UDD1817

The Adjudication Officer made his decision on 5^thMay 2017 and this appeal was received by the Court on 14^thJune 2017. The Adjudication Officer found against the Appellant and his complaint was dismissed.

Background.

The Appellant was employed by the Respondent from 21^stJanuary 2006 as a Security Operative until his dismissal on 10^thDecember 2015. The Appellant received a salary of €550.00 per week. The fact of dismissal is not in dispute.

Summary position of the Respondent

The Respondent operates a hotel. On 1^stNovember 2015, a female guest made a complaint regarding the Appellant as regards his actions on the night of 31^stOctober / 1^stNovember 20156.

The guest stated that she was approached by a Security Guard, the Appellant, in the early hours of Sunday morning in the hotel bar. She complained that the Appellant had told her that he was aware that she had been kissing a man on the Friday night and that he had CCTV footage of it and had been watching it.

The guest complained that the Appellant had brought her and her female friend to the security base and showed her CCTV footage of herself and the male person. The Guest stated that the Appellant had made lewd comments to her while playing the footage.

The Respondent’s operations manager, Mr JO’F, contacted the client who had arranged the event which the guest was attending and the client re-stated the complaint and emphasised the seriousness of the incident.

The guest called to the hotel on Tuesday 3^rdNovember and she complained that she and a female friend were approached by a security guard who had shown them CCTV footage and who subjected herself and her friend to offensive and inappropriate language and that several sexual remarks were made towards her. The guest was asked to provide a written statement which she subsequently did.

The Appellant approached a female guest in the hotel lounge and, according to his account given at a disciplinary hearing, after she ‘got smart with him’ he asked her if ‘she knew what she did the night before’.According to his own statement, provided as part of the investigation process, ‘she said something I can’t remember what it was and I said do you remember the way you were carrying on last night’ …’you and a male in private area of the hotel for staff acting inappropriate’

This grave misbehaviour was compounded by his then informing the guest that he had seen CCTV footage of her with a male friend and his offering to show the footage to the guest. The Appellant brought the guest into the security base without the authorisation of management and consequently in breach of security procedures. The Appellant further breached those procedures by showing the CCTV footage to the guest in the presence of another security guard, MH, who was his supervisor.

In the event that the Appellant had considered what he had seen on the CCTV to be an assault on the premises he was obliged to report that to the security manager, HR and the Gardai via an incident report. The claimant did none of these things.

When considering the appropriate sanction, the Respondent had regard to the seriousness of the allegations and to the account given by the Appellant in response to those allegations.

The Respondent wrote to the Appellant on 2^ndNovember 2015 and invited him to attend an investigation meeting. That letter advised the Appellant of the allegations being made as regards events of 31^stOctober / 1^stNovember 2015 and notified him of his suspension. The Appellant was unable to attend that scheduled meeting.

A second letter issued to the Appellant on 13^thNovember 2015 inviting him to an investigation meeting on 17^thNovember 2015. Enclosed with that letter was a copy of the written statement made by the guest which gave rise to the investigation. That investigation meeting was carried out by Ms CF accompanied by Ms SW, both of whom were HR officials with the Respondent.

A second investigation meeting was held on 24^thNovember 2015 again chaired by Ms CF. At that meeting the Respondent confirmed that the investigation process was concluded and that the matter would then proceed to a disciplinary hearing.

A disciplinary hearing took place on 26^thNovember which was chaired by Ms LL, Financial Controller for the Respondent accompanied by Mr SR.

By letter dated 9^thDecember 2015 the Appellant was invited to a disciplinary outcome meeting with Ms LL which took place on 10^thDecember. At that meeting the Appellant was informed that he was to be dismissed for gross misconduct with immediate effect. A letter issued to the Appellant on that date advising him that

‘due to the nature of the allegations against you, all of which you accepted to be true, the company was left in a position where the bond of trust between the employer and the employee had been completely destroyed, rendering your position with the company untenable’

That letter also advised the Appellant of his right of appeal and the arrangements in place for the making of such an appeal.

An appeal hearing took place with Mr AS, Group Director on 14^thDecember 2015 following which the decision to dismiss the Appellant was upheld.

The Respondent submitted that a fair, transparent and thorough disciplinary process had been followed. The Respondent decided to dismiss the Appellant. That decision was proportionate and is what a reasonable employer in the same position and circumstance would have done.

Summary position of the Appellant

The Appellant had no record of ill discipline prior to the incident at issue in the within matter.

