EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Kieran McBride, -Claimant UD224/2015
against
J & S Black Limited T/A Voodoo, -Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms E. Daly B.L.
Members: Mr. D. Morrison
Ms R. Kerrigan
heard this claim at Letterkenny on 30th May 2016
and 19th July 2016
Representation:
Claimant: Mr. Patsy Gallagher, Gallagher & Brennan, Solicitors, House B, Carnamuggagh Upper, Kilmacrennan Road, Letterkenny, Co Donegal
Respondent: Mr. Gordon Curley, O'Gorman Cunningham & Co, Solicitors, 16 Upper Main Street, Letterkenny, Co Donegal
Background:
Dismissal is in dispute, respondent say claimant walked off the job/resigned. Claimant worked as a night club security/bouncer, he claimed he got no terms of employment or contract.
Lots of documents produced which company purported to have his signature/ some obviously not his signature. Claimant did have a personal injury claim against the company in May 2013. He claims they wanted rid of him and did not back him up when he tried to have somebody removed from the club whom he witnessed with white powder in the toilets on 18th October 2014. The person was searched and nothing was found but he was told by T that he dealt with the incident it the wrong way. He was shocked as it was something they had done and backed each other up 1000 times. The claimant walked away that night but contacted PW to see if he was working the following weekend. Some correspondence took place (claimant says he handed a letter to PW on 23rd-(P W will say no). He got his P45 on 4th Nov.
Respondent’s case:
The Tribunal heard evidence from TmcG who is the senior security manager (SM). He explained that on the night of 18th October it was a standard night. He received a call from the Claimant who told him that something was going on in the toilets. He went to the toilets and saw the Claimant and another security officer (MC) outside of the gent’s cubicle. The Claimant said that he had been alerted to something suspicious in the cubicle. Then Sm looked over the cubicle and saw a man leaning over and talking on a phone.
They brought the man to the first aid room and asked the man to take his shoes and socks off. The man was not aggressive, he was co-operative. He said that he had no drugs and that he played sports. He also turned out his wallet. SM felt that there was zero evidence against the man either in the cubicle or on his person. He let the man back into the club with a warning. SM felt that he had dealt with it and the man had been co-operative
On doing that the Claimant said he wanted to speak with the man in a side alley with SM present. The Claimant was quite irate and roared and shouted at the man. The man told them in colourful language that he would never come back to the club and he left.
SM went back into the club and was in the front foyer. The Claimant came to him and asked him why had he not supported him. He told the Claimant that there was zero evidence against the man and he had not done anything. He asked the Claimant to fill out an incident sheet because he was not happy about the way that the Claimant had dealt with the situation. The Claimant said to him that if he (SM) could not support him then he could not be there and handed him his radio. He took it that the Claimant quit his job that he abandoned his post and quit.
It was put to the witness that the Claimant had a Personal Injury claim and that his shifts had been reduced and the witness replied that it was absolute lies, that anytime he had extra shifts he always gave the Claimant first refusal. When put to him that he did not like the Claimant he replied that it was also lies as he had done some carpentry work in the Claimant’s house.
The witness explained that there is a chain of command and that the Claimant could have gone to PW the general manager on the night. PW was normally nine out of ten times present on the nights.
The Tribunal heard evidence from SB who is a director of the Respondent. She did day to day office duties, including monthly management accounts, dealing with banks insurance companies and Revenue department.
She told the Tribunal that she received a text Monday 20th 2014 from the Claimant to apologise for the way that he had left. She did not get a chance to reply to the text until after 9.00 p.m. to say that she would be investigating the matter.
On her next day in work she met PW the general manager. she asked him if he was aware of the situation and he told her that he was. He told her that a letter was being sent to the Claimant that day (21st October 2014). PW told her that there had been a difference of opinion and the Claimant walked out and quit his job. She asked to see cctv footage. She viewed the footage and she saw the Claimant handing his radio to the Security manager (TmcG) and walking out. She did see the letter of TmcG to the Claimant. She was aware of the chain of command. She was aware that PW took action on a matter.
She was “completely flabbergasted that a senior security person who had been with them for years put everybody else in jeopardy”. Also they “ran a tight ship” and she was “horrified to see it completely exposed”. “It was clear he left.” The Claimant knew that if there was a serious incident on the night he could contact PW on the night. The Claimant did not contact her until the following Monday and it was by way of an apology for the way he left.
Determination:
The Tribunal finds that the evidence of the Claimant was candid and honest and that his motivation was altruistic and was to protect the safety of those on the premises. The Tribunal accept his evidence in full that he believed that he saw drugs and that the ejection of the patron was the best course of action. None of this is in dispute.
However, for the Respondent, a balance must be struck between safety on the one hand and on the other hand ensuring that customers are not ejected from the premises without proof of wrongdoing. The way that the Respondent dealt with this need to balance customer interests and safety interests is to search a person in a non-public room, which they did. Having conducted that search the senior security manager formed the opinion that the patron did not have drugs on his person and that he was co-operative. As a result the senior security manager decided, as was in his remit, to allow the patron to remain on the premises, albeit with a warning. This was in the remit of the senior security manager to so do and whilst the Claimant could disagree with his supervisor’s decision, he could not just walk off the job. This was not an action that was reasonable to take, as honourable as the Tribunal finds the Claimant to be.
By his actions, within 24 to 36 hours he texted the owner of the business by text and it was reasonable for the Respondent to believe that the Claimant resigned from his post. There was no onus on SB to investigate the matter further once she was satisfied having viewed the cctv footage of the Claimant giving back his radio to the senior security manager and then leaving. Having satisfied herself that the Claimant had left voluntarily there was no onus on her to investigate matters further.
The claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)