ADJUDICATION OFFICER RECOMMENDATION

Adjudication Decision Reference: ADJ-00002975

Complaint for Resolution:

Date of Adjudication Hearing: 21/07/2016

Workplace Relations Commission Adjudication Officer: John Walsh

Venue: Ardboyne Hotel, Navan, Co. Meath.

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and under Section 13 of the Industrial Relations Act, 1946 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed by the Respondent on the 22^nd of January 2007 as a retail security officer. An incident occurred on the 31^st October 2015 with a member of the public in the Respondent’s store which resulted in him being issued with a disciplinary sanction. He filed a complainant with the Workplace Relations Commission on the 28/4/2016.

Complainant’s Submission:

The following is a summary of the Complainant’s submission;

The Complainant at the time of the incident was employed as an RSO in a Dublin store. The premises next door, a takeaway, was experiencing a number of difficulties with a drunken and rowdy young man. The owner came into the Respondent’s store, aware that it had a security officer and asked him if he could possibly intervene as he had a security issue.

Reluctantly, the Complainant went next door, given that he was familiar with a lot of the locals, to see if he could resolve the issue and encourage the young man to go home peacefully. Unfortunately, despite his best efforts, he was unable to do so and instead the young man attacked him. The Complainant attempted, to the best of his ability, to deal with the incident outside his store and returned to his place of employment.

Within minutes, the young man entered the Complainant’s workplace and proceeded to threaten and abuse the Complainant. He attempted to ignore his actions and provocations and called for assistance and then in an effort to deal with the situation he asked him to leave the premises as he was unable to get through to the Gardaí. At this point, the young man attempted to confront the Complainant and in a motion of self-defence put up his hands to avoid injury and pushed the man back. The man fell back and the Gardaí arrived and they proceeded to deal with the incident. He returned to his duties and in the course of the evening, the young mans parents came to the store to enquire as to what had occurred. The Complainant explained the incident and in the presence of the Gardaí, he showed them the CCTV of what had occurred and at that stage the parents apologised for their son’s behaviour and that was the end of the incident.

The following day, the area personnel manager was in the store and he took no action whatsoever against the Complainant but did in the time between the incident and the investigation put pressure on him to move stores. Three investigation meetings then followed and the Complainant explained exactly what had occurred and the actions that he had taken on the night. He clarified that his actions were based on attempting to diffuse an altercation which had occurred in the premises next door. He explained that he had walked away from the incident and that it was the young man that followed him into the store and any action taken in the store was purely defensive.

The disciplinary process took place and it appeared that no appreciation was taken of anything that the Complainant had said and he was issued with a final written warning, demotion to a customer assistant role and relocation to a different store. It then transpired that the store he was asked to move to was a 60km daily round trip, despite there being approximately 15 stores within 10km of his home. The appeal hearing that was conducted by the Respondent was unprofessional. It took place on the 4^th of February, 2015. The outcome of the appeal was issued on the 22^nd of April, 2015. It is our belief that the company handled this matter in a very unfair way and the sanctions that were issued were totally disproportionate. The sanctions issued should be removed and the Complainant returned to the role of an RSO.

Respondent’s Submission:

The following is a summary of the Respondent’s submission:

The Complainant was involved in an incident in work on the 31^st of October 2015 whereby it was found that he used excessive force against a member of the public. Initially the Complainant left the store to help to diffuse an argument in a fast food restaurant next door, where an altercation took place. The Complainant should never have left his post in the store as he has no jurisdiction to do so and embroil himself in any matters outside those that affect the Respondent. The CCTV footage shows the situation unfold in the clearest terms. The Complainant and the member of the public physically engaged in an altercation outside the fast food restaurant. The Complainant then returned to his post within the store. The member of the public is then seen standing at the entrance to the store and an exchange of words are taking place. The Complainant then left his post within the store and walked towards the member of the public and assaulted him.

An initial investigation took place on the 11^th of November 2015. At this meeting the Complainant claimed he was defending himself. In line with company policy, the Respondent suspended him on full pay pending a full investigation.

An investigation meeting took place on the 25^th of November 2015 at this meeting, the Complainant claimed that he shoved the young man once and then said he was defending himself. A further investigation meeting was arranged for the 2^nd of December 2015. On the 7^th of December 2015, a further investigation meeting took place where CCTV footage was viewed. An investigation outcome meeting was held on the 21^st of December 2015, whereby the Complainant was informed that he had acted in contravention of his training and was informed his actions constituted serious misconduct and the process would move to the disciplinary stage of the policy.

A disciplinary meeting took place on the 7^th of January 2015. The Complainant presented his version of events. An outcome meeting was arranged for the 14^th of January 2016 but the Complainant failed to attend. In his absence the outcome meeting went ahead and the outcome of the meeting was communicated to him via registered post. The disciplinary officer stated that his actions constituted gross misconduct. He was issued with a final written warning, demoted to a customer assistant role and relocated to a store in Naas.

On the 19^th of January 2016, the Complainant appealed these sanctions. An appeal meeting took place on the 3^rd of February 2016. The Complainant outlined a number of issues which stated that he did not receive a fair and proper disciplinary process. The Complainant failed to appear for work in Naas as he went out on sick leave. He failed to make contact with the company. He was asked again to make contact by the 25^th of March 2016 otherwise the Respondent would have no other option but to assume he does not wish to return to work. The complainant made contact with the store on the 23^rd of March 2016 and stated he was still awaiting the outcome of his appeal against the sanctions issued against him. On the 22^nd of April 2016, the Complainant’s union official, wrote to the Appeals Officer requesting the outcome of the appeal. The appeal outcome letter was finally sent on the 22^nd of April 2016. The appeal officer found no grounds upon which to overturn the disciplinary officer’s findings. As a result, the disciplinary sanctions remained in place. The Complainant has not returned to work and continues to submit medical certificates to the store citing work related stress.

The sanctions issued to the Complainant are in no way disproportionate considering the gravity of the situation. The Complainant had no right to leave the store in the first place and indeed with a member of the public in any circumstances.

Findings:

The Complainant responded to the request of the owner of a business next door to try and placate a person on his premises who was acting in an abusive manner. The Complainant agreed to attend and see if he could resolve the issues.

The Complainant should not have become involved in this situation. He was employed by the Respondent and should have concerned himself only with his security duties. By becoming involved in this matter he could have endangered himself, his co-workers and customers of the Respondent. Following a disciplinary process, the Complainant was issued with three sanctions;

-          A final written warning

-          Demotion to a customer assistant role

-          Relocation to a company store in Naas

I find that the final written warning issued to the Complainant should remain in place. I also find that his demotion to a customer assistant role should remain in place; however, I find that the relocation to a customer store in Naas is totally disproportionate.

Recommendation:

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.

Based on the evidence presented at the hearing by both parties, I find that the complaint is well-founded in part. The final written warning should remain in place for a 12 month period and the customer assistant role should be located in the Dublin region.  

Dated:   5^th October 2016