UDD1627

This is an appeal brought by Mr Szaraz (hereafter “the Complainant”) against a decision of an Adjudication Officer dated 22 February 2016. The Adjudication Officer found that the Complainant’s complaint of unfair dismissal brought pursuant to the Unfair Dismissals Act 1977 (hereafter “the 1977 Act”) was not well founded. The Complainant’s complaint under the Payment of Wages Act 1991 (hereafter the 1991 Act) arising from the failure of his former employer, Brinks (hereafter “the Respondent”, to pay him in respect of his contractual notice period was also deemed not well founded. The Notice of Appeal in respect of both matters was received by the Court on 31 March 2016. The Court convened a hearing to consider the appeal under both Acts on 8 September 2016. The Complainant was represented by SIPTU and the Respondent was represented by IBEC at the hearing.

The Complainant’s Employment History

The Complainant has worked as a security guard since 2006 at various locations in Dublin but has been primarily based at Heuston Station. He was originally employed by STT. On 27 May 2013 his employment transferred to the Respondent by operation of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003. As of the date of his dismissal, the Complainant was in receipt of a gross wage of €984.80 which was paid fortnightly.

Events which led to the Complainant’s Dismissal

The decision by the Respondent to dismiss the Complainant followed an investigation into a complaint received by it via Irish Rail management initiated by a member of the travelling public who alleged he had witnessed an incident in the men’s toilets at Heuston Station on 20 March 2014 involving the Complainant in his capacity as a security guard and a male member of the public who was thought to be a homeless drug user. The member of the public referred complaints both to Irish Rail and to An Garda Siochana.

It was alleged that the Complainant had used excessive and unnecessary force to eject the individual concerned from the toilets and the precincts of Heuston Station. The Respondent obtained and examined CCTV footage which showed the Complainant, along with a colleague, escorting the individual through the concourse area of the station. The Complainant was placed on paid suspension while the matter was investigated. Ultimately, the Complainant was dismissed for gross misconduct on 24 June 2014. He unsuccessfully appealed the decision to dismiss him. The outcome of the appeal issued on 25 September 2014.

It is important to note at this stage that no disciplinary sanctions were imposed on the Complainant’s colleague arising out of the above incident because he voluntarily left his employment with the Respondent shortly after the incident occurred.

The Investigation and Disciplinary Process

An initial investigation into the allegation against the Complainant was conducted by Mr Chris Moore, the Respondent’s National Contracts Manager. Mr Moore produced what can only be described as a rather succinct report on the conclusion of his investigation. A copy of his report was opened to the Court. It recorded the following findings:

• •“Duty officers report to have used excessive force

  •Both duty officers deny using excess

  •Duty officers failed to submit a full report at the time of the incident”.

In any event, it appears that an investigation meeting, chaired by Moore, took place on 22 April 2014. The meeting was attended by the Claimant and his Trade Union representative. A disciplinary meeting took place on 16 May 2014. This was conducted by Ms Judy McNamara, Senior HR Officer with the Respondent. The same Trade Union representative accompanied the Complainant. Ms McNamara thereafter met with the member of the travelling public who had made the original complaint. She also met with the member of An Garda Siochana who had received the complaint. A further meeting took place between Ms McNamara and the Complainant at which the Complainant was afforded the opportunity to view and comment on the CCTV footage referred to previously. Ms McNamara issued the outcome of the disciplinary process to the Complainant in writing on 24 June 2014. She advised the Complainant that she had taken the decision to dismiss him summarily for the following reasons:

• “[T]he company finds your excessive use of physical contact with the member of the public to be extremely disproportionate. It is not acceptable that the use of physical motion is used as a result of using verbal abuse. Furthermore, your actions were carried out whilst on duty and wearing a uniform representing Brinks. As your conduct was witnessed by a member of the public, this places the Company into disrepute and falls below what is expected of you …. [I]t would be reasonable to believe that with your level of training and expertise in the industry, that you would have dealt with this situation in a more appropriate and professional manner. This conduct falls well below what is expected of you and is not tolerated by the Company.”

Parties’ Arguments

The Respondent’s defence of the complaint under the 1977 Act can be summarised as follows:

• 
  •The Complainant’s conduct on 20 March 2014 amounted to a serious breach of trust in the employer/employee relationship and brought the Respondent into disrepute;

  •The Complainant had failed to act in an appropriate and professional manner towards a member of the public in executing his duties as a Brinks Security Officer;

  •The Respondent had given comprehensive written instructions to its employees based at Heuston Station – including the Complainant – to report all incidents, however insignificant – promptly to the Brinks Duty Controller. The Claimant failed and/or neglected to promptly report the incident of 20 March 2014.

• 
  •The Complainant had used reasonable force only on 20 March 2014 to remove a known drug user and aggressive beggar from Heuston Station;

  •The Respondent and Irish Rail management at Heuston Station were fully aware of, condoned and encouraged the use of reasonable force in such circumstances;

  •Other employees of the Respondent were not disciplined for having used similar levels of reasonable force in the past;

  •The sanction of summary dismissal is excessive in all the circumstances and, in particular, having regard to how the company treated other employees in the past, and, therefore, renders the Complainant’s dismissal unfair and contrary to the provisions of the 1977 Act.

Discussion and Determination

Having considered the parties’ detailed submissions and the evidence adduced by the respective witnesses, as well as viewing the CCTV footage from 20 March 2014, the Court determines that the Respondent’s decision to dismiss the Complainant for gross misconduct arising out of the events of that date was disproportionate and unfair.

The Complainant has been pursuing qualifications in an alternative discipline with a view to starting a new career in that area. He gave evidence of the obstacles he encountered in trying to obtain alternative work in the security sector as a consequence of the circumstances in which his previous employment with the Respondent had terminated. In the circumstances the Court determines that the appropriate remedy under the 1977 Act is compensation in the amount of €6,000.00. This sum also reflects the extent to which the Complainant, in the Court’s view, contributed to his own dismissal.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
3rd October, 2016______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.