ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00007065

 Anonymised PartiesA Security OfficerA Security Company   Representatives

ActComplaint/Dispute Reference No.       CA-00009635-001

Date of Receipt                                              09/02/2017

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

Date of Adjudication Hearing: 03/11/2017

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure: In accordance with Section 8 of the Unfair Dismissals Acts, 1977-2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background: The Complainant was employed as a Security Officer from 9 July 2012 until 8 November 2016 when he was dismissed from his employment following a disciplinary procedure. His gross pay was €376.25 for a 39 hour week.

Summary of Respondent’s Case: The Respondent denied that it unfairly dismissed the Complainant. The Respondent submitted that the Complainant had been found guilty of serious misconduct in May 2016 and where the Complainant had acknowledged to his wrongdoing at the time. The Respondent advised that the Complainant had appealed the disciplinary sanction of a final written warning at the time, and following a consideration of the appeal the Respondent upheld the sanction of the final written warning on the basis that the Complainant had in fact admitted to the wrongdoing. The Respondent further contended that the Complainant had not properly submitted the appeal in accordance with the company procedures which advise that appeals are to be submitted to the Managing Director and not to the manager that the Complainant had submitted his appeal to. The Respondent advised that following three further serious breaches of procedures in October 2016, which in their own right would amount to serious misconduct, the Complainant was subject to a further disciplinary procedure in early November 2016.   These allegations of wrongdoing referred to the Complainant leaving a security control room door open, where he was one of three staff in the security control room which was contrary to standing orders, and where he was accused of using a personal mobile phone while on duty. The Respondent maintained that the Complainant was provided with a fair disciplinary hearing of the allegations, and where the Complainant acknowledged to wrongdoing. As a consequence, and in light of the seriousness of the misconduct, the outcome of the disciplinary hearing amounted to summary dismissal. Accordingly, on the 8 November 2016 the Respondent dismissed the Complainant for serious misconduct, and the fact that he was on a final written warning at that stage. The Respondent acknowledged that two colleagues of the Complainant were also subject to a disciplinary hearing for similar offences, but following a disciplinary procedure they were not dismissed, and where one of the colleagues did not receive any sanction, whereas the other colleague would have received a final written warning. The Respondent justified the dismissal of the Complainant on the basis he was already on a final written warning and that he would have been aware that further offences could lead to his dismissal.   As stated, in light of the seriousness of the offences and the written warning the decision was taken to summarily dismiss the Complainant. The Respondent advised the Complainant appealed the sanction and it heard the appeal, but following consideration of the evidence it maintained that the Complainant had breached its operating procedures, and as a consequence of both the seriousness of the misconduct and the fact he was on a written warning the decision to dismiss was upheld following the appeal hearing. In cross-examination, and with regard to the disciplinary procedures of May 2016 where the Complainant was issued with a final written warning, the Respondent maintained that whilst the appeal was not submitted correctly in accordance with its procedures, it was brought to a group of senior managers who discussed the matter. The managers decided as the appeal had not been directed to the correct person, and the fact that the Complainant had acknowledged to his wrongdoing, that it upheld the final written warning. The Respondent confirmed that it did not invite the Complainant to any appeal hearing as it had not been properly submitted, whilst at the same time it acknowledged that a letter was sent to the Complainant advising him that if he wished to appeal the matter it should be submitted in writing to a named manager and where the Complainant had in fact submitted his appeal to that manager. The Respondent also acknowledged that it did not inform the Complainant in writing of the outcome of the appeal but that some weeks later during a telephone conversation with the Complainant that a manager would have advised the Complainant that his appeal was considered and not upheld. The Respondent advised that the Complainant did not pursue the appeal and noted at the disciplinary hearing in November that he acknowledged that he had received a final written warning., and did not raise it in his appeal against his dismissal at that time.

