Complainant

Respondent

Anonymised Parties

A Security Officer

A Public House

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-00013906-001

13/09/2017

The case concerns the alleged Unfair Dismissal by a Public House of a Security Officer.

The Complainant was employed by the Respondent from October 2012. Following an alleged incident with a Customer on the 9th March 2017 the Complainant was issued with a Final Written Warning on the 31st March 2017. The Complainant refused to sign this Written Warning as he believed that to do so would mean he was waiving his right to appeal the Warning.

A number of meetings took place between the parties. The issue of his refusal to sign the Written Warning and the Respondent position that it would be considered Gross Misconduct that could result is his Dismissal was discussed.

The Complainant continued to refuse to sign the Written Warning and following a Disciplinary meeting on the 20th May 2017 he was dismissed by letter of the 25th May 2017. An Appeal Hearing was heard on the 4th July 2017 and the Dismissal was confirmed on the 11th July 2017.

The Complainant strongly contended that he was innocent of all the most serious charges relating to the March incident and his refusal to sign the Warning was based on his belief that to do so would waive his rights to appeal.

At the Appeal Hearing, where he was represented by MANDATE, he based his appeal on the above grounds and that secondly, he was suffering from Stress and Anxiety to such a degree that it had impaired his ability to participate fully in the Disciplinary processes.

He had apologised for the March incidents and he requested that he be referred for an Occupational Health examination.

The Dismissal decision was overtly excessive and was completely out of all proportion to the incidents on which it was based.

The employment details are as stated in the Complainant’s case above. The Respondent is a large operator of Public Houses. The absolute propriety and professional of all Security Staff is an absolute requirement especially as quite often situations can arise that are influenced by alcohol.

All staff including the Complainant were trained in a new Code of Practice covering these issues in July 2015.

An incident took place on the 9th March 2017 where an assault on a customer took place. The matter was investigated, CCTV footage was viewed and a Final Written Warning was issued to the Complainant. In keeping with Company practice he was requested to sign the warning and in effect commit to some suggested improvements during the 12 months the Warning would stand on his file.

Numerous discussions and written communications followed and the Complainant was requested to fully explain his position over refusing to sign the Warning or to initiate an Appeal.

On the early morning of the 20th May 2017 the Complainant staged a Security “Prank” which had the potential to become a quite serious incident. Later that day at 8:30 pm the Discipline hearing regarding the Warning was held. It had been scheduled earlier in the week. Letter of the 16th May 2017. The seriousness of the situation was clearly explained to the Complainant in advance and he was offered the opportunity for Representation. He declined to have Representation at this stage.

The Company felt that they were left with no option but to Dismiss the Complainant as his refusal to accept that he might be at fault for his behaviour for the March incidents and follow reasonable instruction regarding the Disciplinary Process was very worrying for the Company. The standards expected of a Security Officer are high and this behaviours were certainly not in keeping with them.

The Appeal Hearing took place on the 4th July 2017. representation was provided by MANDATE at the Appeal Hearing.

The Complainant did not avail of an offer to call witnesses on his behalf or provide a written statement.

At the Appeal Stage the appeal Chairperson, a Company Director, did not uphold his appeal and stated that “I no longer trust Mr. X and believe he would be liability to the Compony if he was reappointed to his former position”.

The Appeal was not upheld and the Dismissal decision was confirmed.

3:1       The Law and in this case “Reasonableness” of an Employer action.

The Dismissal is covered by Section 6 of the Unfair Dismissal Act,1977.

Unfair dismissal.

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(Continuation to Section 4)

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

( b) the conduct of the employee,

( c) the redundancy of the employee, and

( d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The application of the Act has to be seen in the context of SI 146 of 2000 – the statutory Code of Practice on Grievance and Disciplinary Procedures and above all on the clear applications of the principles of Natural Justice.

In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

Furthermore, it is well accepted law that the role of the EAT or in this case the Adjudication Officer is not to re-run the Disciplinary process to suggest a different outcome. Once the process can be seen to be fair and in keeping with Natural Justice the oversight role of the Adjudicator regarding the factual decision ceases.

The question of the Actual Decision as referred to by Mr. Justice Flood should be a “Proportionate” decision.

In this context the question of Proportionality is one of “Reasonableness” -in what would a “reasonable” employer do in this situation - does the decision fall with the “Band of Reasonableness”? The legal and procedural issue is considered at length in Chapter 17 of Redmond Dismissal Law in Ireland -2nd Edition 2007 Tottel press

3:2     Consideration of the Evidence in this case.