At no time during his employment was the Appellant provided with procedures regarding who could or could not be permitted to enter the security base and neither was he ever given verbal instructions or guidelines in that regard. In practice, non-security personnel and persons who were not members of staff were often permitted entry to the base.

On 30^thOctober into 31^stOctober the Appellant was stationed in the security base of the hotel which houses the screens that receive CCTV footage from the cameras placed throughout the premises. During the course of that shift a colleague security guard, Ms BO’N, informed him that a couple had been engaging in a sexual act in one of the restricted areas of the hotel. She said that she had explained to the couple that that the location was not an area to which guests had access and they had left.

The Appellant later noticed a guest in a very intoxicated state and learned it was the female guest who had been involved in the incident described by Ms BO’N. At the end of his shift on the morning of 31^stOctober he left the premises.

The Appellant next reported for work on the evening of 31^stOctober. When he reported to the security base his direct supervisor, Mr MH, showed him CCTV footage which depicted a couple engaged in a sexual act on a corridor. He identified the female guest as the lady he had seen in an intoxicated state the previous morning. He was a little concerned by what he saw because it seemed that the parties involved, especially the female, were inebriated.

When clearing the lounge in the early hours of the following morning he began speaking to two female guests who were seated in the bar area, one of whom he immediately recognised as the female guest he had seen on the CCTV footage. He asked her if she had any memory of the night before and where she had been or what she had been doing. When he indicated that he had CCTV footage of the guest in a compromising position she asked to see that footage.

The Appellant was worried for the guest and when she asked to see the footage he agreed.

When he arrived at the security base with the guests the door was locked and Mr MH allowed them to enter. Mr MH then played the CCTV footage. Because of the guest’s behaviour and inappropriate comments the Appellant insisted that they leave the security base and return to the public area of the hotel which they did.

The Appellant was informed on 2^ndNovember that a complaint had been made against him and that he was being investigated for gross misconduct. He was not informed of the identity of the guest who had made the complaint against him and he was prohibited from making contact with that person.

Investigation meetings took place on 17^thand 24^thNovember 2015 and a disciplinary meeting took place on 26^thNovember 2015.

The Appellant was not given an opportunity to question any of the following people in relation to what had happened and their version of events:- His colleague BO’N regarding procedures in place and the practice regarding the entry of non-security personnel into the security base; MH regarding his decision to allow guests enter the security base, what happened on that occasion and what procedures, if any were in place regarding the entry of non-security personnel into the base; the guest in question regarding the events at issue; the person who received the complaint from the guest on 1^stNovember; a witness to that complaint being made or the security manager who dealt with that complaint on behalf of the security team on 1^stNovember 2015.

A further meeting took place on 10^thNovember 2015 at which the Appellant was advised that he was being dismissed with immediate effect for inappropriate behaviour towards a hotel guest and flagrant disregard for hotel procedures.

An appeal hearing took place on 14^thDecember 2015 and on 22^ndDecember he was advised that the decision to dismiss was upheld.

No disciplinary action was taken against Mr MH who permitted the guests to enter the security base and who was the Appellant’s direct supervisor.

The Appellant submitted that there was insufficient evidence available for the Respondent to dismiss him. The dismissal was procedurally unfair because he was not given an opportunity to test his accuser’s version of events and he was not given an opportunity to question his colleagues over procedures in place regarding entry to the security base. He was told at the end of the investigation meeting that there was to be a disciplinary meeting and this indicated that the investigator had already made the decision that the matter should proceed to the disciplinary stage and thus the whole procedure was biased. The sanction was disproportionate and Mr MH, the Appellant’s supervisor, was treated differently to the Appellant.

Summarytestimony on behalf of the Respondent

Mr JO’F – Acting general manager

Mr O’F stated that he was made aware on 2^ndNovember by the events organiser that a serious allegation had been made against a security staff member.

He stated that he made a call to the client who shared his understanding of the matter based on the account that person had received from the guest.

He stated that he spoke on the phone to the Guest making the allegation on 3^rdNovember. During that phone call she recounted that she had been approached by a member of the security staff of the hotel, had been invited to the CCTV room and there subjected to offensive and inappropriate language and that several sexual remarks were had been made towards her and the female who had accompanied her.

He stated that he asked the guest to provide a written statement which she subsequently did.

