ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00004790

Anonymised PartiesA Security Officer -v-A Property Support Service Company

 Representatives SIPTU IBEC

Complaint:

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00006754-001 02/09/2016  

Date of Adjudication Hearing: 26/10/2017

Workplace Relations Commission Adjudication Officer: James Kelly

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, 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. The final correspondence received post hearing was 2 November 2017.  

Background:

The complainant claims that having worked for the respondent for over 9 years he was dismissed for using his mobile phone while at work. He claims that the respondent failed to give due consideration to mitigating factors and that this was an unfair dismissal within the meaning of Section 6 of the Unfair Dismissals Acts. The respondent disputes the claim of unfair dismissal and it claims that the complainant was treated fairly at all times.

Summary of Respondent’s Case:

At the outset of the Hearing the respondent clarified the official name of the respondent to which the complainant raised no objections to. I have amended the Work Place Relations Commission records accordingly. The respondent is a family owned business established in 1966 and provides a range of property supports services, including security and cleaning services to clients throughout Ireland. The respondent said that the complainant commenced employment as a Security Officer on 2 April 2007 and was employed on a 39 hour per week contract and earned a gross annual salary of €24,814.92 per annum. The respondent provided, in evidence, details of its employee handbook in particular it referenced the following paragraph, which reads, “staff members are not allowed to undertake personal activities on mobile phones devices during working hours, including sending personal texts and making personal calls. You are required to devote the whole of your time, attention and abilities to your duties during your normal working hours. Failure to adhere to this policy may be dealt with through the disciplinary process”. The respondent claims that the complainant was stationed with a high profile and important client where 52 members of the respondent’s workforce were engaged in either security or cleaning services. The respondent claims that the complainant received a final written warning in December 2015 in relation to the ongoing use of his mobile phone whilst at work. It claims that there was a substantial breach of security which the complainant failed to observe on CCTV and react because he was found to be on his phone at the time and not monitoring the security cameras. The respondent claims that the complainant was fully responsible for missing this break-in and he could have lost his job at that time. However, in an effort to try and help the complainant and give him a second chance it decided instead to issue a final written warning and told him of the possible future threat to his employment due to his mobile phone usage. This sanction was to be held active on his record for a period of 12 months as per the respondent’s disciplinary procedures. On 10 June 2016, the site operations manager and a team leader came across the complainant with his phone beside him and the phone was lit up as it just received a text message. The site operation manager asked if the complainant was using his phone and he confirmed that he had been. The complainant was invited to attend an investigation on 21 June 2016 and the following allegation was put to him that, “it is alleged that you have engaged in ongoing use of your personal mobile phone during working hours to include Friday 10 June, Saturday 11 June and Wednesday 15 June 2016 which resulted in your failure to devote the whole of your time, attention and abilities to our business and your responsibilities during the normal working hours”. The complainant was advised of his rights to have representation attend with him and was issued with a copy of the respondent’s disciplinary procedure. An investigation meeting took place on 30 June 2016, a report of the incident was read out by the site operations manager and the complainant confirmed that it was a true account of events. The respondent outlined the lengths it had gone to support him in the excessive use of technology and his mobile phone while working and the fact that he had not changed his behaviour. The complainant was invited to attend a disciplinary hearing on 7 July 2016 and he was again advised of his rights to have representation attend with him and was issued with a copy of the respondent’s disciplinary procedure. The meeting was conducted by the HR and Payroll Manager and she asked if there was anything he wanted to clarify; it claims that he said he was not using his phone but he had it out on the desk beside him and that there was an App on the phone that kept it lit up. The respondent maintains that the complainant confirmed at this meeting that he knew he was on a final written warning for similar behaviour and that he had been spoken to several times in relation to the use of his mobile phone in the past. The respondent claims that the complainant said that he needed to check his phone for personal reasons and to carry it with him for health and safety reasons. The respondent claims that the complainant said he knew and understood the reasons for the respondent’s strict mobile phone usage policy. The respondent claims that the complainant challenged the claim that he was using his mobile phone on Wednesday 15 June, and accordingly that allegation was dropped. The respondent also claims that the complainant apologised for his actions. On 12 July 2016, the HR and Payroll Manager wrote to the complainant to inform him of her decision following the investigation. She had found that the allegations against him were upheld, his actions constituted gross misconduct and he was dismissed as of 12 July, 2016. The respondent claims that the complainant was offered the right to appeal, which he availed of, and an appeal was heard on the 15 August 2016 by the respondent’s Head of Operations. The respondent maintains that the complainant accepted the facts in the decision with the exception that the App on his phone was sending him messages from the previous day and that he needed the phone for health and safety reasons as the companies two-radio systems did not operate well throughout all the clients site. The respondent claims that the complainant also said that he had personal family reasons why he had to use his phone at the time and if he could be allowed to return to work he would not carry or use his phone again while at work. The respondent claims that the complainant acknowledged that he had not brought his personal family reasons to the attention of his manager. The Head of Operations said he would consider everything and would make a decision. The Head of the Operations wrote to the complainant on 23 August 2016 and informed him that having taken everything into consideration and together with the seriousness of the offence he felt there was no reason to over-turn the decision to dismiss the complainant. The respondent claims that the complainant was on a written warning for his persistent use of his personal mobile phone. This action is determined to be very serious for the post of a security guard for both health and safety reasons and the possible reputational damage to the respondent and the complainant was well aware that it carries a possible sanction of gross misconduct. The complainant had broken that rule in the past and the respondent gave him numerous opportunities to change his behaviour but it was not changing. The respondent carried out a fair and comprehensive, disciplinary hearing and appeal meeting. The complainant was afforded his rights throughout this process. However, the respondent has decided that the complainant’s decision to continue to disregard the mobile phone usage rule, as an act of gross misconduct, and the appropriate sanction is dismissal. The respondent said that the complainant never raised with it that problems in his personal life were having a significant impact on him; he never looked for any assistance or help; it claims that it was not aware of any problems because he did not bring them to his manager’s attention. He never asked for time off to allow him space to sort out his personal life. He continued to report into work and continued to use his mobile phone contrary to him knowing that he should not and that it could cost him his job.

