Complainant

Respondent

Anonymised Parties

A security officer

Property Support Services Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00016503-001

22/12/2017

The Complainant commenced employment as a Security Officer with the Respondent on 2nd February 2017, he worked 35 – 40 hours per week and was based on a large client site where he was responsible for monitoring security cameras and conducting patrols in the shopping mall.

On 16th November 2017 the Complainant was dismissed from employment for the following reason:

“It is alleged that whilst on duty at (location inserted) week beginning 16/10/17, you failed to devote your whole time, attention and abilities to your duties and responsibilities during your normal working hours”.

The Complainant through his union representative exhausted the internal appeals procedure. The matter was referred to the Workplace Relations Commission on 22/12/2017 under section 13 of the Industrial Relations Act, 1969.

1.       The Complainant was employed from February 2017 to 16th November 2017. The training received was provided by a member of security staff at the Client site. The Complainant was suspended on 25th October 2017.

2.       The Complainant attended an investigation meeting on 1st November 2017, due to short notice he was unaccompanied. The Complainant agreed to proceed with the meeting. The evidence provided were stills of him with his feet up on a chair while seated monitoring two screens of the client carpark and client premises. The meeting revealed the client was viewing footage of a flood and decided to view the internal office footage also and came across the footage of the officer sitting with his feet up on a chair. The Complainant admitted it was him and yes, he did have his feet up. He also admitted to taking his break within two hours of starting duty. The investigating officer said the break was not the issue it was his relaxed state and the fact that the sensor light stayed off for a long period of time that lead her to believe he must be sleeping. The Complainant never received the outcome of the investigation or its findings. On the 3rd of November he received a letter inviting him to a disciplinary meeting.

3.       The Complainant showed up on 10/11/2017 as instructed. This meeting was cancelled and he was handed a letter which confirmed his disciplinary hearing would take place on 13/11/2017. During the Disciplinary hearing heard by a senior operations manager the focus remained on the activities of 20/10/2017. He asked questions, such as, you never left the room? You are sitting for a long time without activating the sensor light? You were very comfortable was this a professional way to behave? The Complainant answered these questions by stating this was how he had sat monitoring the screens. Yes, he was sitting still and didn’t move around the room and he no action on the monitors, so no need to leave the room. The Complainant also protested that that no one had advised him that he was under surveillance by the client while on duty. Which is a breach of his rights. The Complainant’s representative asked how the Respondent had obtained the footage and was told that the Client had provided the footage to the Respondent. The Complainant’s representative also stated that the Complainant was never asked for permission to allow this and the footage should never be used in a disciplinary. The Respondent from the outset was adamant that he had lay down between 22.00 pm and 05.00 am. This was an incorrect assumption, as the claimant did the shutdown of the centre at 23.00 hours. The Claimant’s Representative asked who else was interviewed in this case. The Claimant’s Representative asked if the morning officer was questioned. The reply was no, just the Claimant.

4.       The Claimant was dismissed, this was his first time in trouble. The dismissal demonstrates no opportunity or willingness to allow the claimant to learn from this experience. If he had received a more appropriate sanction, he would have learnt not to use another chair to rest his feet. No other person was interviewed in relation to the claims made, that it was normal for one officer working alone to stay in the office and monitor the cameras.   The officer who relieved the Claimant on 21.10.2017 was never interviewed. Incidentally, he was one of the officers who had trained the Claimant in. The Claimant was never given a copy of the CCTV policy and does not believe one exists.   There is no mention of the use of CCTV in the disciplinary policy.

5.       The appeal, the Claimant made his appeal to the Head of HR and Payroll on 15.12.17. The outcome letter dated 20.12.17, informed the Claimant, his appeal had failed and he had exhausted the internal process. If we look at the notes taken during the first meeting, the Company had viewed the footage prior to the Claimant giving his verbal consent.   The line of questioning supports this.   The Claimant was not treated fairly during the whole process. The charges against him were never put in writing to him. The Employer knew it was the shift of the 20.10.17. That he had taken a break, two hours into his shift.   That he had bought an item between 22.00 and 23.00 hours. None of this was in the invitation letter for investigation.

In conclusion

1.       The Union would contend that dismissal was unfair and disproportionate when the circumstances are reviewed.

2.       The investigation was not a full investigation as no-one else was interviewed. Natural justice was not served in this case.

3.       The claimant was willing to learn from any wrong doing, as his student status required the financial support the job had given him.

