the tasks and functions which security guards are expected to perform in the course of their duties.
The Tribunal notes that in a shift the claimant (who worked nights) was expected to perform six patrols of the premises (each lasting about 30 or 40 minutes) and thereafter would be expected to monitor various screens (displaying up to 80 camera images) at the main security desk, in the reception area of the premises.
The Tribunal fully accepts that the claimant, in the course of the overnight 12 hour shift, would be entitled to his statutory breaks as personal breaks and would further be expected to perform other tasks such as detailing shift events in the guard report documents he provided. However the Tribunal does also recognise that any security guard’s function would, most principally be, the monitoring of CCTV screens and would not accept that CCTV cameras are there purely as a ‘deterrent’ as the claimant suggested, but as an anticipatory and warning system which requires monitoring. In short the monitors need monitoring.
In or about December 2013, it came to the attention of the Chief Technical Officer that there were what were described as ‘anomalies’ in the claimants pattern of duties and in particular, on at least 46 occasions in a 2 month period, the claimants movements included long delays in a room or area of the building for no ostensible purpose. An analysis of the CCTV footage and the use of personalised swipe cards allowed the technical office to demonstrate that the claimant ‘fell off the radar’ as it were, for anywhere between one and three hours on a regular basis.
It is noted that the space where the claimant stopped was not covered by any CCTV camera. It is accepted that the claimant had with him at all times a mobile phone which transferred calls from the security desk and it is further noted that the claimant could not have been monitoring monitors while away from the security desk.
The claimant made the case that his employer knew that he would not be expected to be physically monitoring monitors for the full duration of his shift, a fact borne out by the expectation that he was obliged to perform up to 6 patrols, of a half hour duration each, during the course of his shift.
An investigation was conducted and once established that there was no reasonable explanation for the 46 events described the matter was moved up to a disciplinary matter.
The claimant’s representative made a strong argument against the use of CCTV footage to the detriment of his client. Whilst there can be no doubt that the claimant knew that there were cameras watching his every movement on the premises, was it fair for the respondent company to use the information contained therein against him?. On balance, the Tribunal finds that it is not unreasonable for the respondent to make use of this information for the monitoring of its employees, in the same way as the information might be used to look at an on-site accident or observe a crime. The claimant did not need to be specifically told that this information might be used, as this fact was self-evident. In reaching this conclusion, the Tribunal has particular regard for the fact that the claimant was in the security sector.
The claimant only gave an explanation after the first disciplinary meeting, at which time, in an email to the H.R. manager, he agreed that he has taken time out to either exercise and/or rest his back which had been giving him trouble on an ongoing basis. The difficulty with this explanation from the employer point of view is the fact that they were not specifically on notice that their employee would need up to two hours to rest and/or exercise his back. Had the employer known this fact could they possibly have considered the claimant as being a safe or practical choice of security guard, on his own, on an overnight shift?
The Tribunal has every sympathy for the claimant in circumstances where he was having back difficulties. On balance, this fact should never have been kept from his employer especially in circumstances where it kept the claimant from performing his functions to the best of his abilities. However, The Tribunal does not recognise a casual shop floor discussion about the issue as constituting appropriate notice. The claimant put the respondent’s relationship with the particular client at risk by his actions and in so doing broke the trust required to exist between an employer and employee.
The Tribunal upholds the decision of the Rights Commissioner as there was a dismissal for gross misconduct. The claim under the Payment of Wages Act 1991 and the Minimum Notice and Terms of Employment Acts must also therefore fall.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)