AJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00002666 

Complaint

Date of Adjudication Hearing: 18/07/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with 8 of the Unfair Dismissals Acts, 1977 – 2015 and following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background

The Complainant was employed from 22^nd April 2008 until his employment was terminated without notice on 5^th October 2015. The Complainant was paid €10.75 an hour and he worked 42 hours a week. The Complainant had transferred under the TUPE Regulations in 2009 to the Respondent Company. The Complainant referred a complaint to the Workplace Relations Commission on 1^st April 2016 alleging he had been unfairly dismissed. The fact of the dismissal was not in dispute.

Summary of Respondent’s Position.

The Respondent stated that the Complainant was discovered asleep on duty and not wearing his uniform. The Complainant was invited to attend an investigation meeting on 3^rd July 2015. He was advised in this letter dated 1^st July 2015 of his right to be represented and to advise of any witnesses he may wish to attend. He was also informed that he was on paid suspension pending the outcome. The Complainant advised the Respondent on 2^nd July 2015 that his Representative would not be available until 7^th July 2015 and the meeting was rescheduled to this date. On 6^th July 2015 he informed the Respondent of two witnesses who would be attending.

The Complainant attended the meeting of 7^th July 2015 and he viewed CCTV during the meeting. The Complainant also requested a copy of the written warning issued to him on 30^th October 2014 which was done.

The Complainant was invited to attend a Disciplinary Meeting on 22^nd July 2015 by letter dated 17^th July 2015 and he was provided with the CCTV footage as he had requested. At the request of the Complainant the hearing was rescheduled to 27^th July 2015 and the Complainant was informed of his right to be accompanied and to have any witnesses attend with him. The Hearing took place on 28^th July 2015 at which the Complainant did not raise any issues in relation to viewing the CCTV footage. The outcome was to terminate the employment and the Complainant was notified by letter dated 30^th July 2015 with a right of appeal.

The Complainant appealed the decision on 7^th August 2015 on the grounds that he was unable to view the CCTV footage. The Complainant through the Citizens Information Centre requested a copy of the CCTV footage onto a disc and this was done on 19^th August 2015. By letter dated 1^st September 2015 the Respondent sought the grounds of appeal by 8^th September 2015 and on 3^rd September the CIC requested a copy of the “photo” taken of the Complainant. The Respondent replied on 8^th September 2015 confirming that the photograph did not form any part of the disciplinary process. The CIC on behalf of the Complainant wrote to the Respondent on 29^th September 2015 confirming the Complainant did not now wish to appeal the decision to dismiss as he believed he would not receive a fair hearing. The Respondent replied on 12^th October 2015 with his P45 and final pay and confirming they had been informed by the CIC that he did not want to appeal the decision.

The Respondent stated that the Complainant had been issued with a verbal warning on 20^th May 2014 and a written warning on 30^th October 2014 with a right of appeal. He did not appeal this. This was to remain active for a period of 12 months.

Summary of Complainant’s Position.

The Complainant was employed as a Security Guard with the Respondent. Some two months prior to the commencement of the Disciplinary process the Complainant received a letter dated 22^nd April 2015 from the Respondent indicating there were issues between the parties. In relation to the Disciplinary Process the Respondent asserted that the Complainant was asleep while on duty and that he was not wearing his uniform. The Complainant was invited to attend an investigation meeting on 7^th July 2015 in relation to sleeping on duty on two occasions in a specified location. He was informed that a patrol driver had observed him sleeping and the notes of this meeting assert that the Complainant was shown the cctv footage. The Complainant alleged that he was shown snippets of this cctv footage. The notes of this meeting also reference a photograph taken which was purportedly shown to the Complainant. The Complainant stated that he was not informed in advance of any issue in relation to his uniform but the Complainant seeks to deal with the issue at the meeting. Also during the course of this meeting the Respondent asserted that the bond of trust between the parties had been seriously affected and that the Complainant was not doing his job. The Complainant is accused of deplorable conduct.