He said that the head of security is the staff member responsible for security matters. He said that access to the security base is restricted and such restrictions are contained in the security SOP’s and are on notice on the wall of the security base.

Under cross examination he confirmed that there was no evidence that the Appellant had actually seen the SOP’s or the notice on the wall of the security base. He stated that it was commonplace for the Claimant not to sign documents when requested and consequently the hotel did not have a signed confirmation that the Claimant had seen the SOP’s.

He confirmed that he had personally seen the notice on the wall of the security base and that all staff had the SOP’s.

Ms CF – Acting HR Manager who carried out the investigation

Ms CF stated that she had taken a phone call from Mr JO’F on 2^ndNovember advising her that an event had occurred and that a staff member had been suspended.

She was appointed to carry out an investigation which she stated was confined to determining whether a disciplinary process should be initiated. She stated that she carried out all investigations when the need arose in the hotel.

She stated that an investigation meeting was held on 17^thNovember following an unsuccessful attempt to schedule an earlier date. In advance of the investigation meeting the Claimant was written to and advised of the allegations being investigated. That letter also confirmed his paid suspension and was accompanied by enclosures which were a copy of the complaint made by the guest; the statement of SD who received the complaint from the event organiser and the guest making the complaint; the statement of NS who was the receptionist on duty when the Guest indicated on 1^stNovember that she wanted to make a complaint and the statement of Ms BO’N who was the contract security guard who had encountered the guest on 31^stNovember. That letter also advised the Appellant that could be accompanied to the meeting by a witness who would be another member of staff of the hotel.

She stated that she established that BO’N did not report the event of 31^stOctober to the Appellant but reported it to the supervisor in the security base.

She stated that the Appellant always refused to sign any document he was given and that it was hard to secure his signature on the notes of the investigation meeting.

She stated that she concluded, having conducted her investigation, that it was appropriate that the matter would be referred to a disciplinary process. In coming to this conclusion she noted that the Appellant stated that he was concerned that a sexual assault had taken place but she considered the space in time between the incident and the claimant’s interaction with the guest as well as the fact that no incident report was completed by the Appellant. She stated that the Appellant had never disputed the facts of the case.

Under cross examination she stated that Mr GV had made the decision to suspend the Appellant. She stated that she offered the Appellant the opportunity to have a witness present at the investigation meeting and she stated that this was in accordance with the procedures of the hotel. She stated that she did not engage with the guest as she did not consider it appropriate to question a hotel guest who was already distressed.

In response to questions from the Court CF stated that Mr MH was under investigation by her at the same time as she carried out the investigation of the Appellant. She stated that she did not take a statement from Mr MH as part of the Appellant’s investigation but that she was aware of his perspective on events as she was carrying out both investigations at the same time.

She stated that the Appellant agreed that he had approached the guest and had brought her to the security base.

She stated that the purpose of her investigation was to establish if there was a case to answer.

Ms LL, Financial Controller who carried out Disciplinary hearing.

Ms LL had been told by the Respondent that she was to conduct a disciplinary hearing following completion of an investigation.

She stated that she was advised that she was to consider two allegations

• • •That the Appellant had initiated a flagrantly inappropriate approach to a guest
  
  and,
  • 
    •That he had inappropriately brought a guest to the security base.

She stated that the Appellant had stated to her that he had concerns about a guest and acknowledged that he should have told a manager of his concerns.

She stated that she was satisfied that the Appellant was aware of the company’s SOP’s and that he was a holder of a PSA licence.

She stated that the Appellant had agreed that he had approached the guest and had brought her to the security base.

She stated that she engaged with Mr MH about these events in the context of another disciplinary process which she conducted at the same time but she did not share the information provided by Mr MH with the Appellant.

She stated that the option of demotion was not an option in terms of discipline. She stated that the decisive issue was a breach of trust. She stated that the fact that the Appellant breached security procedures was a significant issue.

She stated that the difference between the matter as it involved the Appellant and Mr MH was that Mr MH had not approached the guest whereas the Appellant had done so.

She stated that the Appellant chose not to be represented at the disciplinary hearing. He confirmed at that hearing that he offered a viewing of the CCTV footage to the guest.

She stated that the Appellant was not shown the procedures at issue during the disciplinary hearing and that she relied on the Appellant’s own knowledge of the procedures and his awareness of the notice on the wall in the security base.

She agreed that Mr MH was the Appellant’s supervisor on the night of the incident and that Mr MH gave permission for the Appellant to bring the guests into the security base.