4.       The employer has breached his rights on data protection and the processing of his personal data.

5.       The Claimant’s inexperience was used against him.

6.       The Claimant was unaware of the allegations against him, until he went to the investigation meeting alone.

7.       The Claimant was never given a copy of the Company CCTV policy and was unaware he was under surveillance.

1.       On 20 October 2017 an incident occurred on the site where the Complainant was based which led to the client finding evidence that the Complainant was asleep whilst on duty. The Respondent decided to launch an investigation into the incident. Specifically, the allegation against him was as follows:

“That whilst on duty on a client site, he failed to devote his whole time, attention and abilities to his duties and responsibilities during normal working hours”

2.       On 25 October 2017 the Complainant was advised that he was being placed on paid suspension pending the completion of an investigation into the matter.

3.       The Complainant was invited to an investigation meeting by letter dated 27 October 2017. The Complainant was afforded the right to representation and given a copy of the disciplinary policy.

4.       The Senior Operations Manager was appointed to conduct the investigation which was held on 1 November 2017. The Complainant was unrepresented and confirmed to the investigator that he was happy to proceed on that basis.

5.       The investigator explained that an incident of flooding had led the client to review CCTV footage which gave rise to the allegations against the Complainant. The investigator showed the Complainant the CCTV whereby it appeared that the Complainant entered the control room at approximately 10 pm, put his feet up on a chair and fell asleep until his colleague entered the control room at approximately 5am. The Complainant denied that he was asleep and alleged that he was awake the entire time looking at his phone. The investigator pointed out at the sensor lights didn’t turn on at all, that he didn’t take a drink of water at all, that he didn’t go to the toilet at all during the 7 hours period. The Complainant remained firm that he was not asleep. During the meeting the Complainant admitted to using his laptop and mobile phone on occasion whilst on duty

6.       Taking everything into account including the Complainants version of events, it was found that the matter should proceed to a disciplinary hearing.

7.       On 9 November 2017 the Complainant was invited to attend a rescheduled disciplinary hearing, on 13 November 2017.   In the invitation letter the Complainant was again made aware of the allegations against him and afforded the right to representation. The Complainant was again given a copy of the disciplinary procedure and made aware that the outcome of the meeting could result in disciplinary action being taken, up to and including dismissal.

8.       The Operations Manager conducted the disciplinary hearing. The Complainant was in attendance with his SIPTU representative. The Representative objected to the use of the CCTV footage in the process as she alleged that the Respondent did not have the right to use it. The Operations Manager confirmed that the Respondent had the permission of the client to use the footage and that due to the alleged incident occurring while the mall was still open, had an impact on the safety of customer which was more of a reason to use the CCTV footage.

9.       The Complainant alleged that he was awake throughout his shift even though he didn’t appear to be moving, and even though the motion sensor lights in the room didn’t turn on.

10.   After giving due consideration to the case, the Operations Manager issued his outcome on 16 November 2017 which set out that he found that the allegations again the Complainant were proved, that they amounted to gross misconduct and that he would be dismissed as of 16 November 2017. The Complainant was afforded the right to appeal.

11.   On 20th November 2017 the Complainant appealed the decision on four grounds. The Head of Human Resources and Payroll was appointed to hear the appeal which took place on 15th December 2017.

12.   The Complainant’s union representative was again in attendance and highlighted her concern about the use of CCTV footage in the process. The Appeals Manager pointed out that the Complainant gave his permission to view the CCTV footage at the investigation hearing.

13.   The Complainant said that he did not know where he failed to fulfil his duties. The Appeals Manager reminded hi him of the observations from the CCTV footage that he did not appear to move for a considerable length of time. The Complainant stated that his upper body was moving, that his feet were on a chair and that minor movements would not cause the sensor lights to activate. The Appeals Manager asked the Complainant if he physically moved left the chair to which the Complainant stated that everyone is different and that he is the type of person that could sit still for long periods.

14.   The Appeals Manager issued her outcome on 20th December 2017. She set out that had decided to uphold the decision to dismiss the Complainant because, after considering all the evidence presented, she did not believe that as a Security Officer for the Respondent company, the Complainant could devote his whole time and attention to his duties when he was engaged in activities on his personal laptop and mobile phone. The Appeals Manager also set out that she could not see how remaining in his seat with his feet up for hours could constitute fulfilling of his duties and that she came to the reasonable conclusion that he was asleep for that period whilst on duty.

15.   The Complainant then lodged his claim to the Workplace Relations Commission on 22nd December 2017.

Respondent Position.

