ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00002894

ComplainantRespondentAnonymised PartiesA fares InspectorA Public Transport provider   Representatives Solicitors,  Solicitors.

ActComplaint/Dispute Reference No.   CA-00004016-001  Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 

Date Of Receipt:   22/04/2016  

Date of Adjudication Hearing: 07/11/2017 and 04/04/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.   In particular, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 22nd of April 2016) issued within six months of his dismissal, I am satisfied that I have jurisdiction to hear the within matter  

Background:

  This matter comes before the Adjudication Services on foot of a workplace relations complaint form created the 22nd of April 2016 and has been initiated in consequence of the Respondent Employer’s decision to terminate the Complainant’s employment by reason of gross misconduct. The employment was terminated by letter dated the 12th of November 2015 from the Respondent’s Security and Revenue Protection Co-ordinator (BM) and the decision was reached after an investigative and disciplinary process had been completed. The claim is brought within the time limits allowed. The fact of dismissal is not in dispute, and the Respondent accepts that the burden of proof rests with it to demonstrate that it has acted fairly and reasonably in all the circumstances. Based on the evidence I heard, I would determine that the Complainant’s case is twofold. The Complainant says aspect of the Investigation and disciplinary process were unsatisfactory and unfair. The Complainant states that an incorrect conclusion was drawn from the facts available to the Respondent Investigator and Disciplinary Officer. In addition, the Complainant says that the decision to dismiss was disproportionate and heavy handed in light of the issues that had been raised and investigated. Both parties opened up this case by way of written and oral submissions. These have been comprehensively considered by me as has the significant amount of oral evidence I have heard which was tested through cross-examination.  

Summary of Complainant’s Case:

The Complainant is a Revenue Protection Officer with the Respondent company and had been working with them since 2008. The complainant rejects the finding of Gross misconduct warranting dismissal made against him.  

Summary of Respondent’s Case:

The Respondent company was bound to investigate a complaint made by a member of the public regarding an alleged assault perpetrated by a member of it’s staff. The Company gets many complaints about it’s staff most of which are deemed to be unfounded. It is acknowledged that the Complainant’s role is a difficult one and tact and discretion is required. The Revenue Protection Officers get a lot of training regarding confrontation management. In response to this Complaint, the Respondent appointed a Ms. JB to conduct the investigation. This investigation involved meeting with the alleged victim (in the company of his father), taking statements from the five or six members of staff at work on the evening in question and obtaining relevant CCTV footage. The Investigator did not show the CCTV footage to any of the witnesses including the alleged victim. The Investigator did show the CCTV footage to the Complainant at the investigation meeting. The Investigator found the CCTV footage to be “compelling” and on foot of what she was observing therein, was satisfied that a Disciplinary process should be triggered. The finding made by the Investigator was That on the 24th of August 2015 at approximately 22:00hrs at Cowper ---- stop you engaged in actual or threatened physical violence against a ---- Passenger The Employer Handbook describes threats of violence to constitute Gross Misconduct for the purpose of Disciplinary proceedings. The Disciplinary stage was completed by Mr.BM who concurred with the Investigator regarding the outcome and the Complainant was duly dismissed on the 12th of November 2015. The Disciplinary Officer believed that the Complainant had failed to implement the appropriate training given to him. Again the CCTV footage was persuasive to the Disciplinary Officer.    

Findings and Conclusions:

I have carefully considered the evidence I have heard over the course of two days. I have studied the significant amount of paperwork which I have been provided with. The parties’ representatives were further given an opportunity to make concluding remarks at the end of the hearing. The Complainant herein commenced his employment with the light rail company in and around 2008. There can be no doubt that the Complainant was a good employee who had worked hard and done well within the Company. I was told that the Complainant had previously gone out of the workplace for a period of time following an incident which saw him being personally assaulted by a passenger. The Complainant was being facilitated in terms of his return to work, and in particular had been allowed at his request to change lines. The Complainant and his employer agreed that there was a considerable amount of training given to employees in respect of conflict management. The Complainant said it was not enough in circumstances where his evidence was that he would be abused on an almost daily basis with racial abuse sometimes forming part of that onslaught. However, the Complainant did well in the Conflict training assessment that was opened to me and it seems that the Complainant’s own comment when asked for feedback was a request for increased security. What is apparent is that on the night of August 24th 2015 the employees of this company were under a lot of pressure in circumstances where the trains were filled with large numbers of young men (and possibly women though these did not feature) fuelled up with alcohol and generally being difficult and disrespectful. One witness (an employee of the Respondent) describes these youths as “acting the maggot”. A significant number of these youngsters had no tickets but were disinclined to get off the tram and/or identify themselves when asked to do so by the Revenue Protection Officers. The Complainant and his colleagues had the unenviable task of challenging non-ticket holders for the purpose of issuing standard Fare Notices. There was no security to speak of and the staff with whom the Complainant was operating that night were all going about their business of checking tickets and ensuring things ran smoothly. It seems things were a bit chaotic. The six statements taken by Employees are consistent with one another. Lads were being removed and then jumping back on board via another door. They were being abusive and using foul language and racial slurs particularly pointed at the Complainant herein. The youths were in different states of drunkenness, they were abusive, disrespectful and were careless as to their own safety and the safety of others. The Complainant knew that this kind of abuse formed part of the overall abuse he might be subjected to though it seems the racial element might have got to him on this particular evening. The Gardai had been called and the Respondent security team were otherwise detained further out the track. It is common case that the Conflict Management training clearly identifies that an Employee - an RPO – should not allow himself or herself get drawn into a conflict situation and that the least suggestion of antagonism should trigger a response mechanism to simply walk away. There is no part of the training undertaken which suggests that physical altercation whether initiated or in retaliation can be accepted by the Employer. This seems sensible practised to me and I consider it appropriate that a company must be entitled to rely on it’s employees not to over react or lash out in any way. There is a trust issue here and the Employer must be expected to have assessed that Employees working the trains will not be volatile or susceptible to needling. Whilst there were ongoing and running difficulties with the train users and the train staff on the line and at the stations all the way into the city, it was an incident at the Cowper station that was brought to the attention of the Employer on the next day. On the morning of the 25th of August a Mr. L contacted the Respondent company complainant about having been hit in the back of the head as he was getting out of the tram. The young man in question did give evidence at the hearing and had also made a statement when the Respondent company had come back to him on foot of the Complainant lodged on the 25th of August. Mr. L said there were several witnesses though could identify none from amongst his friends. The Complainant’s colleagues made statements that did not disclose having seen a physical altercation though they did unanimously agree that the Complainant was having a hard time from many of the youths - whose comments were decidedly racist in nature. One of the Complainant’s colleagues a Mr P did confirm that some sort of altercation had taken place and that the Complainant was being accused of hitting a passenger though the person making the allegation had included a racial overtone… “Pakistani, you hit me”…or words to that effect. Mr. L categorically denied being racist. Mr. L’s statement was taken on the 19th of September and after that all the employees had been invited to disclose what they had recalled of the evening. At that time, a Ms. JB had been appointed to conduct the investigation into the allegation made by Mr. L. Mr. L was with friends that evening and he accepts that some of the people with whom he was travelling were not ticket holders and were asked to leave. Mr. L left with his mates (though he insists he was a ticket holder) but subsequently wanted to get on again as he had spotted a friend with whom he wanted to talk. Mr. L confirms that the Complainant told him to leave for a second time. This was at the Cowper station. The only independent evidence to hand was CCTV footage which I watched over and over again. I am satisfied that in this CCTV footage I could see Mr. L being hustled off the tram by the Complainant. I am further satisfied that there is some interaction between them as this is happening. I do not know what is being said but presume that whatever it was, lead to the next action. I am satisfied that just as Mr. L has moved out of shot of the camera, the Complainant raises his right arm and takes a swing at Mr. L. I cannot be sure that there is a connection made (and Mr. L says that there was), but I am satisfied that the footage shows an intention and an attempt to assault Mr. L. I should note that Mr. L had his back to the Complainant as he was moving out of shot of the camera and was not himself in the role of the aggressor. The Complainant appears to have something in his hand when he takes the swing and the most likely thing is his Work-issue Radio. The Complainant was shown the footage at the investigation meeting and whilst this might have been late in the day in terms of what might be considered good practise in an investigation, the Complainant did not (and indeed could not) deny that the fact of the footage and the content of the footage. Whether the Complainant had a different interpretation of the actions caught on camera is unclear as the Complainant sought to establish that he had no memory whatsoever of the incident (at the Investigation meeting). Much was made of the failure to name the alleged victim as being Mr. L. I do not see this as being particularly significant in the context of the footage shown. Once the Complainant had seen the footage and became aware of the very clear inferences which could be drawn from the footage he needed to be able to show how this could be justified and it didn’t really matter who the individual was. The Complainant did not justify what had happened (in the CCTV footage) at the investigation stage – when he simply said he had no memory of the incident “I can see what happens but I have no recollection of that”. At the Disciplinary stage the Complainant conceded he “did lift up my arm” but “My hand did not touch him”. However, When the Complainant appeared before the WRC he gave an altogether different account of a very personalised and malevolent interaction between himself and Mr. L (who it is noted did not have this latest account put to him through cross examination though the opportunity was there.). The Complainant gave evidence that he had felt intimidated and in fear for his life and that Mr. L had gesticulated threats to him. Even if I did believe this account, and I have my doubts, I do not see how it can justify throwing the first punch (albeit where contact is not certain). The Complainant has in the circumstances thrown doubt on his own credibility by elaborating on his previous accounts of what happened at the hearing before me. I have no difficulty in accepting that the Complainant was being subjected to an unacceptable level of racial and other abuse on the evening in question. His colleagues support this contention in their statements. A cohort of the passengers were behaving in an appalling way. The difficulty from the Complainants point of view is that he could provide no evidence to suggest that Mr. L was part of this general behaviour and even if he was (and the CCTV footage demonstrates that Mr. L was not as demure as his evidence might have suggested) I cannot see how an Employer can countenance an Employee going on the offensive and throwing the first punch. Both the Investigator and the disciplinary Officer relied on the content of the CCTV footage to persuade their final decisions. On balance, I find that this was not unreasonable. The CCTV footage is objectively persuasive. Once an Employee whose job it is to interface with the public every day has been shown to allow himself to get so riled up as to take a swing at a member of the public, the Employer is bound to question the Employee’s suitability to perform the job in which he has been trained. Regarding the issue of procedural deficiencies highlighted by the Complainant’s representatives, I cannot find that any perceived procedural flaws have any impact on the facts borne out in the CCTV footage. Regarding the issue of the sanction applied I accept that the Respondent company had no alternative and that the decision weighed heavily on the decision maker who knew the Complainant. Termination was the only option      

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. I find that the Respondent company acted fairly and reasonably in all the circumstances and accordingly the complainant’s claim under the Unfair Dismissals Acts fails.

 Dated:   29.01.2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath

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