Complainant

Respondent

Anonymised Parties

A Security Operative

A Hotel

Representatives

Daragh MacNamara B.L. instructed by P. O’ Reilly Solicitors

Michael McGrath IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00004462-001

13/05/2016

The complainant was employed as a security operative in a large hotel. He commenced employment on June 21^st 2006.

In the early hours of a Saturday morning he chanced upon two guests on one of the hotel’s corridors. He had, at that time no particular reason to take notice of their conduct.

The following evening when he returned for work his supervisor drew attention on the CCTV system to a couple engaged in intimate sexual activity, but not intercourse, in one of the hotel’s corridors. No action was taken by either man in relation to what they saw.

Much later in the early hours of the following morning (around 4 am) the complainant was trying to persuade guests still in the bar to finish up their drinks and leave.

He noticed that one of the guests was the woman he had seen on the CCTV footage referred to above. In the course of an exchange between them he made a reference to her conduct in the corridor the previous night and to the CCTV footage.

She asked to see it and he agreed as she said she had no memory of the incident; accompanying her to the Security Base which housed the CCTV facility.

His supervisor colleague was there and they both entered, viewing the footage. The guest made some remarks about the sexual nature of the material but that aspect of the narrative ended there.

Later that day, on checking out of the hotel she made a reference to the incident and made a complaint.

Both security personnel were charged with ‘gross misconduct’.

Following an investigation and disciplinary process the complainant was dismissed on December 10^th 2015 and his colleague was administered a ‘Final Written Warning’.

The respondent says that the actions of the complainant represented gross misconduct and broke the relationship of trust that it expects from employees engaged specifically in the particular type of work in security.

He erred in engaging with the guest about the incident in the first place, then in agreeing to show her the footage, and finally in actually doing so.

The respondent fully complied with its fair procedure obligations in the conduct of the disciplinary process.

An investigation was held, followed by a disciplinary process on November 24^th 2016 in the course of which the complainant’s rights were fully observed and the respondent complied with all the expected requirements of fair procedure, and on conclusion of the initial disciplinary process he was facilitated with an appeal.

The complainant was charged with two matters;

That he had demonstrated inappropriate and offensive behaviour towards a guest in the hotel, and

That he had shown ‘flagrant disregard’ for the procedures in the hotel by allowing two guests of the hotel to enter the security to view CCTV footage.

These allegations were upheld by the initial decision maker; the hotel’s Financial Controller and subsequently also upheld on appeal to a Director of the hotel group.

The appeal adjudicator found that the facts as outlined above to be true and that the complainant knew the relevant procedures and had previously admitted only other hotel staff or members of the Garda Siochana on instructions of the management.

He also drew attention to the fact that the complainant has not had any direct involvement in the incident which gave rise to the problem, yet decided to mention the matter to a hotel guest

The narrative as outlined above is not disputed.

The complainant says that he agreed to allow the guest to see the CCTV footage as she was concerned about the possibility that she had been the subject of a more serious sexual assault, as due to excess alcohol consumption, she could not recall the incident.

He only agreed to let her see it because she asked to see it.

He says that neither of the matters with which he was charged is sufficient to ground a charge of gross, or any misconduct. He accepts that it was an error of judgement which merited nothing more than an oral or written warning.

In relation to the process he is also aggrieved that he was not given the opportunity to challenge the evidence of the guest.

Finally, he says that there is unfairness in the disparity in respect of the penalty imposed upon his co-worker who was his supervisor and yet not only admitted the guests to the CCTV room but actually played the footage for the. (He was given a final written warning, although he too was charged with gross misconduct).

The facts in this case were not in dispute. The events as described above were common to both parties.

Unfair dismissals need to be considered against three benchmark principles.

Were there sufficient grounds for the employer to initiate disciplinary action against the complainant, was a procedure applied in accordance with the requirements of fair procedure, and finally, was the sanction within the range of reasonable responses by the employer.

I find that the answer to the first of these questions is yes. There were sufficient grounds to initiate the proceedings on the basis of the facts known to the respondent. It had a written complaint from a guest in respect of a very sensitive matter.