The Complainant was advised by letter dated 17^th July 2015 asserting that his explanations were not accepted by the Respondent and inviting him to attend a Disciplinary meeting on 22^nd July 2015. This was to be chaired by a named Consultant to the Respondent Company. However the Complainant stated that on 21^st July 2015 the Consultant wrote to a named Employee of the HR Department which states as follows – “ it is very clear that (the Complainant) is sleeping on the job”. The Consultant also raises other issues which the Complainant asserted indicates that a decision was already made. The notes of this Disciplinary Hearing assert that there is no photo in existence of the Complainant taken by the patrolman although this was asserted at the Investigation Meeting. The Complainant by email dated 25^th July 2015 to the HR Department queries the impartiality of the Consultant arising from her letter dated 21^st July 2015. The Consultant responds to his email on 27^th July 2015 wherein she accepts that she has reached a predetermined position and it was now a matter for the Complainant “to provide justification as to why he is sleeping”. The Complainant requested the Consultant to recuse herself at the Disciplinary Hearing on 28^th July 2015 but she did not do so. The Complainant also disputed that he had been shown the cctv footage prior to the Disciplinary Hearing. The Complainant requested this cctv footage on 7^th August 2015 and the Citizens Information Centre also wrote to the Respondent Company on 8^th September 2015. The Complainant confirmed that the cctv footage was forwarded to him on 19^th August 2015 after the conclusion of the Disciplinary Process.

The Complainant had lodged a complaint with the Data Protection Commissioner following which the Respondent offered him an apology. The Complainant asserted that accordingly this cctv footage contributed to an unfair and unlawful dismissal by the Respondent.

The Complainant asserted that he was not afforded a right of representation of his union representative at either the investigation or disciplinary hearings. Respondent communicated the outcome of the Disciplinary meeting to the Complainant on 31^st July 2015 informing him that the outcome was dismissal and he was afforded a right of appeal.

The Complainant asserted at the Hearing in response to questions from the Adjudication Officer that he had niot got further employment since his dismissal and that he was in receipt of Jobseekers Benefit from the Department of Social Protection. He was requested to provide confirmation of this from the Department but did not do so post the Hearing. Neither did the Complainant provide any evidence to the Hearing of mitigation of loss although he was afforded an opportunity to do so.

FINDINGS AND CONCLUSIONS.

On the basis of written submissions from both Parties and having reviewed the considerable items of correspondence between the Parties I find as follows –

The Complainant and his Legal Representative reference a letter from the Respondent to the Complainant dated 22^nd April 2015 which was issued in response to two emailed letters from the Complainant to the Respondent dated 26^th March 2015 and 18^th April 2015. I do not accept that this letter can form any part of this complaint in relation to a complaint of unfair dismissal as the Complainant did not provide me with the two emailed letters from the Complainant to which the letter dated 22^nd April 2015 was a response from the Respondent.

Both Parties confirmed at the Hearing that the Complainant had been invited to attend an investigation meeting on 7^th July 2015. I note that in the letter of 1^st July 2015 the Complainant was advised of his right to bring a witness and to be accompanied by a colleague or staff representative. The Complainant confirmed at the Hearing that he was a member of the SIPTU trade union and he also confirmed that he did not request his trade union to accompany him. I further note that the Complainant did bring two witnesses and the notes of this meeting show they both attended with the Complainant.

I note from the Notes of the Investigation Meeting that all the Parties, including the Complainant signed the notes of this meeting. I further note that on the first page of these notes that the Complainant was shown the cctv footage in relation to him allegedly sleeping at specified times on two specified dates in June 2015. It also confirms that this cctv footage was viewed by both the Complainant and his witnesses on a named Managers phone who indicated that the full footage was being obtained from the IT people and acknowledged that what the Complainant was shown was snippets. I further note that this record shows that the Complainant requested a break following which he stated “the position of the camera does not prove I was sleeping”. The notes also show the Complainant stating “The chair does not help”. The outcome of the investigation meeting was communicated to the Complainant on 17^th July 2015. This letter identifies that footage was shown to him which “showed you sleeping during the course of your duty” while acknowledging the Complainant had refuted that this footage proved he was sleeping. This evidence shows that the Complainant was shown “snippets” of cctv footage at the investigation meeting of 7^th Jul 2015. It is clear from an email dated 21^st July 2015 from the Complainant to a named employee of the HR Department that he had been provided with an USB with the cctv footage as he requests the Respondent to send him the footage in a format he can watch and stating he wished to view the cctv footage prior to the disciplinary hearing. I note that the Respondent responds providing instructions on how to correctly open the USB. And in a letter dated 1^st September 2015 stating that the Complainant had signed for receipt of this cctv footage on 22^nd August 2015. There was no further request from the Complainant until 29^th September 2015 from the Citizens Information Centre, representing the Complainant who confirmed that they were able to look at the cctv footage.

