MND177

Background

The Respondent operates a facilities services company. It employed the Appellant as a security officer commencing in 2003. He was assigned to provide security services on a client site in Coolock in Dublin. It is common case that on 3 May 2015 while on duty and in his uniform, he spent 20 minutes in a leisure establishment on that site playing on the slot machines. The Respondent conducted an investigation into the Appellant’s behaviour and decided that it amounted to gross misconduct. In the course of that investigation several other charges were put to the Appellant which were found to be well founded. On foot of those decisions the Respondent took a decision to dismiss the Appellant from his employment.

The Appellant appealed against that decision through the Respondent’s internal procedures. The Respondent assigned a senior manager to hear the appeal. Having done so he dismissed all of the charges against the Appellant with the exception of the first mentioned charge viz play slot machines while on duty. He decided that the Appellant was guilty of gross misconduct warranting dismissal. However in view of the Appellant’s service with the company he decided not to dismiss him but to give him a second chance. Instead he offered to reduce the sanction to a final written warning assign him to security duties on another site and made arrangements for him to undergo site specific training in order to take up the position. The Appellant underwent the training but after a short period decided that the alternative assignment was not acceptable. He so informed the Respondent. At that point the Respondent decided to dismiss the Appellant on the basis of the finding it had made that he was guilty of gross misconduct.

The Appellant submitted a complaint to the Workplace Relations Commission under the Unfair Dismissals Acts. The Adjudication Officer decided that the complaint was not well founded. The Complainant appealed against that decision to this Court.

Position of the Parties

The Appellant submits that he was charged with a series of alleged breaches of company rules. He submits that the Respondent relied on the written evidence of others when investigating those complaints. He further submits that he was not given an opportunity to challenge or test that evidence in cross examination. Finally he submits that CCTV evidence upon which the Respondent relied was not disclosed to him in an accessible format in good time to allow him prepare his responses. He submits that the absence of fair procedures tainted the entire process and that any decisions arising from it cannot stand.

The Respondent submits that it disclosed all information to the Appellant for his consideration and gave him ample opportunity to prepare and present a defence to the charges. It submits that all charges but one were rejected by the internal appeals officer and were not taken into consideration when coming to a decision to dismiss the Appellant. It submits that the sole charge that was upheld against the Appellant was that he spent up to 20 minutes gambling while on duty and in uniform and that in doing so he failed to carry out his duties as a security and put the reputation of the Respondent Company with its clients at serious risk. It submits that it nevertheless decided not to proceed immediately to dismiss the Appellant. Rather it decided to transfer him to another location and to give him an opportunity to continue his employment. It submits that when the Appellant decided he would not accept that transfer it had no option but to act on the earlier decision it had taken to dismiss the Appellant for gross misconduct.

Findings of the Court

The Court has considered the submissions of both sides and the evidence of Mr Hugh Moody who told the Court that he conducted the appeal hearing in this case. He told the Court that he dismissed all but one of the charges against the Appellant. He told the Court that the Appellant admitted that he had played the slot machines while on duty and in uniform. He told the Court that he considered this to be a total dereliction of duty and put the reputation of the Respondent Company at risk with its clients and the public. He said that he decided that dismissal for gross misconduct was justified but that he decided to give the Appellant another chance to continue in employment. He decided to transfer him to another site and arranged for him to undergo training. However when the Appellant refused to co-operate with that transfer he activated the dismissal that he considered warranted and justified on foot of his gross misconduct.

The Court finds that the Respondent’s position is not sustainable. It had found that the Appellant was guilty of gross misconduct and justified dismissal. However it decided not to dismiss him from his employment. Instead it offered a different sanction. It offered to transfer him to another location and arranged site specific training for him in that role. He underwent the training and then decided that he did not wish to continue on that site, which amounted to the Appellant ultimately deciding not to take up the offer of the alternative sanction.

At that point the Respondent simply proceeded to dismiss the Appellant without further engagement or warning and without the benefit of any procedure. Instead it sought to revert to the earlier gross misconduct charge and relied on that finding to justify summary dismissal.

The Court does not accept that justification. The Appellant had moved beyond that finding and was now complaining about the nature of his reassignment. He was entitled to do that and to expect that he would be dealt with through the normal staff management process. Instead he was met with summary dismissal on the basis of an incident that had already been dealt with and disposed of. The Court finds that there is no merit in that approach and that the Respondent cannot rely on the earlier incident having decided to deal with it by way of transfer rather than dismissal. Ultimately, the dismissal of the Appellant was not based on any of the substantive charges that had been made against him; rather he was effectively dismissed for deciding not to take up the offer of the alternative sanction. The Appellant was not given fair warning that his rejection of the offer of an alternative sanction would lead directly to his dismissal.

Accordingly the Court finds that the dismissal of the Appellant was unfair and cannot stand.

The Court also notes that the Appellant contributed substantially to the manner in which the situation developed and does not come to the Court with clean hands either. His behaviour while on duty was not acceptable and put his own employment and that of his colleagues at risk. Equally he did not reasonably engage with the site reassignment given the circumstances and the spirit in which the decision to transfer rather than dismiss him was taken by Mr Moody. Accordingly the Appellant must be considered to have substantially contributed to the manner in which this situation developed.

Remedy

In the circumstances the Court finds that the appropriate remedy in this case is to order the re-engagement by the Respondent of the Appellant with effect from 10 July 2017 and assigned duties as a Security Officer in a location determined by Management in accordance with the terms of his contract of employment dated 08 February 2011. The period between the Appellant’s dismissal and re-engagement should be treated as a period of suspension without pay which does not break his continuity of his service. Accordingly no complaint arises under the Minimum Notice and Terms of Employment Act.

Determination

The appeal is allowed. The decision of the Adjudication officer is set aside. The remedy is as outlined above.

The Complaint under the Minimum Notice and Terms of Employment Act does not arise and is dismissed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
LS______________________
23 June 2017Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.