Complainant

Respondent

Anonymised Parties

A Security Person

A Night Club

Act

Complaint Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under Section 8    of the Unfair Dismissals Act, 1977

CA-00008974-001

04/01/2017

The complainant commenced employment with   the Respondent on 1^st September 2015 part-time as a member of security   staff and was issued a permanent contract on 1^st December   2015.

On 13^th/14th August 2016 an   incident took place during the course of the complainant’s shift whereby it   was alleged that the complainant used excessive force with a customer, his then   girlfriend, Ms X, who was attending the club with other people. An investigation took place and his   employment was terminated on 29^th September 2016, on the grounds   of gross misconduct. This decision was   appealed by the complainant and the decision to dismiss was upheld which he   was advised of on 13^th October 2016.

The respondent advised that a complaint was received in   writing from Ms X through Ms X’s solicitor dated 25^th August 2016   (with a follow-up letter clarifying dates on 30th August 2016) making   allegations against the complainant.

The complainant was invited to an investigative meeting in   a letter dated 29th August, signed 30^th August in relation to a   meeting for 31^st August (incorrectly dated 31^st   September) ) 2016 by the Assistant Manager Mr A. The complainant was afforded the right to   have somebody attend this investigative meeting but declined. He was asked about the incident that   occurred 13^th/14^th August and given an opportunity to   view the cctv which he did to which the complainant replied that the cctv   “speaks for itself”. The outcome of   this investigative meeting was that it was determined that he used undue   force and he was invited to a disciplinary meeting in a letter dated 3^rd   September 2016 to be held on 17^th September 2016.

The complainant attended the disciplinary meeting   conducted by the General Manager Mr B, with a friend as a witness. He was given another opportunity to view   the cctv but declined. He was advised   that a decision would issue within one or two days and on 29^th   September 2016 the complainant received notice that he was deemed guilty of   gross misconduct resulting in immediate dismissal from the Company and was   advised that he could appeal the decision if he wished to the Managing   Director Mr C. It was contended by the   respondent in the letter following the appeal that the complainant used   excessive force against the customer/girlfriend by “putting your hands on her throat/shoulder area” and that the cctv   footage provided proof of same.

It was the view of the respondent that this action   amounted to a serious violation of the company’s disciplinary policy and   contract of employment which details that a list of grave breaches include “violence towards another employee or   customer”, as well as “fighting, threatening   or striking another employee, customer or guest” and also “rudeness to a guest or customer”. It is further stated that such cases of   gross misconduct will result in “summary   (immediate) dismissal”. The   complainant had been afforded a copy of the handbook and thus was aware that   such an incident could result in the termination of his employment.

It was also contended that respondent fully compiled with   their disciplinary procedures including affording the complainant an   opportunity to review cctv footage and the right of appeal which he availed   of but that the decision still stood. Furthermore they advised also that the   complainant never showed any remorse and indeed was quite belligerent during   their investigation.

Evidence of Mr A – Assistant General Manager

He alleged that Ms X made an allegation that she was   physically pushed by the complainant and he asked her for this in writing   which she later did through her solicitor.   He looked for incident reports after the solicitor’s letter was sent   as no incident report forms had been completed at the time of the   incident. Based on cctv and incident   report forms he believed undue force had been used and thus it was escalated   to a disciplinary meeting. He was   unsure whether he had handed the complainant the letter of invitation to the   investigation meeting before or at the start of the actual meeting.

Evidence of Mr B -General Manager:

He regarded the incident as gross misconduct as per the   respondent’s policy and that dismissal was warranted. He advised that the cctv showed everything   and he also expressed annoyance that the complainant had breached a procedure   he had rolled out 2 weeks before the incident, regarding removing customers   from the premises between 02:00-02:30.   He was not certain whether this also influenced his decision but   confirmed that he never made reference to it during the meetings with the   complainant.

There was a delay in him issuing a decision owing to a   very busy time for the nightclub as students were returning to college. He did not consider suspension with pay   during the investigation as he felt that might infer guilt.

Evidence of Managing Director:

The MD confirmed that he met with the complainant and read   the statements. He had been aware of   the incident in a general manner, prior to hearing the appeal. He confirmed that he did not offer the   complainant another chance to review the cctv but he did not refuse him to   look at the cctv if he wished. There have been occasions where he has   overturned decisions to dismiss but did not feel this was warranted in this   case.

It should be noted that a copy of Ms X’s   solicitor’s letter was forwarded after the hearing and copied to the   complainant who was given time to respond and did not respond.

The complainant advised in evidence that while working on   13^th/ 14^th August his girlfriend (at the time), Ms X,   and some friends of hers were in the nightclub. One of those with Ms X was intoxicated and the   complainant approached this person asking him to calm down and he advised   other security personnel of the behaviour of this person. He had to approach this individual again because   of his behaviour and the man replied that he was leaving. Ms X was also intoxicated and started to   complain and the complainant told her to leave him alone. Two other security personnel approached and   advised him to go back inside the night club which he did. He confirmed that he raised his voice but denied   that he touched Ms X and said that the cctv would indicate same. He said at the time the incident was not   deemed serious as nobody involved filled in an incident report form and that   the incident report forms were only filled in after Ms X sent in a letter   through her solicitor and that he never received a copy of this letter. The complainant detailed that he was not   suspended with pay during the investigation.   He advised that he only became   aware of the complaint nearly 3 weeks after it occurred and asked the Assistant   Manager at the time, Mr A, if he should be worried but was told no.