1.       The Respondent carried out a fair and comprehensive investigation, disciplinary hearing and appeal meeting. At all junctures the Complainant was afforded the principles of natural justice. In line with fair procedures the Complainant was informed of the allegation against him and provided with the appropriate documentation and evidence. He was afforded the right to representation, given the opportunity to state his case, was informed of the possible outcome of the disciplinary hearing and was afforded the opportunity to appeal the disciplinary outcome.

2.       The Complainant was employed in a safety critical position with the Respondent and a lot of trust was placed in him. He maintained throughout the disciplinary process that he was not asleep whilst on duty but this was simply not credible. Having reviewed the CCTV footage of the night in question, the Respondent reasonably concluded that the Complainant was asleep for circa 4 hours of his shift which is simply not acceptable.

Conclusion.

The Complainant was employed as a Security Officer with the Respondent company which carried a lot of responsibility and trust, especially as was placed onsite with one of the Respondent’s clients. The Respondent carried out a full and fair disciplinary process which ultimately led to the Complainant being dismissed for his own actions and his failure to devote his whole time, attention and abilities to his duties and responsibilities.

The Respondent respectfully requests that the Adjudication Officer finds that the Complainant’s claim under the Industrial Relations Act, 1990 fails.

I listened very carefully to the arguments made by both parties at hearing and have gone over the submissions several times prior to arriving at any conclusion in this case.

In relation to the letters received by the Complainant I note that they have one thing in common:

“It is alleged that whilst on duty at xxxxxxx week beginning 16/10/17, you failed to devote your whole time, attention and abilities to your duties and responsibilities during your normal working hours”.

This passage first appears in the letter dated 25th October 2017 from the HR Generalist to the Complainant advising him that he is being placed on paid suspension until the formal disciplinary investigation procedure has been completed.

In her letter dated 27/10/17 the Head of HR and Payroll informs the Complainant that a disciplinary investigation meeting under the Company’s disciplinary procedure will take place on 1st November 2017. Again, the above passage is used in this letter. (I note that this letter is from the Head of HR and Payroll who heard the final appeal against dismissal).

By letter dated 9th November 2017 the HR Generalist writes to notify the Complainant that a disciplinary hearing will take place on Monday 13th November 2017 at 12.30pm to discuss the following allegations made against you. Again, the above passage is inserted.

By letter dated 16th November from the Operations Manager to the Complainant the Complainant is informed that he is being dismissed for Gross Misconduct. The above mentioned passage is once again inserted to this letter. This letter also states that “I have come to the conclusion that the above allegations are proved, and that they constitute an act of Gross Misconduct in accordance with our disciplinary rules”.

In the outcome of appeal hearing letter dated 20th December 2017 the passage is once again mentioned. I also note from the notes from the appeal hearing that the Appeals Manager (Head of HR and Payroll) does not mention anything about the Complainant being asleep, the only mention of being asleep is made by the Complainant and his representative.

From a study of the Respondent’s Employee Handbook 2017 I refer to page 33, Section C: Disciplinary Procedure.

It would appear that the Respondent company has three levels of Misconduct – Minor Misconduct, Major Misconduct and Gross Misconduct.

Looking through the examples of Major Misconduct I see the fifth bullet point reads as follows:

·         Failure to devote the whole of your time, attention and abilities to our business and its affairs during your normal working hours.

Pages 34 and 35 of the Employee Handbook 2017 addresses the subject of Disciplinary Action. Major Misconduct has a Disciplinary Action process of Written Warning – Final Written Warning – Dismissal, a three-stage process. In this instant case the Respondent chose to go directly to dismissal.

Much was said at the hearing on the use of CCTV in disciplinary hearings and permissions required to use CCTV footage during disciplinary processes. The Complainant’s representative, as part of her submission, provided quite a comprehensive document from the Office of the Data Protection Commissioner and without being expert on this subject some of her objections may well have been justified. Any complaints on this matter more readily sit with the Office of the Data Protection Commissioner.

In this instant case I have concluded that the Respondent failed to follow their own Disciplinary Procedure and the sanction of summary dismissal was disproportionate.

In mitigation the Complainant commenced a new job in or around 5th February 2018, some seven weeks after his dismissal by the Respondent.

I find that the complaint under the Industrial Relations Act, 1990 is well found.

I recommend that the Respondent pays compensation to the Complainant of €2,000.

As outlined above.

Disciplinary Procedures.