Complainant

Respondent

Anonymised Parties

A Manager

A Contract Logistics and Security Company

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-00011972-001

17/06/2017

The dispute concerns incidents which took place in and around a major Supermarket in the Kildare area in April 2017. The Complainant was a Senior Manager with the Contract Security Company covering the Supermarket. Arising from these incidents the Complainant was subject to an Investigation and Disciplinary process resulting in his Dismissal.

On the 13th April 2017, the Complainant was away from Dublin. He received a phone call from a National Account Manager asking him to immediately go to the Respondent Head Office. On arrival at the Respondent HO he was met by the CEO- Mr XA.   The CEO invited the Respondent to explain to him about the incident that had taken place at the Kildare site on the 11th April 2017. He was invited to effectively “come clean” about the Kildare incident and save the Company and himself a lot of unpleasantness. He could resign from the Respondent with a clean record. The CEO expressed the view that in his experience this was always the best way in these situations. If he chose not to do so then it would be out of the CEO’s hands and a full Investigation would take place which could lead to the Complainant’s dismissal. The Respondent maintained that he had no idea what the CEO was talking about. The CEO then asked him to go to a meeting room and wait. Sime time later two HR Executives arrived and placed the Respondent on paid Suspension. He was given no reasons.

An Investigation meeting took place on the 21st April, followed by a Disciplinary Meeting on the 3rd May 2017. The Complainant received a Dismissal letter on the 8th May - he was dismissed for bringing the Company into Disrepute and creating a fundamental breach of trust in his employment relationship.

He appealed the Dismissal. The Appeal hearing took place on the 26th May and was unsuccessful.

The main points made by the Complainant were that

1.       His alleged association with two third party women on the night in question had not undermined his trustworthiness and ability to carry out his duties.

2.       He did not see how the association with the two women could cause such Reputational Damage to the Respondent

3.       The refusal of the Respondent to accept as credible his version of events for the 11th April was unfair.

4.       While he admitted that he was with the two women he had no idea what they were doing in the Store in question.

5.       All told he felt that the Respondents had failed to adequately substantiate their case and his dismissal was unwarranted.

In his Oral evidence and in the Arguments made by his Representative it was strongly contended that the initial meeting with the CEO was a case of complete prejudgement. He was found guilty before any investigation. The Security Contract with Supermarket chain was of major significance to the Respondent. He had been denied all natural justice, “hung out to dry” by the Respondents in their efforts to please the Supermarket Chain.

In his Oral evidence the Complainant mentioned that he had been arrested by the Gardaí in relation to this matter but had been released. The DPP had decided not to proceed with any case against him.

The Complainant was employed since 2012 in a senior executive positon in the Security branch of the Respondent business. An incident had taken place in Kildare on the night of the 11th April 2017.

A full investigation process had been gone through (21st April) which was followed by a Disciplinary Hearing Process. (3rd May 2017) All rights of good procedures had been followed in both stages. Following the Disciplinary Process outcome, the Complainant was dismissed by letter of the 5th May.

The Dismissal was the subject of an Appeal to the Group Managing Director on the 26th May 2017. The Appeal was unsuccessful and the Dismissal was confirmed.

At all stages the Company Investigation and Disciplinary processes were followed to the letter and all rights of Natural Justice observed. All evidence had been presented to the Complainant for his consideration and he was at all times offered full representational rights. The Respondent has detailed written staff Investigation and Disciplinary procedures which are fully communicated to all staff.

Detailed minutes of all meetings were available to the Adjudication hearing as were still images from CCTV cameras.

The Complainant was in a Senior Security position involving a high level of trust. This trust had been irrevocably breached and a dismissal was the only option.

3:1     The Law and Legal Precedent.

3:1 (a) The Unfair Dismissal Act, 1977 and Natural Justice

The relevant legislation is the Unfair Dismissal Act,1977 and specifically Section 6(4) the “Conduct” clause which specifies that

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

( a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

( b) the conduct of the employee,

In addition, in any consideration of an Unfair Dismissal the rules of Natural Justice are paramount.

This is best set out by Mr. Justice Flood in the landmark case Frizelle v New Ross Credit Union Ltd, [1997]IEHC. where he ruled that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct:

“1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3. The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4. The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 put this into a practical format.

3:1(b)    The Role of a Tribunal /Adjudicator and the Band of Reasonableness

It is accepted law that the function of a Tribunal or in this case an Adjudicator is not to re-run an Investigative Process and attempt to substitute a new or alternative finding once the Tribunal or Adjudicator are happy that the processes are fair and reasonable.

The Decision reached by the Employer has to be seen and considered by the Adjudicator against the Band of Reasonableness - in other words does the decision appear to be “reasonable” for an employer in that industry and particular circumstances.

Legal Authorities that are normally cited in these cases would be principally as follows.

The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445

“It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295:

       “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether the investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.”

The point was developed further in the UK Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was elaborated upon at length.

Accordingly, in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “band of Reasonableness”.

3:2     Review of the Evidence both written and oral.

Extensive written evidence was presented by the Respondent and supported by considerable witness evidence at the Oral hearing. Full cross examination of the evidence and witnesses took place by the Complainant’s representative.

Likewise, the oral evidence of the Complainant was examined by the Respondent’s representative.

Having listen to all the oral evidence and carefully read all the documentation and extensive employment procedures I came to the view that a full and fair process had been followed up to and including the final Appeals stage. I could find no faults under the Natural Justice or SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures headings.

I noted, in particular, the evidence of the Company Manager, Mr. XB, who conducted the Disciplinary Hearing. From his background and extensive experience in Security and Investigation matters and his obvious high standard of integrity I found his evidence to be credible.

I came to the view that he had carried out his duties with fair procedures and without any outside or other Company Managerial efforts to influence his decision. He was questioned closely by the Adjudicator on these points.

In the Appeal Hearing the Complainant effectively made an admission that his actions had not been helpful to his case and could be seen in a most disfavourable light. Again, I found the Appeal Hearing to have been conducted to a procedurally high standard.

Regarding the Argument by the Complainant that the initial meeting with the CEO, Mr XA, on the 13th April had been in effect a prejudgement and all that followed was designed to support his prejudgement I considered the oral evidence of the Investigation Officer Mr. XC and the Disciplinary manager Mr. XB as regards their independence of function. Both gave credible evidence that they were not influenced as to their decisions by Senior Management. In particular, the evidence of Mr. XB I found most convincing on this point.

As regards the “Reasonableness” argument the Complainant was employed as a Senior Executive in the Security division on the Respondent. The investigation had revealed serious issues of a security nature and the dismissal decision could not be seen as outside the band of reasonableness in that Industry.

The nature of the penalty, Dismissal, was discussed. The view of the Respondent was that the breach of confidence and trust had been so severe that offering the Complainant a demotion and reallocation as lower level Security Operative was not an option.

3:4       Conclusion.

I found that a fair and reasonable process had been followed, Natural Justice had been observed at all times and the final penalty was in the band of reasonableness for an employer in that industry.

Accordingly, I did not find that an Unfair Dismissal had occurred.

The claim is dismissed.

Act

Complaint/Dispute Reference No.

Summary Decision: refer to Section Three above for detailed reasoning.

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

CA-00011972-001

Claim is dismissed.