Mr AS, Director of the Respondent company who conducted the appeal

Mr AS confirmed that the Appellant had appealed the decision to dismiss him on 11^thDecember by way of an e-mail to him – Mr AS. That mail also contained the Appellant’s grounds for appeal. He stated that he arranged an appeal meeting on 14^thNovember and that he arranged for a note-taker to be present. He stated that he did not offer the Appellant the opportunity to have a representative or witness present. He believed he may have advised the Appellant that he should attend the meeting on his own.

He stated that he invited the Appellant to say what he wanted to say and he worked through a couple of specific issues with the Appellant including his failure to make an incident report.

He stated that it was his understanding that the guest in question, having made her complaint, did not want further communications about the matter and that her friend similarly did not want further communications.

He stated that he dealt with appeals from Mr MH and the Appellant simultaneously and he was aware of the perspective of Mr MH while he was engaging with the Appellant.

He stated that he asked the Appellant about the hotel SOP’s and enquired into relevant matters.

He stated that the issue for him was a matter of trust. He also stated that the security role in the hotel is special and makes certain special demands upon security staff in terms of interaction with guests.

He stated that Mr MH did not dispute the basic facts of the matter during his appeal.

He stated that the Appellant failed to make an incident report at the end of his shift. He did not find the Appellant’s contention that his actions were motivated by a concern for the guest to be credible.

He stated that he took Mr MH’s account of events into consideration in coming to his conclusions but he did not share that account with the Appellant.

He stated that he did not look into allegations of lewd or offensive comment or behaviour.

He stated that he spoke to Ms LL as part of his appeal process and that it was Ms LL who advised him that security procedures were generally available to security staff in the hotel. He stated that he did not recollect that he told the Appellant that he had spoken to LL as part of the process of hearing the Appellant’s appeal. He confirmed that he had asked Ms LL a number of questions in the course of carrying out the appeal process.

He confirmed that he did not look at the security procedures in the course of conducting the appeal and in particular he did not look at security SOP’s.

He stated that he found the Appellant guilty of gross misconduct on the basis of a breach of trust.

In response to questions from the Court he confirmed that he had secured Ms LL’s responses to his questions before making a decision that the appeal had failed and he also had full knowledge of the account of Mr MH before making that decisions.

Summary testimony of the Appellant.

The Appellant stated that on the night of the incident he was in the security base when Ms BO’N came in and said there had been an incident.

He stated that Mr MH brought the CCTV of that incident to his attention when he came on duty on 31^stOctober and other people looked at it.

He stated that it appeared to him that the male involved in the incident was dragging out of the female guest and that what he was doing was malicious.

On that night / early morning he spoke to a number of people as he was clearing the bar and spoke to the female guest. He exchanged words with her and he asked her if she remembered last night. He advised her that he had concerns.

He stated that he radioed Mr MH and asked for permission to allow the guest to enter the security base and that was given.

He stated that he did not engage in offensive conduct.

The guest and her friend made rude remarks and he asked her to leave the security base.

He stated that he was never told in the course of the disciplinary or appeal process that he could be accompanied at hearings by a representative. He stated that he never knew the security SOP’s and had never seen the policy as regards access to the security base on the wall of the base.

He stated that he had asked for a copy of the CCTV of the guest and her male companion but he never received that.

Under cross examination he said that he was aware that there are procedures in existence in the hotel but that he does not know every procedure. He stated that he believed that there are procedures for everything in the hotel.

He stated that an incident report is normally written at the end of a shift or on the following shift. He stated that he completed no incident report on this matter because he had no chance to do a report.

He stated that he thinks he radioed Mr MH as regards access to the security base for two guests.

He stated that on the evening of 1^stNovember three or four other male colleagues had looked at the CCTV and had laughed while watching it.

In response to a question from the Court he stated that he should probably have reported the incident earlier.

Discussion and Conclusions.

The basic facts of this matter are not in dispute. Ms BO’N reported an incident to the security base on the night of 31^stOctober / 1^stNovember. No action followed that report and no incident report was made by either the supervisor in the security base or the Appellant. The Appellant reported for duty the following night at 9.00pm and no incident report was made at that time as regards the events on the previous evening. At approximately 4.00am on the following morning the Appellant engaged with the female hotel guest and referred to events of the previous evening. The Appellant then brought the guest and a female friend to the security base where Mr MH was located. The security base was locked such that Mr MH was asked to open the door and allow the guests in which he did. The CCTV footage of the incident which occurred on the previous night was played to the guest and the female friend. At some point the two guests left the security base.