Procedurally the issues were well processed and I could not see any issues of procedural remiss or basic failures of Natural Justice in the case. It might have been better if the Final Appeal Chairperson had been external to the Respondent Organisation but they appeared to be reasonably independent in their function.

The key issue then is the question of the proportionality of the Dismissal decision.

The Complainant argued that Dismissal from employment for the Non- Signing of a Final Written Warning was excessive and disproportionate – the Complainant was being punished for what was essentially a paperwork issue.

The Respondent in their oral and written submissions argued that the incident had to be seen in the wider context of the relationship of a Security Officer to his employer in the wider context of a busy late-night City Centre public House.

The need for an Employer to have absolute confidence in his Security and Door staff was emphasised. Considerable Public Liability issues were at stake.

The evidence pointed to a considerable involvement on the issue by the Employer with the Officer in question during the period April to May. The Non- Signing issue was frequently discussed. There can be no doubt that the Officer in question knew that his relationship with his employer was coming under considerable strain – the non-signing of the form had become a touchstone for wider concerns from the employer. The warning had been issued on the 30th March 2017 and the Disciplinary hearing (for non-signing) took place on the 20th May 2017. A Verbal Warning for Late Attendance had been issued in the interim (22ndApril) and it was similarly not accepted or Appealed.

The Respondent in their letter of Dismissal stated that the issue of the non-signing and non-engagement with the process was a “Reasonable Instruction” the non- following of which was Gross Misconduct.

The argument being that a Security officer is in a responsible position and no employer could have confidence in an Officer who refuses to engage in normal processes.

If this situation was serious the behaviour of the Complainant on the early morning (02:00 to 03:00 hours approx.) of the 20th May 2017 certainly added to the concerns of the Employer. The Complaint, knowing that a Disciplinary hearing, was due later that day, engaged in a dangerous and juvenile Security Prank. This behaviour was not denied and stills from CCTV footage was in the evidence pack. To a reasonable observer, and noting that it was not the subject of a separate investigation, this was unusual behaviour for a Security Officer (that would have required a serious explanation) on the day of a Disciplinary Hearing.

Strictly and Procedurally this Prank was not on the Agenda for the Disciplinary meeting later that day and was not discussed. It would stretch credibility to accept that the incident had not a negative confirmatory impact on the Respondent’s view of the Complainant. However, I came to the view that the Prank incidents were not in themselves the main reason for the dismissal but rather served to confirm a view formed from the evidence, regarding the March incident and the written warning presented, at the Disciplinary Hearing itself.

Taking the “Doctrine of Reasonableness and Similar Employers” I had to come to the view that the Dismissal decision was one that similar employers of Security staff would find reasonable. Non- engagement in Procedures despite numerous efforts to persuade him to do so is not the expected behaviour of a Security officer - leaving aside the unusual prank on the morning of the Hearing.

The Appeal hearing focused largely on the same grounds as the Disciplinary Hearing save that consideration was given to the question of a Referral to Occupational Health. The Complainant had never during the course of his Employment complained of any ill health and the late arrival of the Health issue might be seen as somewhat opportunistic at the Appeal stage. However, in the Complainant’ favour is the fact that the Appeal hearing was the first time he was professionally represented and the Health issue might have been highlighted at an earlier stage if the Complainant had availed of Representation. The Respondent did not afford the opportunity to the Complainant of an Occupational Health examination.

Accepting all Legal precedents in these types of cases it would have been better if the Respondent had commissioned an Occupational Health report prior to the decision to dismiss. However, in the context of the overall case I did not consider it a fatal blow to the Respondent position.

The question of Trust between the Complainant and the Respondent was crucial to the Appeal Hearing, Security officers who do not engage in normal procedures be it signing Final written warnings or lodging Appeals via procedures are in the words of the Appeal Decision a “liability to the Company”. The key issue was that the Respondent HR manager and the Complainant’s own manager had spent a considerable amount of time trying to persuade the Complainant to engage in the procedures. The HR Manager gave good oral evidence to the hearing

It is a position that most reasonable employers in a comparable situation would adopt - it falls into the “Band Of reasonableness.”

3:3     Final Conclusions.

Having considered the extensive Oral and written evidence and carefully reflected on the “Band of Reasonableness” question I came to the conclusion that the dismissal was not Unfair.

The claim fails.

Act

Complaint/Dispute Reference No.

Summary decision

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

CA-00013906-001

Claim dismissed on the basis that the dismissal decision , having considered all the evidence, fell within the “Band of reasonableness” and was not Unfair.