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-00017088-001

25/01/2018

The Complainant commenced employment with the Respondent on 08/12/2008 and was dismissed on 04/10/2017 after the hospital hairdressing salon was broken into and a sum of money was stolen.

The Complainant was employed as a cleaner and on the date of his dismissal was being paid €1207.27 per fortnight. The Complainant’s working week was 35 hours.

The Complainant commenced employment as a member of the Cleaning Staff on 8th December 2008 on a part-time basis He was initially employed on a 30-hour contract and in November 2016 this was increased to a 35 hour per week contract. The Complainant’s contract of employment included Grievance and Disciplinary procedures.

Whilst on duty on Sunday 14th May 2017 the Complainant left his own work area to look for a colleague, the intention being that they would go for a smoke together. By his own admission, the Complainant was carrying a cleaning cloth and screwdriver with him. Whilst looking for his colleague the Complainant spotted some cobwebs on one of the CCTV cameras and rather than looking for the area cleaner decided he would clean the camera himself, in order to do this, he would have to use the screwdriver and also the cleaning cloth. Whilst carrying out this activity he caused the CCTV camera to move.

The hairdressing salon in the hospital was broken into the same day and a quantity of money was stolen.

On Wednesday 17th May the Complainant rang his manager and asked could he talk to him. The Complainant met with his manager and informed him that the camera was moved while he was cleaning cobwebs from the camera, it should be noted that this is not the Complainant’s work area. The Complainant informed the manager that he was worried about the entire incident because the hairdressers had been burgled over the weekend. The Complainant informed the manager that the moving of the camera took place at approximately 11.45am. The manager then informed the Resident Services Manager.

The Gardaí were informed and after inspection of the scene of the hairdressing area they could establish that the break in had been through the door and not the window. The Resident Services Manager examined the CCTV footage with the Gardaí.

On 22nd May the Complainant was asked to accompany his manager to a meeting in the HR Office. The Complainant was informed that he may be able to assist in the investigation of the robbery from the hairdressers and was suspended with pay whilst the investigation was being conducted.

The Complainant was sent the terms of reference for the investigation. The investigation team met with the Complainant on 13th June 2017, at all times throughout the interview the Complainant maintained that he did not enter the hairdressing salon.

On the balance of probability, the investigation found that the Complainant entered, and remained in, the hairdresser’s room on Sunday 14th May between 10.45 and 10.49am. While in the hairdresser’s room, the Complainant searched, found and stole the sum of €250 from a cash box and which was being held there by way of resident’s funds. In addition, the investigation found that the Complainant found and stole circa €100 being held in an envelope.

The investigation concluded that the Complainant’s actions constitute Serious Misconduct.

The Complainant was invited to a disciplinary meeting on 26th July 2017.The Complainant did not attend this meeting as he was unwell and furnished medical certificates to that effect. A disciplinary meeting took place on 3rd October 2017 and by letter dated 4th October 2017 he was dismissed from employment.

The version of events leading to the movement of the camera on Sunday 14th May are not in dispute and the Complainant is aware he moved the camera, he did not report this on the day as it was a Sunday and no management personnel were present. The Complainant made an attempt to move the security camera back to the original position but could not manage to do this.

It was the Complainant’s intention to report the incident on the Monday morning but he failed to do so as his 7-year-old son who is autistic was quite ill. The intention to report the incident went completely out of his head.

On Tuesday 16th May the Complainant, through work colleagues, heard that the hairdressers had been broken into and that the back window of the premises had been broken. On hearing this the Complainant immediately thought that he was going to be in trouble for not reporting and claims that he was now in a position where he did not know what to do. On arriving home on the Tuesday evening the Complainant spoke to his parents who advised him to go straight to his manager the following morning and report the incident. The Complainant reported the incident to his manager early on the Wednesday morning and it is claimed that his manager told him his actions were reasonable and informed the Complainant that he had heard nothing about this and suggested that he go about his normal duties.

On Thursday 18th May, again through work colleagues, the Complainant was informed that the CCTV footage from the previous weekend was being reviewed.

On Friday 19th May the Complainant received a phone call from a colleague who informed him that many people were talking about him as he was the person who had broken into the hairdressing salon. The Complainant’s union representative contacted him and asked was he the one who did it.

Later the same day the Complainant’s manager asked him to attend a meeting in the HR Department where he was informed that he “was a person of interest”. The Complainant was then suspended from work with pay pending the outcome of the investigation.

There was a level of investigation that I have referred to in the Respondent summary. The Complainant was arrested and questioned by the Gardaí and informed he would have to attend a court hearing. The criminal case failed for insufficient evidence.

The Complainant was invited to a disciplinary meeting on 26th July 2017.The Complainant did not attend this meeting as he was unwell and furnished medical certificates to that effect. A disciplinary meeting took place on 3rd October 2017 and by letter dated 4th October 2017 he was dismissed from employment.

Since this incident, the Complainant has been suffering from depression and anxiety and this has damaged his relationship with his son. The Complainant feels that this is all due to the false accusations made.

In the case before the Employment Appeals Tribunal – Looney & Co Limited v Looney (UD 843/1984) the EAT summarised as follows:

‘It is not for the EAT to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged’.

My duty in this case is to look at the actions of the Respondent and ask are these the actions of a reasonable and fair employer. This matter has already been investigated, a decision to dismiss was made and the Complainant was offered the right to appeal.

In relation to the investigation, this was conducted by an independent person who in the first instance drew up terms of reference for the investigation, when this step was completed these terms of reference were shared with the Complainant.

After the Complainant was interviewed as part of the investigation he was sent a draft summary of the notes taken and provided with the opportunity to make any changes he may have thought necessary. The Complainant suggested a few changes and these were made.

The disciplinary interview was conducted in line with the Respondent’s policies and procedures and at every step of the process the Complainant was afforded the right of representation.

At the hearing in the WRC the Complainant asked the question of how he could have been found guilty of the offence and dismissed by his employer and yet in a court of law the case was dismissed.

I explained to the Complainant that in any criminal case guilt must be proven beyond a reasonable doubt whereas in a workplace the employer may make a decision or come to a conclusion on the balance of probabilities.

The Complainant asked could he read an impact statement to the hearing, this was permitted and in this statement the Complainant outlined, in moving terms, how this had affected him and the relationship he has with his son and family.

I have considered the evidence produced at the hearing and the written submissions presented.

I believe the Respondent in this case has acted in a manner that any good and fair employer would have acted in.

The process followed by the Respondent is very much in line with the policies and procedures as presented and I am unable to find fault with this process.

For these reasons, I believe the complaint is not well found, the Complainant was not unfairly dismissed and for these reasons the complaint must fail.

For the reasons outlined above, the complaint fails.

Unfair Dismissal.