ADJ-00002957

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002957

Complaint for Resolution:  

Date of Adjudication Hearing: 29/11/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure: 

In accordance Section 8(1B) of the Unfair Dismissals Act, 1977, 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.

Attendance at Hearing: 

Respondent’s Submission and Presentation: 

The complainant was dismissed from his position as a security guard with the respondent following two incidents.

Both incidents resulted from inadequate scrutiny of the CCTV footage by the complainant of the behaviour of customers who appeared to be acting suspiciously resulting in their being confronted with alleged theft of items when this had not, in fact, happened.

In one case the customer had paid for the goods and in another no goods were in the customer’s possession.

The respondent says both incidents resulted from failures on the part of the complainant to properly observe the incidents and to apply an established ‘three step’ set of evaluation criteria before intercepting a suspect. The complainant is fully familiar with this ‘three step’ process.

In evidence the Security Manager said that the store had a very large number of arrests per year and an approximately equal number of incidents where, even though there may have been strong suspicions, the circumstances fell just below the standard required for an intervention.

He said that this would be well known to the complainant who had the second highest number of arrests to his credit and therefore was very familiar with the standard operating procedures.

The respondent says that in each case the complainant failed to apply them with significant adverse consequences for the respondent. In fact the complainant missed out on two out of the ‘three steps’.

The first of the incidents took place on May 13th 2015 and this was followed by a disciplinary process which resulted in the complainant being given a written warning.

In the course of the disciplinary process the complainant admitted the shortcomings in his handling of the matter. The respondent submitted at the hearing that it felt it had sufficient justification to dismiss the complainant on the basis of this incident on its own but did not do so on that occasion.

However, he was advised in the outcome letter that should another issue arise ‘further disciplinary action may be taken up to and including your dismissal’.

He was told that he would be retrained in all security procedures and this happened after another, less serious incident in June.

The second serious incident took place on December 19^th, 2015 arising from a mistaken belief on the part of the complainant that a bottle of alcohol had been stolen. The complainant realised from further observation of the CCTV that it had been returned to the shelf but not before a colleague had set off to apprehend the suspects; he then did detain them and call the Gardai.

This has exposed the respondent to civil legal proceedings with potentially serious consequences.

In the course of the investigation and disciplinary procedure there were a number of steps.

An investigation meeting was held on December 29^th which considered statements prepared by the complainant and his co-worker. The Shop Manager felt that these were too short and very similar, one to the other.

In the course of this the complainant ‘acknowledged his error’.

A more detailed statement was submitted on December 20^th.

A second meeting took place on December 22^nd with the Store Manager and a note taker as before. The complainant was advised that he had the right to be accompanied but declined.

The interview covered points arising in the statement.

The next meeting took place on December 24^th.

The complainant was told that this was now a disciplinary meeting and again offered the option of having a companion at the meeting, which he declined. The complainant confirmed his agreement to the minutes of the previous meeting and he was suspended with pay pending further investigation until December 29^th. He was advised of a meeting to be held that day at 11.30 at which disciplinary action up to and including disciplinary action might be taken.

The meeting adjourned briefly and on reconvening the Store Manager communicated his decision, having considered other options, which was to terminate the complainant’s employment because of the seriousness of the allegations.

This was formally communicated by letter of December 30^th 2015 and he was offered the right of appeal, which was not exercised within the timeframe contained in the company procedures and therefore did not proceed.

Complainant’s Submission and Presentation: 

The complainant did not dispute the narrative above, except in relation to some matters of detail.

In respect of the first incident he says he was given insufficient information by his supervisor about the behaviour of the customer in the store.

He also said that he was not given sufficient training and, even when recommended following the May incident, it did not take place.

However he did confirm that he was aware of the important ‘three step procedure’ which had to be followed before intercepting a suspect before that incident. He denied missing out on one of the steps in the May incident.

