EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD363/2015
APPEAL(S) OF:
Peter Boland
(appellant)
against the recommendation of the Rights Commissioner in the case of:
Trinity College Dublin
(respondent)
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms P. McGrath B.L.
Members: Mr D. Moore
Mr S. Mackell
heard this appeal at Dublin on 21st September 2016 and 23rd November 2016
Representation:
_______________
Appellant(s) : Tiernan Lowey B.L. instructed by Cullen Tyrrell & O'Beirne, Solicitors,
No 3, Prince Of Wales Terrace, Bray, Co. Wicklow
Respondent(s) : Ms. Roisin Bradley, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:
The Tribunal has carefully considered the evidence adduced in the course of the two days of oral evidence on the 21st September 2016 and 23rd November 2016.
The matter comes before the Tribunal on appeal from the recommendation of the Rights Commissioner made on 23rd January 2015 (ref: r-148579-ud-14/RG.)
This is a de novo hearing and both parties were given an opportunity to present their evidence and test the evidence presented.
The claimant was engaged in the respondent’s sports centre for upwards of 16 years. There can be no doubt that the claimant was well qualified in sports and fitness and his career path had taken him to the level of Duty Manager.
The witnesses for the respondent variously described the significance and importance of the role of the Duty Manager. The investigator, for example, described the Duty Manager as having “ownership of the building” when he/she was on duty. There can be no doubt that a Duty Manager on duty has an extremely onerous duty to the users and the co-workers in the facility at the time he/she is on duty. All incidents, emergencies and inquiries are run through the Duty Manager. It is an essential requirement for the job that the Duty Manager is alert, capable, present and reactive when he is on duty. The Tribunal fully acknowledges this to be the case and it is against this duty of care that the Tribunal considers the facts.
The claimant was on duty on the 20th June 2013. The head of Sports and Recreation (MT) was contacted in connection with the claimant’s presentation at his shift on that day. In consequence of this MT returns to the workplace and the Tribunal accepts that the claimant could not be readily found on the premises and in fact it is later confirmed that he was up in an undisclosed therapy room applying something called facilitative stretching on a student. The exact details of his whereabouts were not known to the staff at reception. The Tribunal fully accepts that the claimant’s absence was not something which would on the face of it be acceptable in a Duty Manager on duty upon whose shoulders a weight of expectation rests.
In addition to this event, there was a concern that the claimant had taken alcohol before or during his shift. The claimant did not concede he was inebriated such that he would be unable to perform his functions but it was the smell of alcohol about his person that had initially focused attention on him in the course of this shift on 20th June 2013. It is noted that the claimant did acknowledge that he had had at least one drink before turning in for his shift. Whilst the Tribunal would have to acknowledge that this would not necessarily impact the claimant’s ability to perform his duties, the Tribunal must nevertheless query the wisdom of presenting for work with any alcohol on board where the duty and expectation is such that the ownership, care and control of this facility and all the users are in the hands of this Duty Manager.
The Tribunal heard all the evidence concerning the investigation and disciplinary process and indeed the appeals process which followed the incident.
It is noted that a delay in investigation and disciplinary was brought about by reason of the claimant’s illness and this was not a fault attributable to either side. Thus the investigation process only commenced in February 2014.
The Tribunal does not doubt the appropriateness of a process being initiated. However, the Tribunal has been asked to consider the fairness of the process which was in fact adopted as against the one which is clearly set out in the college’s own policies and as against procedures which the Tribunal and a number of instances of procedural unfairness have been brought to the Tribunals attention.
For example MT prepares a report into the 20th June incident, which on the face of it had many of the attributes of an investigation. MT in fact did not conduct the investigation which would be concluded by EL but MT advises the claimant that arising out of his “serious misconduct” a suspension and investigation had been triggered. MT clearly had a view and it was therefore most inappropriate that she re-appeared at the disciplinary stage.
The Tribunal agrees that the selective use of CCTV footage was unfair and the failure to allow the claimant examine this footage was highly prejudicial to his case as he was denied the opportunity to put into evidence any “exculpatory” images as his Counsel put it.
The presentation of one sided evidence was unfair and the fairest thing would have been to abandon any reliance on the CCTV footage as the reliance placed led to a wrong.
The investigation found the consorting about to be gross negligence.
The investigation found a pattern of unavailability during the shift and the investigation found a likelihood that inappropriate behaviour did occur though on the day he asserted that there was no evidence either way to confirm inappropriate behaviour occurred.
The investigator seriously overstepped his remit by making a finding of serious misconduct and gross negligence as his report should only have brought the employer to the point of determining whether a disciplinary process should be triggered. Of course the investigator himself had not been selected from outside the department (for the purpose of demonstrating no pre-judgement) and was in fact a person who had witnessed the claimant’s demeanour on the 20th June and therefore was not himself be seen to have formed a judgment.
As previously noted, the disciplinary was conducted by MT – the person who had initially assessed the situation on 20th June 2013 and indeed sent the claimant home on that date.
The decision to terminate the claimant’s employment which may of course have been justified objectively on an analysis and the facts was reached therefore at the end of a somewhat tainted process. The opportunity to in any way rectify this state of affairs could have been brought about at the appeals stages which was conducted by NMcC. This did not happen and in fact the claimant was issued with a P45 before the appeal was heard contrary to the respondent’s own policy.
On balance, the Tribunal accepts that there has been an unfair dismissal. The Tribunal does however limit its findings of unfairness to the procedural steps and decisions made by the respondent. There can be no doubt that the claimant in this matter significantly contributed to this coutcome by his having acted in the manner he did and having so little regard for the responsibility he had as a Duty Manager and a member of staff.
In the circumstances, the findings of the Rights Commissioner is overturned and an award of €8,500 is made.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)