ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00011084

Parties:

Complaint(s):

Date of Adjudication Hearing: 30/07/2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s)and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s )

Background

The Claimant worked for the Respondent from the 10th of October 1995 until the 22nd September 2017 as a Static Security Officer. He was paid €419.64 per week

The Claimant was dismissed from his employment with the Respondent on the 22nd of September 2017

Respondents Arguments

The Claimant was dismissed following a complaint made by a member of the Public via a Client of the Respondent, concerning events of the 9th of August 2017. The Complaint was investigated as per company procedures.

The investigation included the review of CCTV footage. The Complainant was award the opportunity to review along with a Representative before the investigative meeting in which the Complainant was requested to offer his version of the events in question.

The Complainant admitted hugging the lady in question, this was also confirmed using CCTV footage.

The Complainants actions were in breach of various company policies and procedures while also falling under a breach of the code of conduct as “Other Misconduct”.

The Complainant had an active “Final Written Warning” at the time of the incident and following investigation.

The Complainant was awarded the right of Appeal which upheld the decision to dismiss him.

Unions Arguments

The Respondent did not award the Claimant the right of appeal to the Final Written Warning issued in Oct 2016.

The Respondent did not interview the member of public where the complaint originated, instead the Respondent acted on information received through a third party which should be considered hearsay.

The Claimant was not offered the right of cross examination of the originator of the Complaint.

As a result, fair procedure was not offered to the Complainant therefore the Dismissal should be deemed unfair.

Findings

Both Parties made submissions at the hearing.

I find that right of appeal was offered to the Complainant to the Final Written Warning in a letter dated 14th of October 2016. In said letter, the appeal was to be lodged in writing outlining the reasons for appeal within seven days. I find no evidence that an appeal was requested in writing whatsoever. I find that the ‘Final Written Warning” to be applicable.

I find that the Complainant “Hugged” the originator of the complaint but states that it was at her request.

I find that the Complainant did not personally know the person in question but recognised her as a regular visitor to the area.

I find the action of “hugging” a member of public outside the roles and responsibilities of a Static Security Officer and is a particularly ill-conceived action especially considering the Claimant did not personally know the person in question.

I find that the Complainant was not offered the opportunity to cross examine his accuser but was awarded the opportunity to review the CCTV footage of the time(s) in question.

I find that the Respondents conclusion to the investigation was based on CCTV footage and the Claimant’s version of events.

I find the uncontested evidence is that physical contact between the Complainant and a member of the public during an interaction and that the member of public later made a complaint regarding the interaction.

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.

Disciplinary action was warranted and fair, I uphold the Dismissal.

CA-00014795=002

Terms of Employment Act 1973

Background

The Claimant worked for the Respondent from the 10th of October 1995 until the 22nd September 2017 as a Static Security Officer. He was paid €419,64 per week

Findings

As per the Respondents policies and procedures, dismissal without payment of notice is applicable in situations where gross misconduct has been established. The Respondent classified the conduct as “Other Misconduct” and not “Gross Misconduct”,

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I uphold the claim of payment of the notice period and award the Claimant €3,357.12 in notice payment

Dated:   7th December 2018

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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