He also confirmed that he did not adequately scrutinise the CCTV footage in the December incident which showed the bottle being replaced.

Finally he felt that in view of his loyalty and good service some alternative to dismissal should have been found

Findings and Conclusions 

The facts in the case are not in dispute. The complainant was involved in three incidents which are relevant to consideration of the matter.

The first of these resulted in a written warning following a disciplinary hearing on May 21st 2015.

The company procedures are unusual in that they contain provision for only one written warning but the language used in relation to it makes it clear that it is what would generally be regarded as a final warning. Certainly, in this case the complainant was on notice that a further infraction would put his employment at risk.

While there was some reference to a need for further training arising from this incident it did not take place (according to the respondent) until after a second incident in June which did not result in a disciplinary sanction. The complainant disputed that any additional training took place. I see no reason to doubt the direct witness evidence from the Security Manager that there was some communication with the complainant on his performance lasting about an hour.

The third incident, on December 19^th in due course led to the dismissal of the complainant.

Legal submissions on behalf of the respondent focussed heavily on the issue of an adjudicator substituting their judgement for that of the employer as to what constitutes an acceptable sanction.

As will be seen below that issue does not arise so much in this case and I do not propose to stray into that territory.

However, it is important to review the case having regard to the principles which normally apply to workplace disciplinary processes.

Generally speaking a complaint of unfair dismissal will be assessed by reference to whether the respondent had reasonable grounds for triggering a disciplinary process, whether it was conducted to an acceptable standard of fairness, and if so, whether the disciplinary sanction was appropriate, or fell within a range of what might be regarded as reasonable sanctions.

On the facts of this case the first question is easily answered. Protecting any retail business from loss by theft or shoplifting is vital. This was a large store operating in an area which caused it to be particularly vulnerable to criminal behaviour, according to the evidence of its Security Manager.

While the complainant made an issue of what he saw as deficits in his training in fact he was one of the most successful of the respondent’s security officers by volume of ‘arrests’. He confirmed in evidence that he fully understood ‘the three step’ process referred to above and so this, critical process, did not form part of any alleged training deficit on the part of the complainant.

Evidence was also given by the respondent’s Security Manager of the equally large number of suspicious incidents in which the criteria for intervention are not quite present and in which security operatives have to decide to do nothing, for want of meeting the requirements of the ‘three steps’ and it is safe to assume that the complainant has had to make many such calls.

Accordingly, the December incident, and the failure of the complainant to diligently follow procedures which were required and well known to him, and which resulted in significant possible consequences for the respondent fell well within the territory required to ground the disciplinary action which followed.

Turning to the procedure the picture is slightly less clear. The store manager undertook the investigation.

A meeting took place on December 19^th, described in minutes as an ‘Investigation Meeting’.

At this meeting the complainant essentially accepted the facts of what happened, saying among other things that he could not explain why he ‘did this’. The Manager had secured statements from the complainant (and a colleague who was also the subject of the investigation) which he regarded as inadequate. He asked for revised versions and the complainant undertook to provide them.

He did so the following day.

A second meeting took place on December 22^nd, also described as a ‘follow on investigation meeting’. Again the complainant appears from the minutes to have accepted the facts alleged to have happened.

On December 24^th a disciplinary meeting took place. It was established at the Adjudication hearing that no notice in writing was given to the complainant about this meeting and the following appears in the minutes.

[The Manager] asked [the complainant] to come into the office and explained to [the complainant] that this is now a disciplinary meeting’.

He was then offered the opportunity to have a companion at the meeting which he declined. The minutes of the previous (investigation) meeting were read out and the complainant was asked if he agreed with what was read out. He did.

The manager stated that he was ‘still thinking this over as it is a very serious issue’ and stated that he ‘needed a clear head to review all the information to hand’.