On the following day the guest made a complaint to the hotel and an investigation process was commenced. That process resulted in the initiation of a disciplinary process. The disciplinary process concerning the Appellant was conducted in parallel to a disciplinary process involving Mr MH. Albeit the same person conducted both processes no information was shared with the Appellant as regards the process involving Mr MH.

Following the disciplinary process a decision was made to dismiss the Appellant for (a) displaying inappropriate and offensive behaviour towards a guest in the hotel, and (b) flagrant disregard for the procedures within the hotel by allowing two guests of the hotel to enter the security base and to view CCTV footage.

The Court has heard conflicting evidence as regards the degree to which the Appellant was familiar with the security procedures in the hotel. The Court does not find it credible that a licenced security operative with nine years experience of working in the hotel was unaware of the security SOPs in place in the hotel. The Court therefore finds that the Appellant was aware of the security SOPs in place in the hotel.

The Court notes that the Appellant made no incident report as regards the incident involving the female guest. The Appellant has confirmed that he was familiar with the process for the making of an incident report. The Court also notes that the fact of the Appellant approaching the guest and referring to the incident in which she had been involved is not in dispute. Neither is the fact of the Appellant bringing the guest to the security base in dispute.

The Respondent has set out that an investigation process was undertaken which concluded that a disciplinary process should be undertaken. A separate disciplinary process was consequently undertaken. The Respondent has confirmed that the person conducting the disciplinary process was concurrently undertaking such a process involving Mr MH. That person, Ms LL, has confirmed that she was aware of the account of Mr MH as regards the incidents giving rise to the disciplinary process involving the Appellant. She confirmed that she did not make the Appellant aware of the account of Mr MH, thus depriving him of the opportunity to challenge or address that account.

The disciplinary process resulted in a decision to dismiss. The Appellant appealed that decision to Mr AS. Mr AS has confirmed that in advance of meeting the Appellant he discussed the matter with Ms LL and asked her a range of questions. Mr AS did not make the Appellant aware that he had engaged with Ms LL prior to engaging with the Appellant and neither did he advise the Appellant of the views expressed by Ms LL to him, thus depriving him of the capacity to address the information upon which Mr AS was to rely upon in reaching his decision. Mr AS has stated in evidence that, although a breach of security procedures was one of the two grounds for dismissal, he was not familiar with those procedures. He also confirmed that his belief that such procedures were generally available to security staff was derived from his questioning of Ms LL rather than any independent inquiry conducted by him.

Mr AS stated in evidence that the primary basis for his rejection of the appeal of the Appellant was the Appellant’s inappropriate interaction with a guest.

The Court concludes that the fact of Ms LL conducting two overlapping disciplinary processes at the same time and more importantly failing to share her knowledge of the account of Mr MH with the Appellant is a failing of process.

The Court further concludes that the interaction between Mr AS and Ms LL as part of his conduct of an appeal and his failure to make the Appellant aware of that interaction or its content is also a failing of process insofar as MR AS appears to have relied on that interaction at least in part in coming to his conclusions as regards the appeal. The fact that Mr AS made no independent enquiry as to the procedures which the Appellant was alleged to have breached or as regards the availability of those procedures to staff is also concerning. In addition, notwithstanding that the decision to dismiss the Appellant was based on two grounds, the fact that Mr AS did not appear to place weight of procedural matters when coming to his decision is difficult to understand.

In all the circumstances the Court finds that the dismissal of the Appellant was procedurally unfair.

The Court has received submissions as regards the Appellant’s earnings at the time of his dismissal, his loss arising from his dismissal and and his efforts to mitigate those losses. The Court has taken account of the losses suffered by the Appellant arising from his dismissal. The Court has also taken into account, as it is required to do by section 7(2)(b) of the Act, the extent to which the Appellant’s conduct contributed to the loss that he suffered. In that regard, the Court is satisfied that the Claimant, by his conduct, contributed to a significant degree to his dismissal and this has been taken into account in measuring the quantum of compensation that should be awarded.

Determination

The Court finds that the complaint is well founded, that the dismissal was unfair and that the Appellant, through his conduct, was 80% responsible for his dismissal. The Court orders the Respondent to pay the Appellant compensation in the amount of €6,000.

The decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
LS______________________
15 March 2018Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.