In general, the answer to the second question is also yes. The complainant was given notice of the hearing and the charge, advised of his right to be accompanied etc.

So the procedures followed by the respondent were compliant.

The main issues that arise for decision concern the classification of the offence as ‘gross misconduct’, the sanction, and the alleged disparity of treatment of the complainant vis a vis his co-worker.

A finding of gross misconduct against an employee is grounds for summary dismissal under the respondent’s procedures. While a charge of serious misconduct may also justify a sanction of termination of employment it does not fetter the discretion of the decision maker in quite the same way in assessing the appropriate sanction.

A charge of gross misconduct does, and if inadequately formulated it puts a person on an inevitable slippery slope towards a termination.

It is open to an employee to actually challenge whether a charge against them is properly formulated as ‘gross misconduct’ and in any event this will be scrutinised ab initio on appeal to the WRC.

Nonetheless caution is required in formulating a charge as ‘gross misconduct’ if this is simply a device to enhance the possibilities of a termination.

In this case I am reassured that it was not for two reasons.

Firstly, I feel that having regard to the nature of the complainant’s role, the nature of the incident and the potential implications for the respondent the conduct of the complainant was of a very serious nature.

Evidence was given of the ‘code of conduct’ for security staff which the complainant acknowledged he had seen, and whose contents would scarcely be a surprise to any reader.

The complainant stepped considerably outside their boundaries in his actions. The complainant accepted that he was aware of the provisions of the code.

Secondly, the Financial Controller of the respondent who conducted the disciplinary hearing gave evidence that she did, in fact, actively consider whether a lesser penalty than dismissal would be appropriate.

Her evidence is credible because in the case of the complainant’s supervisory colleague, also charged with gross misconduct, she did exactly that.

This removes the question in my mind as to whether formulating the charge as gross misconduct may have been only a device to facilitate the termination of employment, taken with my own assessment of the actions which gave rise to the disciplinary proceedings as being very serious.

But it raises a final question, argued by the complainant related to the consistency of the sanction as between the complainant and his colleague.

Bear in mind the extent to which the supervisor was complicit in, or in any event acquiesced in the final act in the drama, the actual showing of the CCTV footage. It was stated in evidence by the complainant that the supervisor actually played the footage for the guest and her companion.

Also, he did nothing to prevent the guest entering the Security station.

There is a requirement that the application of discipline should be consistent and, for example, not used to make an ‘example’ out of someone. Such actions breach the right of an employee to have a case determined objectively and on its merits.

In the case of Burke v Nurendale t/a Panda Waste [2015] IEHC 214 the Labour Court held;

       “At its most basic level the requirement of fairness in employment dictates that similar situations        be treated similarly. It follows that where an employer acts inconsistently in responding to    misconduct, dismissal can be rendered unfair”.

Without delving too deeply into finer points of causality, looking at the actions of the parties there is no doubt that the complainant bears the greater responsibility for causing the problem. He raised it with the guest, which he should not have done, and then permitted her and a companion to accompany him to the Security station.

Undoubtedly, the supervisor too had an obligation to refuse them entry and failed to do so, and given his particular level of responsibility it may be said that at that point in the unfolding events he bore equal responsibility.

This is a fine decision, and may, like in the nature of adjudication may boil down in certain circumstances to a matter of opinion.

Yet a WRC adjudicator should be slow to disturb a decision except where the original decision maker strayed outside the range of reasonable responses, did not conduct an honest and independent appraisal of the facts before her and the merits of the cases, or reached a perverse conclusion on the facts before her.

I find that the decision maker conducted a fair hearing and process.

Her conclusion was a bona fide call, after due consideration as to the relative merits of the two cases and therefore does not fall foul of the inconsistency rule. In the Panda Waste case the complainant had been dismissed in circumstances where a co-worker, if anything more responsible for the misconduct had not been charged at all. The co-worker was also the brother of the owner.

Having regard to all of the above considerations I find that the decision to dismiss the complainant was fair.

For the reasons set out above I do not uphold complaint CA-00004462-001 and it is dismissed.

Unfair dismissal, gross misconduct, consistency in sanction.