Complainant

Respondent

Anonymised Parties

An Emergency Service Controller

A Fire Authority

Representatives

Peter Glynn SIPTU

Brendan Hayden, Dublin City Council

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-00012125-001

26/06/2017

The Complaint is that the procedures used by the Respondent in conducting its investigation and dismissal were flawed and not in adherence with the principle of fairness

1.       I started work as an emergency service controller on 12 October 2015

2.       My promotion period was due to expire after one year after which I would have been made permanent, 12 October 2016.

3.       However, on foot of an investigation into a work place incident, my promotion was extended. I say that the way that this was done was unfair and in breach of the Respondent’s own procedures. My probation period was due to expire in October 12th 2016 and even though the incident occurred in August 2016, I was not charged until 26 October 2016, ie after my probation period had finished. I say that as such the decision to extend my probationary period was made before the matter had even been heard or determined.

4.       I was informed that on foot of two further the incidents that investigations were being carried out under a Fire Brigade Disciplinary code however in relation to each alleged incident, that code that was referred to and under which the investigations were subsequently carried out did not contain the sanctions that were ultimately placed on me.

5.       At no stage was I ever given any clarity of the charges that were set against me

6.       The Respondent did not approach the investigations with an open mind, they just wanted me out.

7.       The explanations that I provided were not listened to.

8.       In relation to incident 1, I accepted fault however I say that the decision to extend my probationary period is evidence that at that stage the Respondent was trying to set up an easy route for them to get me out of the service.

9.       In relation to incident 2, this happened 16 months before it was investigated and I believe that this incident was reactivated and rolled into the other complaints in order to add evidence to a case to dismiss me. It is noteworthy that the gardai had decided not to pursue the matter many months earlier.

10.   In relation to incident 3, the message that I sent was a private message. I was not purporting to be acting on behalf of the Respondent when I sent it. I did not identify myself as a person who had a connection to the fire service. The information that I had was not derived from listening to the emergency call recording, it was conveyed to me by a third party who attended my aunt’s funeral. This information conveyed that no attempt to perform CPR was made when my aunt was found in a unresponsive state. To know this was bad enough, to know that there were young children present made it worse, but to know that this person then subsequently posted information online about my aunt in the days following her death was unacceptable. The message was a desist message. It was a private message sent at a time of great sadness and anger for me and my family. I was entitled to tell the person to stop aggravating my family by her online behaviour and I did so. This person was present when my aunt used illegal drugs and died from an overdose and yet this person took no action to prevent it nor took any action to ameliorate the situation, by giving CPR when she knew that my aunt was in a critical condition. I was fully within my rights to be upset and annoyed by her subsequent behaviour and what she had posted online. I was entitled to tell her to stop her behaviour. This is a matter of my private life and should not have formed the basis of a reason to dismiss me.

11.   Apart from the procedural wrongs which led to the Chief Fire Officer recommending that I be dismissed, the sanction was disproportionate given the extreme circumstances that I was in when I sent the private message.

12.   I was invited to a disciplinary meeting yet I was not warned, in advance of the meeting, that there was a risk that I could be dismissed.

13.   Ultimately, I was dismissed under the same code that, expressly, does not permit dismissals to be made

14.   I was not afforded the right to appeal the decision to dismiss me

15.   I am seeking reinstatement

1.       The fact of the dismissal is not in dispute. The dismissal was justified based on misconduct.

2.       The Complainant started work under a fixed term contract as an emergency service controller on 12 October 2015

3.       There were three incidents that ultimately formed the basis of the decision to dismiss the Complainant. All three incidents were serious but it was the third incident that proved to be the tipping point in their decision to dismiss him.

4.       The Respondent accepts that the procedures dealing with the disciplining and dismissal of members of the fire service is out of date and requires updating however substantively there were good grounds to dismiss the Complainant and they seek that decision be found as a justifiable dismissal.

