UD159/2015

EMPLOYMENT APPEALS TRIBUNAL

ICTS Ireland Limited t/a ICTS Ireland - Respondent

under

UNFAIR DISMISSALS ACTS 1977 TO 2007

I certify that the Tribunal (Division of Tribunal)

Chairman:      Ms P. Clancy

Members:       Mr T. Gill

                       Ms H. Henry

heard this claim at Ennis on 18th January 2016

                                         and 26th April 2016

                                         and 6th September 2016

Representation

Claimant :         Mr Conor Glendon, Conor J Glendon & Co Solicitors, Clonroad More, Ennis, Co Clare

Respondent :    Mr Tom Muirhead, Moorepay Compliance Ltd, Warwick House, Hollins Brook Way, Pilsworth, Bury, B19 8RR, England

Respondent's Case

The respondent company provides airport security services to airlines and airport authorities throughout Ireland and the United Kingdom. The claimant was employed as a security agent at Shannon Airport where the respondent has approximately 60/65 employees.

The operations manager of the respondent company opened a letter to the Tribunal dated I I August 2011 from the regional manager. The witness gave evidence that this letter issued to all employees including the claimant. The letter read in part

Recently we have had a situation whereby a staff member felt it was acceptable to go on board an aircraft which had just landed and take items from the galleys for their personal consumption. I am now writing to advise that under no circumstances does ICTS condone theft in any form within the company or from the airlines we are contacted to

The fact I have to communicate with you concerning such an issue is embarrassing to say the least not to mention the impact it has had on our integrity as a reputable security company within this airport. It is up to each staff member to report any such incidents to their immediate supervisor. In addition if it is found they know about it but didn't report it we will take action against this employee as being party to the theft.

Again I wish to reiterate, should any staff member steal front any of the airlines "'e are contracted to the disciplinary procedure will be invoked

The witness said he was on duty on 22 October 2014 and on that day spoke with a colleague at the boarding gate area in Shannon airport. The claimant entered the gate area and he saw an item fall from his upper body. The item was not in the claimant's hand and was not visible when the claimant entered the boarding gate area. The witness described the item as having been concealed. He gave evidence that his colleague also saw the item fall from the claimant's body. The claimant then picked up the item from the floor. The witness asked the claimant what item had fallen from his possession. The claimant confirmed in the presence of this colleague that it was a magazine which he had removed from a rubbish bag on the back steps of the aircraft. I-le stated that he had not received permission to remove the item.

The witness told the Tribunal that later that day he held an investigation meeting with the claimant in relation to the alleged theft of an item from an aircraft. Following the conclusion of that meeting he suspended the claimant pending further investigation. He wrote to the claimant on 22 October 2014 confirming this position. The matter was then referred to the station manager as part of the disciplinary process. The witness submitted his signed statement and minutes of the investigatory meeting to this manager and commented he had no further involvement in the matter apart from being interviewed as part of the claimant's appeal process.

The station manager who commenced employment with respondent in April 2014 gave evidence that she conducted the disciplinary hearing. She interviewed the claimant, the operations' manager and his colleague who was the claimant's supervisor as part of that process. She conducted a disciplinary hearing with the claimant on 28 October 2014. The claimant was provided with a copy of the minutes of the investigation meeting, a copy of the item removed, witness statements, and a copy of the company handbook prior to the hearing. He was informed of the purpose of the hearing and that the company viewed the issues as potential gross misconduct and, if proven could lead to his dismissal. He was also afforded union representation at the hearing. He provided a written statement at the end of the hearing and that statement together with the minutes of the hearing were opened to the Tribunal.

The witness acknowledged that the claimant apologised for what had happened and that he accepted he should not have taken the magazine. He told her that he had removed the magazine from a rubbish bag from the steps at the back of the aircraft. The witness told the Tribunal that the item did not belong to the claimant. The value of the item was irrelevant and it was completely inappropriate for the claimant to remove the item. He was employed as a security agent and had removed the item without permission. She gave further evidence that the claimant had returned to the airport following his suspension and approached the airline concerned to inform them of the incident and his suspension. She concluded that his actions constituted gross misconduct and she dismissed the claimant with immediate effect. She conveyed the decision to the claimant in a detailed letter dated 31 October 2014.

This was the first time she had to deal with such a disciplinary process and therefore she sought guidance on how to manage it. It was in this context that she contacted the Human Resources Manager who was based overseas on this issue. That guidance came in the form of assistance with the procedural part of the disciplinary process and with the structure of her letters to the claimant. According to the witness that manager had no involvement in the decision to dismiss the claimant. She was unable to explain why this human resource manager was appointed and chaired an appeal by the claimant against this sanction. The witness could not remember whether she had contact with that human resource manager regarding this case subsequent to the dismissal and prior to the appeal hearing.

