ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010618
Parties:
| Complainant | Respondent |
Anonymised Parties | A General Operative | A Services Company |
Representatives | Paul Henry - SIPTU | Niamh Ni Cheallaigh IBEC |
Complaint(s):
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-00014008-001 | 19/09/2017 |
Date of Adjudication Hearing:12/04/2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complaint concerns an Operative engaged on Aircraft Valeting / Cleaning and his alleged Unfair Dismissal by his Employer, a Services Company. |
1: Summary of Complainant’s Case:
The Complainant was employed, without incident or blemish, for some seven years by the Respondent. On the 6th June 2017 while cleaning an Aircraft he found a passenger Mobile Phone. He put the phone in his pocket and inadvertently brought it home at the end of his shift. The following day he was approached at his home address by the representatives of the owner of the Phone, who had electronically tracked it to the address. The Complainant handed over the phone and apologised. As the Complainant was on Holidays in Poland it was not until the 11th July that he was placed on paid suspension to allow for an investigation leading to a Disciplinary Hearing on the 3rd August. Following this hearing he was dismissed on the 9th August and the Dismissal was upheld on Appeal on the 24th August. The Complaint maintained that the procedures adopted throughout the process had been completely unfair. He was denied natural Justice and the dismissal deductions was completely unwarranted and grossly disproportionate. The lengthy Suspension was punitive and equally disproportionate. Legal Arguments and precedents were advance in regard to the Proportionality and Reasonableness issues cited. |
2: Summary of Respondent’s Case:
The Complainant was an Aircraft Cleaner and, allowing for TUPE has service since 2010. An incident took place on the 6th June 2017 whereby a mobile phone, which the claimant had found on an Aircraft, was removed from the Airport without Authorisation. The Complainant was suspended on full pay from 10th July 2017 and series of Investigative and Disciplinary meetings took place culminating in the Appeal Hearing of the 24th August. The Complainant was at all times afforded all the rules of Natural Justice and SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures. Full Representation from SIPTU was afforded throughout the process. Legal Precedents in support of the Respondent Arguments were advanced by their Representative. |
3: Findings and Conclusions:
3:1 The Law Unfair Dismissals Act,1977, SI 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures and numerous legal precedents cited by both Parties. As none of the basic facts in this case are in dispute and proper employment procedures were followed the key issue is then one of Proportionality. The side issue of the quite lengthy paid suspension was considered but I came to the view that in the light of the misconduct allegations being made a suspicion was probably the only safe option for the Employer. The key legal arguments are essentially on the question ; is the Dismissal a decision that a “Reasonable Employer” would have no difficulty supporting – does it fall into the “Band of Reasonableness” - is a dismissal a proportionate response when possibly other sanctions such as Final Written Warnings or Unpaid Suspensions could have been imposed.? The EAT case of Looney & Co. Ltd v Looney, UD 843/1984 is often cited in this context. However, it is always necessary to consider the evidential context of the decision in each case. 3:2 The Evidence The Complainant was employed as an Aircraft cleaner at Dublin Airport. He had considerable experience in his role and was completely familiar with all procedures involved in his position especially the safe handing in to his Superiors of lost Passenger property. It was acknowledged at the Oral Hearing that from time to time Mobile phones are found on Aircraft and are handed, in keeping with procedures, to the Supervisor during or after the shift. They are never taken home. In this case a very expensive upmarket Mobile Phone (value circa €600) had been found. The Complainant brought it home with him. An example of a similar style of Phone was displayed to the Hearing. It was not so small as to miss it in your pocket. It is acknowledged that the role of the EAT or latterly an Adjudicator is not to reinvestigate a Disciplinary case or suggest alternative outcomes once the Adjudicator is happy that the rules of Natural Justice have been followed. The primacy of Natural Justice is highlighted by Mr. Justice Flood in the Frizzel v New Ross Credit Union [1997] IEHC137 case referred to by the Complainants Representative. In this case, while I might have certain reservations regarding the handling of the Statements from the Phone owner and his representatives visit to the Complainant’s house, I was satisfied that Natural Justice had been followed in regard to these statements. The Complainant was afforded an opportunity to comment on them. The Complainant was employed “Airside” at the Airport and had access to Aircraft. A particularly high standard of honesty and integrity is required in these types of positions. The Respondent maintained that the bond of trust had been broken. The Respondent felt that the Complainant’s story had a number of inconsistencies between the Disciplinary Hearing and the Appeal Hearing. A key issue was the complete departure from well-established and well know procedures by the Complainant. The Respondent Mangers gave oral evidence and were questioned by the Adjudicator on the issue of Alternative Sanctions. Their strongly held position was that once a query or sustained question has been placed over the honesty of an employee in this type of Aircraft situation dismissal is effectively the only option. The question is one of whether or not an Employer in a related industry would have come to a similar decision - does if fall into the “Band of Reasonableness”. Having carefully considered all the evidence, both oral and written, in this case I had to come to the view that the Dismissal, while harsh for the Complaint, fell with the Band of Reasonableness. Trust and honesty is an absolute prerequisite in this type of Aircraft access/cleaning situation -the actions of the Complainant had seriously undermined this principle and a Reasonable Employer would have supported the Dismissal decision. Accordingly, I find against the claim of Unfair Dismissal. |
4: 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.
Act | Complaint/Dispute Reference No. | Summary Decision /Refer to Section 3 above for detailed reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00014008-001 | Claim is dismissed – the Dismissal decision falls within the “Band of Reasonableness” for an Employer. |
Dated: 1st August, 2018
Workplace Relations Commission Adjudication Officer: Michael McEntee
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