5.       Incident 1

The first incident occurred in August 2016. It involved an emergency call being made to the Emergency Centre when the Complainant was on duty. The Complainant received the emergency call but did not process it correctly and afterwards he closed the case. This meant that not only was the emergency call not responded to, but the record of the call was deleted by him. He did not alert anyone to this incident at the time. The matter only came to light after a HSE National Ambulance Service complaint was received. After an investigation into this matter during which the details of the incident were put to the Complainant, he was allowed trade union representation and a hearing took place, the Complainant accepted fault. The sanction was made to extend his probation period and to refer the recommendation to the Chief Fire Officer. However, in the meantime the second incident arose

6.       Incident 2

This incident involved the improper use by the Complainant of a PHECC identification (Pre Hospital Emergency Card which identifies the holder of the card as a trained and qualified paramedic). The incident took place in October 2015, the same month as the Complainant started work. The Complainant had sent a false PHECC ID card to a friend of his who worked for the Ambulance Service and was looking for someone to assist with St. John’s Ambulance cover at an outdoor event. The Complainant accepted that he had sent it but had immediately sent his friend a message saying not to use it. How the false PHEC card existed was explained him as follows: the Complainant met a man in Drogheda who had in his possession a PHECC card and when the Complaint joked to him that he needed one of those, the man later sent him a mock-up of a card with the Complainant’s image on it via Whatsapp.   The investigation meeting into this incident took place in March 2017 however it was accepted that the incident had occurred some 16 months earlier. No action was taken at the time as the Gardai had seisin of the case and the Respondents were awaiting the Gardai response before acting themselves. The Gardai decided not to mount criminal charges against the Complainant however an investigation conducted by the Respondent concluded that a report would be produced and it would be sent to HR alongside other complaints.

7.       Incident 3

A member of the public complained to the Respondent that she received a private message from the Complainant and understood from it that he had inappropriately accessed the live recording of the emergency call made from the Complainant’s aunt’s house on the morning that she died. The message referred specifically to recording stating “It is after all on the live recording of the emergency call you made to the Respondent when she was found in the bed.”

The investigation heard from the Complainant that he had not gained his knowledge from the live recording but from someone at his aunt’s funeral, who had also been present in the house when his aunt died. However, the Respondent found that even if this were the case, his message gave the impression that he had accessed the live emergency recording, which is conduct that is prohibited by the Respondent and brought the reputation of the Respondent into disrepute.

8.       The investigation of the three incidents was referred to the Chief Fire Officer who conducted a hearing at which the Complainant and his trade union representative were present.

9.       It is accepted that the Complainant was informed that he was being investigated under the Respondent’s Code of Conduct and it is accepted that there is no sanction expressed in this Code to dismiss a member

10.   At the conclusion of the investigation the Chief Fire Officer issued a recommendation and the recommendation was passed onto the Executive manager of the Human Resources Division of the Respondent. It is accepted that this was not an appeal as the decision to dismiss the Complainant had not yet been made. Rather it was a decision by the Executive manager to either follow the recommendation of the Chief Fire Officer or not.

I find this complaint to be well founded. I find that the procedural flaws in the investigation into the three incidents were so flagrant that they rendered the decision to be flawed. The onus is upon the Respondent to demonstrate that the decision to dismiss was a fair one and I find that this test has not been met.

Specifically, I find that the Complainant was not informed prior to attending a disciplinary meeting that there was a risk that his employment might be in jeopardy. I also find it to be flawed that the Respondent’s warning letter inviting him to the meeting informed him that he was being investigated under a named disciplinary code, that did not include the sanction of dismissal. These flaws were not remedied by what was ultimately an appeal hearing because the investigation phase of the disciplinary process was so flawed.

In relation to the three incidents, I find that the Complainant contributed to the dismissal by his conduct. Specifically, I find that the failure to observe the proper protocol over the PHECC card use contributed to his dismissal. I also find that the Complainant gave the impression that he had improperly accessed a live recording of an emergency call. I do not find that the Complainant did access this call, nor do I find that the Complainant should have been prevented from responding to on-line provocations that affected his family at a time of great distress. It is his right as a private person to so respond. However, his words, whilst unintentional, gave the impression that he had listened to the live emergency call recording, and giving that impression undermined the reputation of the Respondent, who give the public assurances that such calls are only accessible by Gardai investigating an offence or by the call handler who receives the call at first hand. For these reasons, I find that the Complainant conduct contributed to the dismissal by 50%.

In terms of the remedy being sought being reinstatement, I find that such a remedy would be inappropriate given the breakdown of trust between the parties and given too, the contributory conduct of the Complainant that I have found. The Complainant gave evidence that his loss following his dismissal in April 2017 that he set about developing a business idea and that from summer 2017 onwards he concentrated solely on this and did not seek alternative work. For this reason his loss is limited to the period of time that he attempted to mitigate his loss.

Allowing for a discount for contributory conduct I award the Complainant €5000.00 in respect of his unfair dismissal.