I note that the outcome of the investigation meeting in the letter of 17^th July 2015 does refer to the fact that the Complainant was not dressed in the required uniform. I further note that the Complainant had not been advised in advance that this issue would be addressed during the investigation meeting. I find this is in breach of S.I. 146/2000 and fair procedures.

The Complainant was invited to attend a Disciplinary Hearing on 22^nd July 2015. Again in the letter of invite dated 17^th July 2015 the Complainant was advised to bring a witness and of his right to be accompanied by a work colleague or a Staff Representative and I note that the Complainant was accompanied by a witness but he did not bring either a work colleague or a staff representative of SIPTU Trade Union.

I note that a named Consultant was appointed to conduct the Disciplinary Hearing on 22^nd July 2015. However by email dated 21^st July 2015 this Consultant sent an email to a named employee in the HR Department which states as follows – I received the cctv footage today and it is very clear that ….is sleeping on the job. Could you let me know what hours he was working for you: 1. That week 2. That shift 3. On average this month. Also did he get his rest breaks. I ask this now as these are all issues he may bring up on the day and if he takes a case these are the satellite issues a solicitor will bring up to induce a settlement”. This exchange was between an employee of the HR Department who was involved in the Investigation meeting of 7^th July 2015 and the Consultant appointed to hear the Disciplinary Meeting. I find this is in breach of all fair procedures and natural justice in relation to due process an employee is entitled to especially in the context of a possible dismissal.

I note that the Complainant sent an email dated 25^th July 2015 to a named employee of the HR Department, who was also the employee who was involved in the Investigation meeting, requesting that the named Consultant recuse herself from the Disciplinary hearing due to her email dated 21^st July 2015 quoted above. The Consultant did not excuse herself and proceeded with the Disciplinary Hearing on 27^th July 2015. I note that at the Disciplinary Hearing that the Complainant did raise as a preliminary issue his request made to the HR Department that the Consultant should recuse herself from the Disciplinary process. The notes of this meeting do not record any response from the Consultant. I find that the Disciplinary Process is tainted by unfair procedures and natural justice and in breach of all fair procedures as set out in S.I. 146/2000. The Consultant would have been better advised to recuse herself from this process.

I note from the letter dated 31^st July 2015 from the Consultant to the Complainant in relation to the outcome of the Disciplinary Hearing the Consultant confirms that that having viewed the cctv footage in advance of the Hearing that it was her opinion that the Complainant appeared to be sleeping

I note that the Complainant was afforded a right of appeal and he did initially appeal the decision to dismiss but by letter dated 29^th September 2015 from the Citizens Information Centre representing the Complainant it states “In relation to the appeal….does not wish to appeal the decision as he believes he will not get a fair hearing”. I find that the Complainant did not exhaust the internal disciplinary procedures of the Company prior to lodging his complaint with the Workplace Relations Commission.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

In view of my findings above and in accordance with Section 8 (1)(c) of the Act, I declare the complaint of unfair dismissal is well founded. The Respondent Company did not comply with fair procedures and natural justice in relation to both the Investigation Meeting but more importantly in relation to the Disciplinary Process. S.I. 146/2000 sets down the Procedures to be adopted by an Employer in relation to any Grievance or Disciplinary Process. Section 6(7)(b) of the Act refers to the compliance or failure to comply by the Employer with the provisions of any Code of Practice approved by the Minister as set out at Section 7 (2)(d) of the Act. The Minister approved S.I. 146/2000 on 20^th May 2000.

In determining compensation to be awarded to the Complainant I am taking account the failure of the Complainant either at the Hearing or post the Hearing to provide the Adjudication Officer with confirmation he was in receipt of Jobseekers Benefit from the Department of Social Protection from the date of his dismissal. The Complainant also failed to show how he had mitigated his loss as required by Section 7(2)(c) of the Act. Accordingly I direct the Respondent to pay the Complainant compensation of €10,000.00 within 42 days of the date of this Decision

Dated:   15^th September 2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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