Summary of Complainant’s Case:

The complainant claims that he was employed as a Security Guard for the respondent for 9 years. The complainant claims that from December 2015, following a final warning from the respondent, he was overly scrutinised by his manager on a day to day basis. The complainant claims that he was going through serious personal issues at the time and that his manager, the site operations manager, was well aware of this and these mitigating factors were not taken into consideration in the decision to dismiss him. He claims that he was just recently separated from his partner and the mother of his child. This was a difficult separation and the complainant’s main concern was for his daughter and ensuring that the impact on her was kept to a minimum. He said that there were difficulties arising regarding the access rights to his daughter which he was trying to resolve with his ex-partner. He claims that his ex-partner was contacting him constantly on his phone. He had asked her not to do so while he was at work. However, he said that she persisted and stated that if he does not take her calls it will have consequences on his access rights to his daughter. He said that this left him in a very difficult position. The complainant admits that there were issues in the past with about his use of mobile phones during working hours, and he said like most young people, “his mobile phone was like an extension of his arm” and thatover a period of time he became “addicted to using it, to play games, to text friends and for using social media sites”. He said that he had developed a serious habit using his phone and he had been spoken to and received a warning from the respondent. He claims that he had worked hard in trying to stop using his phone while at work and he was doing well. However, when he was faced with the relationship break-up and the possible loss of access to his daughter he was left with no choice. The complainant claims that he had hoped that the site operations manager would have been more understanding in the circumstances while he sought to find a resolution. However, this was not the case and he was instead found subject of the disciplinary process, which ultimately resulted him in him losing his job. The complainant claims that although he did not look for assistance, it was obvious that he was going thought a difficult time and everyone could see it in him. He said that although he knew of the possible consequences he took the risk of trying to sort out his private life and his work life together. The complainant claims that the loss of his job has been very difficult on him, he is trying to cope with the normal day to day life expenses and trying to support his young daughter. He claims that he has been looking for work since his dismissal but has not been able to secure a job. He claims that he now has a normal routine in place in his life, that the issues with his ex-partner are now less urgent. He claims that he now has his addiction with his mobile phone very much under control and he asked that I find in his favour and has asked to be reinstated to his position of security guard with the respondent.    