He said he was never told the purpose of the investigative   meeting and was only handed letters at the actual meeting ‘inviting him to   the meeting’ and that the assistant manager said at the time, “I was supposed   to give you this”. He did not bring   anyone to this meeting as he did not feel it was serious enough. After a disciplinary meeting conducted by   the General Manager, Mr B, which advised that his employment was terminated,   he appealed to the Managing Director but the decision stood.

He outlined that he felt the incident was utilised by the   respondent to get rid of him as there had been a reference in a newspaper   to a sexual assault charge that he was   due to appear in court for. This   article appeared in the paper on 20^th September 2016 while he was   awaiting the decision of the disciplinary meeting. He advised that the respondent was aware of   his charge and wanted him gone.

Following the hearing details of his loss of earnings and   copies of wage slips were forwarded and copied to the respondent who were   given time to respond and did not respond.  

Pursuant   to Section 6 of the Unfair Dismissals Act 1997 as amended, 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 are substantial grounds   justifying the dismissal. The burden of proof is firmly on the Respondent.

I must   consider my function in the case of alleged misconduct which has been well   established and is set out in Looney & Co. Ltd. v. Looney (UD 843/1984):

“It is not for (me) to seek to establish   the guilt or innocence of the claimant, nor is it for (me) to indicate or   consider whether (I), in the employer’s position, would have acted as (the   respondent) did in his investigation, or concluded as he did or decided as he   did, as to do so would substitute (my) mind and decision for that of the   employer. (My) responsibility is to consider against the facts what a   reasonable employer in (the respondent’s) position and circumstances at that   time would have done and decided and to set this up as a standard against   which the employer’s action and decision be judged.”

Thus, I   am not here to seek to establish nor does it establish that the employee is   guilty or innocent of the alleged wrongdoing. And further, I must not   substitute my decision for that of the employer but must ask if a reasonable   employer in the similar circumstances to those facing the respondent would   have dismissed the employee. The reasonable employer test is satisfied if

  
• The employer believed that the employee misconducted himself as        alleged? If so,
  
• Did the employer have “reasonable grounds to sustain the belief?        If so,
  
• Was the penalty of dismissal proportionate to the alleged        misconduct?

(Noritake   (Irl.) Ltd v Kenna (UD 88/1983).

The   respondent details that they regarded the allegations made by Ms X in the   letter from her solicitor as very serious.   It was very clear to them from the cctv that the complainant made   contact with Ms X and that they were left with no alternative but to   terminate his employment as is provided for in his contract of   employment. This decision was taken   after an investigation, a disciplinary meeting and the complainant was   afforded the right of appeal but the decision stood. They denied that the newspaper report of   20th September in any way influenced their decision to dismiss.

The complainant challenges the fairness of the   dismissal, for a number of reasons. He   alleged that he never touched Ms X for which he was ultimately dismissed, and   that furthermore the decision to dismiss was a decision taken owing to a   report in the newspapers that he was to appear in court over a sexual assault   charge. He states that while the respondent gave the impression of having   followed due process, the reality was that a letter inviting him to a meeting   was only issued to him at the meeting.   He detailed that the respondent did not deem the matter serious enough   until after the solicitors letter arrived as no incident report forms had   been completed until then nor was he suspended with pay during the   investigation and no other alternatives to dismissal were taken into   consideration. Furthermore, he advised that he never saw the letter that was   sent from Ms X’s solicitor – which had been the cause of the initial   investigation.

Therefore,   with regard to whether the employer had a genuine belief based on reasonable   grounds that the employee was guilty of the alleged misconduct, I find that:

•   The Complainant was never given a copy of Ms X’s   letter of complaint and no satisfactory explanation was provided for their   failure to do so. Indeed I find it   quite extraordinary that not only was this letter never given to the   complainant but it also was not available at the hearing and had to be   forwarded to both the Adjudicating Officer and the complainant’s   representative after the hearing. This   letter details the full extent of Ms X claims which raised the question of   how much was the respondent influenced by the content of Ms X’s solicitor’s letter   in determining the guilt of the complainant but which notably they did not   share with the complainant.
•   Neither of the other two security personnel who   were witnesses to the incident of 13^th/14^th August 2016   regarded the incident serious enough to complete an accident report form   until they were requested to do so after the solicitor’s letter arrived.
•   Neither of the other two security personnel who were   witnesses to the incident mentioned that the complainant made contact with Ms   X when they did fill in the incident report form. While I understand that Mr A reviewed the   cctv footage I am unclear how it was reasonable for him to come to the   conclusion, as he details in his letter dated 31^st August, that   the complainant used undue force based on inter   alia reports from two other   security personnel who do not mention contact with the customer.
•   Both of the two security personnel who witnessed   the event, referenced that it was a heated incident and that the complainant   had to be directed to return inside by them.
•   While both the complainant and respondent were   insistent that the cctv would establish the guilt or innocence of the   complainant in terms of what actually happened and having reviewed the cctv   at their request, I cannot say with any certainty, whether the complainant made   contact with Ms X.
•   Mr A appeared uncertain in his evidence regarding   whether he provided the complainant with a letter inviting him to a meeting   in advance of the meeting or at the actual meeting. This uncertainty in evidence would lead me   to prefer the evidence of the complainant with regards to his evidence that   he received the letter inviting him to a meeting at the actual investigative   meeting. However, with that in mind,   the complainant signed minutes after the meeting advising he was “100% okay   on own” and did not make any noted objection at the time.
•   The complainant was advised that following the   meeting of 17^th September 2016 that a decision would issue “within a day or two as to what   disciplinary sanction if any is to be imposed” but this decision was not   delivered until 29^th September 2017 as the nightclub was busy with   students returning to college.
•   The complainant was never suspended with pay   during the investigation as the respondent felt this might “infer guilt”,   which is surprising considering the respondent repeatedly emphasised the   seriousness of the allegation.
•   The respondent admitted that he was also annoyed   that the complainant breached procedure by removing customers between the   hours of 02:00 – 02:30 and seemed unclear whether this influenced his   decision albeit he never mentioned it to the complainant or asked the   complainant details around this specific issue.
•   There has been no evidence put forward to suggest   that the newspaper article which referenced the complainant, influenced the   decision of the respondent as the investigation was near completion.

The requirement   for fair procedures and a fair hearing has been reinforced in Gallagher v Revenue Commissioners [1995] E.L.R. 108 (No.2) [1995] which details that the complainant was entitled to fair procedures and a fair hearing, in particular   with regard to the timely conclusion of the investigation which in this   instant case a decision was prolonged due to ‘business reasons’ . If things were as serious as was suggested,   why was it not a priority to deliver the outcome of the disciplinary meeting   to the complainant within their one or two days, and I find it difficult to accept   that students returning to college was a sufficient reason.  

Furthermore,   by withholding the solicitor’s letter the respondent failed further in their   application of the principles of   natural justice which as detailed in C.   v. The Mid-Western Health Board [2000] ELR 38   whereby the complainant had the   right to know the full case against him. Ultimately, where “the principles of natural justice were not   complied with” the decision to dismiss has been deemed unfair as   determined in Vitalie Vet V   Kilsaran Concrete, Kilsaran International Ltd [2016] 27 E.L.R. 237.

No satisfactory   explanation was given by the respondent for their failure to suspend the   complainant. I find it unusual that if the complainant’s behaviour was considered so   serious that they would not suspend him with pay pending the investigation. As seen in case of Duffy -v- Hugh McAvoy T/A ‘Talk To Me’ UD 1048/2009) a failure to suspend an employee in   gross misconduct situations may undermine the gross nature of the employee’s   behaviour as it   brings into question whether it was something   that warranted dismissal in first place.   While it would appear that the complainant should have removed himself   from the incident with his girlfriend and her friends earlier on rather than   getting involved with Ms X in the manner which he did, it is not evident that   the employee’s   action resulted in a sanction proportionate to his wrongdoing. It is necessary in this case to apply “the   band of reasonable responses” test

Did the employer believe that the employee misconducted himself as   alleged?

It would appear so based on the letter from Ms   X’s solicitor’s letter.

Did the employer, therefore, have “reasonable grounds to sustain the   belief?  

I believe because   of the failure on the part of the respondent to ensure that the laws of   natural justice were applied in terms of: making the complainant aware of the   allegations against him by providing him with the solicitors letter; weighing   up all the evidence against him including the statements of the other   security personnel and not just what they alleged they saw in cctv;   responding in a timely manner, and suspending with pay if they felt that the   incident was serious enough; as well as not allowing other alleged breaches   to influence their decision unless they were willing to present those   allegations to the complainant - would not indicate reasonable grounds to   sustain the belief.

Having considered the written and oral submissions   of the parties, and applying the reasonable test, I find that the dismissal   was unfair.

In assessing redress, I take account of the role   played by the complainant in the circumstances leading to the dismissal, allowing   personal issues to enter the workplace and a lack of remorse for same. For that reason I hold that the   Complainant contributed to his own dismissal and I am reducing his award by   20%. In respect of mitigation, the complainant outlined that he has recently   qualified in another area and is looking for work in that area. He has also been in receipt of social   welfare as well as working part-time.   Based on his loss of earnings, expected loss of earnings, his   contribution to dismissal I award €3,000 for the unfair dismissal.

I find   that the complainant was unfairly dismissed and the complaint succeeds. I hold that the Complainant contributed to his own   dismissal and I am reducing his award by 20%.   Based on his loss of earnings, expected loss of earnings, his receipt of   social welfare as well as his contribution to dismissal in accordance with s.7 of   the Act, I order the Respondent to pay the Complainant the sum of €3,000 for the unfair dismissal.

Unfair dismissal, alleged   assault, laws of natural justice