Summary of Complainant’s Case: The Complainant submitted that he was subject to a disciplinary procedure in May 2016 where he was issued with a final written warning on 12 May 2016. He was advised as part of this disciplinary procedure that he had a right to appeal the sanction and where he received a letter advising of same and that he could submit his appeal to a named manager of the Respondent. The Complainant maintained that he submitted his appeal to the named manager and received an email that an appeal hearing will take place sometime after 7th June 2016.   The basis of the Complainant’s appeal at that time was that he was not happy with the harshness of the findings of the disciplinary hearing of May 2016, where he contested the interpretation of some evidence applied in the course of the disciplinary hearing, and that he wished for this to be considered again.   Having made his submission to the named manager he was left with the understanding an appeal hearing would be held. The Complainant submitted that he heard nothing further from the Respondent in relation to his appeal despite the fact he had been advised the matter would be looked into after 7th June 2016. However, he never was invited to an appeal hearing, and maintained that he never received any notification of the outcome of his appeal.   The Complainant denied the evidence provided by the Respondent that he would have received a phone call from the manager to tell him there was to be no appeal hearing. The Complainant maintained that it would be rare in any event for him to receive a phone call from the manager in question, and where he certainly would not have received a call in relation to his appeal.   The Complainant advised he was then subject to further disciplinary procedures for alleged offences on 27 October 2016 where allegations were made against him, and two other employees, with regard to leaving a control room door open, where he was one of three staff in the control room which was contrary to standing orders, and use of personal mobile phone while on duty. The Complainant advised that following the disciplinary hearing into these complaints he was dismissed on 8 November 2016, and after appealing his dismissal he was advised on the 28 November 2016 that the disciplinary sanction was upheld.   The Complainant argued that whilst he was dismissed for the offences, one of his colleagues similarly accused did not receive a sanction, and another colleague did receive a sanction but was not dismissed. For his part the Complainant was advised by the Respondent that as he was found guilty of a wrongdoing and as he was on a final written warning that a summary dismissal was deemed appropriate in his case.   The Complainant therefore submitted that he was unfairly dismissed as his appeal to his written warning of May 2016 was not heard by the Respondent, and where at the disciplinary hearing on the 8 November 2016 the Respondent relied upon the earlier warning in deciding to dismiss him. The Complainant and maintained that he was treated less favourably than to other colleagues who were accused of similar offences.

Findings and Conclusions: In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”. S6(4) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the conduct of the employee. In addition S6(7) of the Act as amended requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose ofdismissing the employee …or with the provisions of any code of practice. I must therefore consider both the substantive issues leading to the dismissal, and the fairness of the procedures adopted. As to whether there were substantial grounds for the Complainant’s dismissal on the ground of gross misconduct, the applicable legal test is the “band of reasonable responses” test, as comprehensively set out by Mr Justice Noonan in the context of Section 6 of the Unfair Dismissals Act 1977 in the High Court case of The Governor and the Company of Bank of Ireland -v- James Reilly (2015) IEHC 241, wherein he stated: “It is thus clear that the onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s. 6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned - see Royal Bank of Scotland -v- Lindsay UKEAT/0506/09/DM.” In the case within the Complainant has argued that the action of the Respondent to dismiss him was unfair in that he was denied a right of appeal to a final written warning that ultimately led to his dismissal, and if it was not for this final written warning he would have been treated similarly to his colleagues and would not have been dismissed. It is noted the Respondent has argued that the other colleagues were sanctioned appropriately and where one of the employees has made a complaint of constructive dismissal against the Respondent in relation to the issues. In relation to procedural fairness, I am guided not only by the Respondent’s disciplinary policy, but also by the requirement in S.I. No. 146/2000 - Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) which provides that the procedures for dealing with disciplinary issues (reflecting the varying circumstances of enterprises/organisations), must comply with the general principles of natural justice and fair procedures. The contractual and constitutional rights to fair procedures are also well established (In Re: Haughey [1971] IR 217). Such rights provide for a right of appeal, and to be heard as part of that appeal process. Based on the evidence provided I am satisfied that the Complainant may well have breached operating procedures within the organisation, and where such breaches occur the Respondent is entitled to invoke its disciplinary procedures to address same. Based on the Respondent’s risk documents some of the breaches the Complainant was found guilty of were deemed to be serious misconduct, particularly in relation the actions of the Complainant in the Respondent’s security control room. I do not find the Respondent erred in its handling of the initial disciplinary procedures adopted in May 2016, or in its investigation of the issues in November 2016.   However, it is clear that once the Complainant exercised his right to appeal the disciplinary sanction in May 2016, and where he followed the instructions provided to him in the disciplinary letter- in that he was told he could make his appeal to a named manager- the Respondent was obliged to provide an opportunity for the Complainant to have his appeal heard in this way. It is a matter of fact that the Complainant did lodge an appeal to the manager he was told to make such an appeal to, and where the appeal in effect sought to address the severity of the disciplinary sanction- a final written warning.   I am also satisfied, in accordance with the Respondent’s procedures, that the Respondent is obliged to ensure the Operations Director would meet with the employee in an attempt to resolve matters, and where matters remained unresolved and appeal hearing will take place. It further advises that the appeal hearing is not intended to be a repeat of the investigation process but to address specific issues which the employee feels have received insufficient consideration such as mitigating circumstances, procedural deficiencies, and severity of the sanction imposed. It further advises that the appeal hearing will normally be held within 10 working days of the appeal being lodged and where the Managing Director will hear all appeals and his decision would be final.   Based on the evidence provided I am satisfied that the Respondent did not adhere to its own procedures, and more specifically in accordance with its letter to the Complainant. The Respondent maintained that as the Complainant had admitted to the wrongdoing it was not appropriate to reinvestigate the case, and equally as the Complainant had not submitted his appeal to the Managing Director it had been incorrectly submitted and therefore failed.   I find this decision remarkable in light of the fact that the Complainant was advised in writing to submit his appeal to a named manager, which he did. Furthermore, the basis of the appeal was to address the severity of the sanction imposed and some perceived procedural deficiencies, all of which are set out in the Respondent’s appeal procedures. On that basis, I find the Complainant was denied his contractual rights to have an appeal he had made in May2016 heard, and the decision of the Respondent to dismiss the appeal was flawed and clearly contrary to its own policies, and natural justice.   I acknowledge there is a conflict in evidence in relation to whether the Complainant was advised of the outcome of the Respondent’s so-called appeal meeting that was supposedly held by a group of senior managers. This process, if it happened, appears contrary to the Respondents policy, a policy it has argued the Complainant did not adhere to. It seems that whilst on the one hand the Respondent wishes to deny the Complainant a right of appeal because he did not correctly adhere to the procedures, yet on the other hand the Respondent seems happy to rely on it’s own adaptation of the procedures to suit its argument. Even if its own handling of the appeal did occur as stated, there is a marked absence of any record of its follow-on actions with the Complainant regarding any decision the Respondent made about the appeal, and an absence of any formal record of how it dealt with the appeal or the outcome of same. I am satisfied, based on the evidence that the Complainant did not receive sufficient communication, if any, with regard to the handling of his appeal. I also find the Respondent ignored its own procedures and its specific instruction to the Complainant on how it would handle his appeal.   In addition, I find that in light of denying the Complainant with a proper appeal process in the first disciplinary hearing in May 2016, that the second disciplinary procedures which led to the Complainant’s dismissal was unfair in that the Respondent relied on a sanction that had been appealed but where it did not allow that appeal to progress. It is clear that the Complainant’s colleagues who were accused of similar offences did not experience a dismissal as they were not on final written warnings, whereas the Respondent having upheld the wrongdoing relied upon its final written warning as the basis for dismissing the Complainant.   It is noted that the Complainant did not raise this as an issue at the internal appeal hearing to his dismissal in November 2016, however he has relied on it in his complaint to the WRC, which he is entitled to do.   I therefore find the Complainant was unfairly dismissed contrary to Section 6(7) of the Act in that the Respondent omitted to provide the Complainant with a fair procedure in May 2016 by denying him a right to appeal its disciplinary decision. I am satisfied that the actions the Complainant was accused of do amount to serious safety and security risks, and as such perhaps warrant a significant disciplinary sanction in their own right. However, in light of the sanctions imposed against his colleagues it is unlikely that a dismissal would have occurred had the Complainant not been on a final written warning.