Findings and Conclusions:

The Relevant Law Section 1 of the Unfair Dismissals Act 1977 provides that:   "dismissal", in relation to an employee, means— (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee. (b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or (c) the expiration of a contract of employment for a fixed term without its being renewed under the   same contract or, in the case of a contract for a specified purpose (being a   purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose; Section 6 of the Unfair Dismissals Act, 1977 provides: “(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. … (4) 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 or more of the following: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee (c) the redundancy of the employee, and (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by   or under any statute or instrument made under statute. ….. (6)   In determining for the purposes of this Act, whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were substantial grounds justifying the dismissal. Conclusion The material facts in this case, including the fact of dismissal, were not in dispute between the parties. The respondent contends that the complainant was dismissed on the grounds of gross misconduct after it transpired that he had breached the respondent’s policy on the use of his personal mobile phone while on duty. It claims that this was a constant and reoccurring issue with the complainant. The complainant does not dispute that the incident which gave rise to his dismissal constituted a breach of the respondent’s procedures. However, the complainant contends that the penalty of dismissal was totally disproportionate when all the circumstances of the case are taken into consideration and that an alternative sanction would have sufficed given the mitigating factors in this case. Accordingly, the only issue which I must consider in the context of deciding the fairness or otherwise of the dismissal in the present complaint is whether the respondent acted reasonably in dismissing the complainant. The approach of whether a reasonable employer would have dismissed the employee in the same circumstances was explained by Noonan J. in the High Court case of Bank of Ireland –v- James O’Reilly [2015] IEHC 241 where it was held that: “…the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4),  which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes it clear that the court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland v. Lindsay UKEAT/0506/09/DM.”I respectfully agree with the views expressed by Judge Linnane in Allied in Allied Irish Banks v. Purcell [2012]   23 ELR 189, where she commented (at p. 4): “Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93: ‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employers view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.” The incident which gave rise to the complainant’s dismissal was a constant and reoccurring theme in the work life of the complainant while working with the respondent. The complainant admits to the fact that he regularly used his mobile phone while at work and although he claims that he understands the need for the restriction of personal mobile phone usage and the possible threat to his employment by refusing to abide by this rule, he continued to do so regularly. He claims that he had reason for using his mobile phone at the time and these mitigating factors should have been taken into consideration and given the chance now he would not use his mobile phone at work again. The respondent’s evidence is clear; it has given the complainant countless chances in the past and he still did not change his behaviour. He never raised any issue with it as to why he was on his mobile phone in the lead up to his dismissal in July 2016. Notwithstanding the obvious personal difficulty in his life, he knew the use of his mobile phone was wrong, could be adjudged as an act of gross misconduct as he had only within the same year nearly lost his job because of similar actions. The complainant has a history of failing to observe this rule and the consequences could have in the past been very costly to the respondent and its client. The complainant is fully aware of the disciplinary consequences for breaches of this requirement and made a conscience decision to continue to stretch the goodwill and patience of his employer.     Having regard to the evidence adduced, I am satisfied that the role of a security guard in this environment requires their full and concentrated attention and this is of paramount importance in the industry within which the respondent operates. I am satisfied that any breaches of this rule could have health and safety implications and indeed possible reputational damage for the respondent with the potential loss of a major client. I am satisfied that the respondent went to great lengths prior to the incident to give the complainant an opportunity to change his behaviour. I am satisfied that the complainant was fully aware of the importance and significance in terms of compliance with these procedures and of the potential disciplinary sanctions, up to and including dismissal, for any breaches. I find that the complainant’s actions clearly constituted a breach of the respondent’s personal mobile phone policy and that this breach when taken into consideration with previous breaches amounted to gross misconduct under the respondent’s established disciplinary procedures. Also, although it was not raised by the complainant in this complaint, I believe that it is worth mentioning, that the manner in which the respondent conducted the investigation, disciplinary hearing and appeal in this case fully complied with fair procedures and natural justice. In all the circumstances of this case, I find that the actions of the respondent were within the range of reasonable responses open to it and that substantial grounds did exist to justify the complainant’s dismissal. Accordingly, I find that the complainant was not unfairly dismissed by the respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the complainant’s claim under the Unfair Dismissals Act is not well founded.    

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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. I find that the complainant was not unfairly dismissed by the respondent within the meaning of Section 6 of the Acts. Accordingly, I find that the complainant’s claim under the Unfair Dismissals Act is not well founded.

Dated:   18.12.2017

Workplace Relations Commission Adjudication Officer:  James Kelly

Key Words: Unfair Dismissals Acts 1977 to 2015 – security guard – mobile phone use while at work- not unfairly dismissed.