Following an investigation which included interviews with several staff including the claimant and a disciplinary hearing, the station manager wrote a lengthy letter to the claimant dated 31 October 2014. That letter informed him of his immediate dismissal as his action of removing a discarded magazine from an aircraft was an act of gross misconduct. She labelled his action to the Tribunal as theft. Since the company had "a zero tolerance" towards theft he had to go.

In reaching that decision this manager stated she considered all the circumstances of this case including his work record. That record together with his special praise for his diligence was outweighed by his behaviour in inappropriately removing an item from the aircraft. She did not accept the claimant merely took it from a rubbish bag as he described but concluded he must have knowingly and deliberately pocketed it directly from the aircraft while it was being cleaned. However, she did not interview the relevant cleaners nor produce a departure log sheet for that particular aircraft for 22 October.

The claimant's supervisor told the Tribunal he observed a magazine falling from his upper body at a departure gate. This witness subsequently took notes of interviews in the investigation and also contributed to that investigation.

Claimant's Case

The claimant gave evidence of his role as a security agent which entailed observing the workings of the people entering the aircraft. This included caterers and cleaners who came on to the aircraft between flights.

On the morning of October 22nd 2014, the claimant took a magazine from a transparent rubbish bag that was left on the mobile stairway which was attached to the aircraft. While walking back through the front door of the gate area to commence his break, the magazine slipped from his hand. He picked up the magazine and was confronted by the operations manager, PD, who enquired where he had obtained the magazine and if he'd asked for permission to take it. The claimant said he hadn't sought permission. PD took the magazine.

Later the claimant was called to an investigatory meeting with his supervisor, NQ and PD which resulted in him being suspended. NQ took the claimant's security badge and escorted him out to the employee carpark. The claimant went straight into the public carpark. He went back in to the building through the public entrance and approached the ticket desk of one the respondent company's main clients. He said he wanted to tell them his version of events that had led to his suspension as he felt the respondent company would give a "tainted version".

The claimant gave evidence of sending a letter in November 2013, in which he questioned certain operational matters and criticised management. There was also an incident in July 2014 where the regional manager, GOB, had accused the claimant of slanderous remarks against his character and also of interfering with a company audit, both of which contributed to the clamant being suspended on full pay pending an investigation. The suspension was later lifted. These events led the claimant to believe that management were out to get him.

In cross examination the claimant accepted it was wrong on his part to take the magazine but felt that the company had overreacted. He had never once tried to deny the fact that he had taken the magazine. He stated that if it were a cleaner who had taken the magazine in the same manner, the claimant would have just had a word with them as opposed to reporting them to a supervisor. He reaffirmed his position that he was holding the magazine in his hand when it fell. He also said the reason he didn't ask for permission to take it was because he felt it was being treated as rubbish and was on the mobile stairway as opposed to on the aircraft. The magazine had no intrinsic value to the company which he believed was in contrast to the letter regarding items taken from the galley for personal consumption. He accepted that at the disciplinary hearing he was remorseful for his actions and that taking the magazine was a "momentary lapse of concentration". With regards to returning to the public area of the airport, the claimant insisted that he had not been instructed to stay away on this particular occasion and wanted to explain to the staff of the client company what had happened as he considered them friends.

Determination

The Tribunal noted the claimant's long service with the respondent. The respondent's evidence did not refute the claimant-s evidence that the magazine item alleged to have been stolen, had already been removed from the aircraft by cleaners and placed in a refuse sack outside the aircraft for disposal.

The respondent admitted in evidence that the person who heard the claimant's internal Appeal against his dismissal, was also involved in the preceding disciplinary stage, therefore, the Tribunal finds that the respondent did not fully apply fair and proper procedures in the manner in which the internal Appeal was conducted, and the procedure was therefore fundamentally flawed.

The Tribunal also finds that the sanction applied was disproportionate in the circumstances, in particular, having regard to the value and significance of the property item in dispute, and, the length of service and good employment record of the claimant in his employment with the respondent, and the respondent failed to convince the Tribunal that the ultimate sanction of dismissal was the only one appropriate in the circumstances.

The Tribunal also finds that the claimant, who admitted having removed the property item in dispute, and having approached the respondent's customer after suspension, contributed to his situation, and this is appropriately reflected in the Tribunal's findings and award.

The Tribunal finds the appropriate award to be compensation of €29,000 under the Unfair Dismissals Acts, 1977 to 2007.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)