He then suspended the complainant and stated; ‘I must advise you that disciplinary action up to and including dismissal may be taken’. (Emphasis added)

A further meeting was arranged on December 29^th. Again there was no written notice of the meeting, its purpose nor any charge specified against the complainant. He was advised at the outset that it was a disciplinary meeting and invited to have a companion present. Again he declined.

After he reviewed the narrative the Store Manager adjourned the meeting to make a decision, having heard the complainant state that he could offer no explanation for his actions. On reconvening the manager communicated his decision to terminate the complainant’s employment.

The meeting ended amicably with the complainant shaking hands with the Manager having earlier thanked him for conducting the meeting ‘in a very professional manner’.

This is not a view I can share.

There are certain simple rules about the conduct of disciplinary processes which were seriously breached here.

It is desirable that there should be clear water between the investigation and disciplinary phases. This does not necessarily mean that they must be conducted by different people, but it is better that they should be where this is possible, and in a large business such as the respondent’s it was eminently possible.

However, I do not impugn the process on that basis.

After all an investigator is merely gathering facts at the investigation stage and not governed by strict rules of fair procedure such as are required in a determination of rights, provided the processes are separated and the investigator confines him or herself to fact finding. It is unlikely that the same facts presented to the decision maker by an independent investigator would have influenced the final decision.

That said, what is absolutely essential is that there be very clear water between the holding of the two processes, even where they are conducted by the same person, and the rules of fair procedure fully applied to the second stage where the complainant’s rights are in play.

In this case the complainant was given no written notice of any of the meetings.

The meeting of December 24^th, described as a ‘Disciplinary meeting’ was not a disciplinary meeting as is clear from the minutes.

No charge was presented to the complainant at any stage.

The Manager said in the course of that meeting that he needed time to ‘review all the information to hand’ and he advised the complainant ‘that disciplinary action up to and including dismissal may be taken. (Emphasis added).

Therefore, it is quite clear that no disciplinary proceedings took place at this meeting, despite the designation of it in the minutes. This is reinforced by the statement of the Manager to the effect that disciplinary action ‘may be taken’. It could hardly be clearer then that this was not such a meeting.

The requirements of fair procedure in this regard are clear. They are that a person be advised in writing and in advance of what they are charged with both in terms of the nature of the offence (serious, gross misconduct etc), the facts underpinning the charge, the right to a companion at the hearing and the possible outcome in terms of the likely range of sanctions if the charge is upheld.

It was submitted on behalf of the respondent that once the facts had been admitted by the complainant then the disciplinary hearing was akin to a sentencing hearing in the criminal system.

It is no such thing.

In those circumstances the accused has been charged with a defined criminal offence and has pleaded guilty; the accused has not simply admitted the facts on which a criminal offence might be based, which is all the complainant had done in this case. A more correct comparison with what happened here would be if a court were to sentence a person on the basis only of the statement he made to the Gardai.

The question for a decision maker in a disciplinary hearing is whether the facts as alleged, (or even admitted) ground a ‘charge’ (i.e. a specified breach of the disciplinary code) of which the employee has been given prior notice so that he can prepare and argue his case.

The decision maker is required to hear the case and to do so impartially. On the facts in this case the prospects for the complainant looked bleak, but no prejudgment of any issue on the apparent bleakness of the facts is acceptable within the rules of fair procedure.

The lack of clarity and precision in the conduct of the various steps in the procedure between December 19^th and 29^th is surprising (and unacceptable) in a large company such as the respondent with good HR experience and resources. The seamless movement from investigation into disciplinary process is bad practise and will generally be fatal to the fairness of the overall process.

They combined to breach the complainant’s rights to fair procedure and render the dismissal unfair on that ground.

The complainant’s losses were estimated at €3,594 and I take into account in my award the very substantial contribution he made to the situation.

Decision:

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.

The complainant was unfairly dismissed and I uphold complaint CA-00004273-001 and award him €1,000.

Complaint CA-00004273-001 was withdrawn at the hearing. 

Dated:   15 February 2017