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. For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977 I find this complaint to be well-founded and conclude that the Complainant was unfairly dismissed by the Respondent. Section 7 of the Unfair Dismissals Act 1977 sets out the various forms of redress including reinstatement, re-engagement and financial compensation which may be awarded. Relevant to the case within, where compensation only is sought, Section 7(1)(c)(i) of the Act provides: “…if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances,…” Section 7(2) of the Act sets out the factors which should be considered when determining the amount of compensation and in such circumstances consideration has to be given to whether the loss was attributable to an act, omission or conduct by or on behalf of the employer; the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee; and the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid. I also have to consider…the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure applied to dismiss the employee… and the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. In circumstances where it is undisputed that the Complainant had committed offences deemed to be serious misconduct, and which merited an investigation of matters by the Respondent, I am satisfied that the Complainant contributed in some degree to the circumstances giving rise to his dismissal and consequent losses. In further consideration of any act or omission of the Complainant, it is evident that in November 2016 the Complainant did not raise his concerns regarding the failure of the Respondent to allow him to appeal the disciplinary sanction in May 2016, and had this been raised in his appeal in November 2016 there may have been a different outcome to the Respondent’s decision to dismiss once it realised it was relying on the outcome of a flawed disciplinary procedure from May 2016, in that it failed to properly hear the Complainant’s appeal at that time. In relation to an act or omission by the Respondent, it clearly failed to progress with the Complainant’s appeal in May 2016, and in reviewing the Complainant’s conduct before deciding to dismiss him in November 2016 it ought to have been aware that an appeal had been lodged but was not properly progressed. In this regard, the Respondent omitted to provide the Complainant with a fair procedure in May 2016, and this flaw impacted on its decision to dismiss the Complainant in November 2016. I therefore find on balance the Respondent’s omission in failing to address the Complainant’s appeal in May 2016 impacted on the severity of the disciplinary sanction and consequently renders the dismissal as being unfair, and as such this has contributed to the Complainant’s loss. I further find the Complainant has acknowledged that due to family responsibilities he has not been actively seeking work. As such has not demonstrated a proactive approach to mitigating his loss, albeit before his dismissal he had been working a three by twelve-hour shift pattern that facilitated his family circumstances. He maintained it has been difficult to find a job that is as flexible to meet his domestic situation. Having deliberated on all these factors I consider it just and equitable in all the circumstances to award the Complainant €9,500. The Respondent is therefore ordered to pay the Complainant a total of €9,500 in compensation (subject to any lawful deductions).

Dated:   26.01.2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Key Words: Unfair Dismissal, Fair Procedures, Right to Appeal