Complainant

Respondent

Anonymised Parties

Security Guard

Security personnel provider

Representatives

David Nohilly of Larkin Tynan Nohilly Solicitors

Catherine O’Brien – HR Manager

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-00016876-001

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016876-002

17/01/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00016876-003

17/01/2018

The Complainant claims that his dismissal from his position of Security Officer with the Respondent company was unfair having regard, in particular, to the procedures adopted.

The Complainant gave his own evidence and was represented by his Solicitor who made oral and written submission on his behalf. I received communication post hearing in the form of information setting out the Complainant’s losses and the efforts he has made to find employment. I confirm that I have considered these documents in coming to a final decision.

The Respondent was represented by its own Human Resource Manager and made the case that having regard to all the circumstances, the Respondent’s dismissal was reasonable. The Complainant had failed in his duty of care and had failed to carry out his function. Post-hearing I received some additional documentation from the Respondent purporting to clarify certain matters. I considered these documents and confirm that they had no impact on the decision made.

I have carefully considered the evidence adduced in this matter. The Complainant has worked with the Respondent Security company for nine years. The Complainant’s disciplinary history is without incident. The Complainant’s employment consisted of three weekly thirteen-hour shifts and he was assigned to one of the employer’s larger sites, a Hospital in Dublin.

The Complainant had a body camera attached to his uniform. A discreet camera to be used primarily for the purpose of providing protection to the user. I accept that, similar to the use of wall mounted Cameras, usage of the body cam has to be notified. The individual user of any such camera is bound to notify persons in his/her vicinity that the camera is in use. I understand that the body camera is generally switched off and should only be brought to the “on” position following a warning and for the express purpose of recording a particular incident or situation.

It is accepted that there is no exact guidance on what should be filmed and what should not.   The Data Protection Commissioner has recommended that such mobile CCTV devices should only be activated in response to specific defined criteria. The Employer herein has not explored or attempted to articulate what is expected of employees in this regard. Scenarios have not been defined or outlined. It seems that, since their introduction in 2013, the Employees have a discretion to decide when is and when is not an appropriate time to turn off and on the cameras.

I accept that in addition to the body cameras there is also the presence of extensive CCTV coverage in the public areas of the Hospital.

Not all employees are equipped with the body cams and it is a mark of his longevity and trustworthiness that the Complainant is amongst one of only five on the Hospital premises given the camera.

On or about the 13th of November 2017 the Complainant was called to an incident and in particular he and his fellow security colleagues were advised that there were drug addicts in one of the public toilets, shooting up. I am of the impression that this has happened in the past. Up to four of the guards converged on the Toilets in question. Three unidentified individuals were found in one of the cubicles and I am satisfied that they were indeed in the process of taking or using drugs and that there was a very real concern that there might be dirty needles in the environs.

Following protocol, the Complainant advised that he was switching his body camera on. I accept that the Complainant wanted to capture the situation in real time and to show that he and his colleagues were dealing with individuals that were carrying “sharpies” as he described them. It is common case that the Complainant pointed his chest high camera into the cubicle to show the presence of the needles and other paraphernalia.

The parties were in agreement on what was captured on the Body Cam footage and I accept that within seconds the incident got heated as the three from the toilets became belligerent about being moved on. The party of trespassers and the Security Guards moved to the door leading to the public corridor. A request was put in to call the Gardai. I accept that the footage shows that one of the Complainant’s colleagues physically hit one of the three interlopers. The Complainant was not at any time involved in a physical altercation. However, at just this point the Complainant turned off the recording device. The hit does not appear to have been in self-defence and this was not suggested to me. I heard nothing about provocation or otherwise.

Ultimately, the Complainant’s employer terminated the Complainant ‘s employment because the Employer found (in consequence of the Investigation and Disciplinary process) that the Complainant had turned off the camera on his person when it was more appropriate that it should be left on as it was a live recording of an extremely serious workplace incident.

How the employer got to the point of dismissal has been challenged by the Employee’s representative as having been seriously inadequate, unfair and not in accordance with best practices that should be expected of any company having a workforce of up to 600 and with a turn-over in the tens of millions.

Ms. OB on behalf of the company carefully led me through the Investigation, Disciplinary and Appeal stages which were completed within a month of the incident above described. Ms. OB herself conducted the Investigation which was conducted three days after the incident. The Complainant was specifically directed that he was not allowed to bring any representation with him to the first investigation meeting. This prohibition was made despite the fact that the meeting is clearly flagged as potentially leading to a full disciplinary process. Ms OB was not able to point out anywhere in the Disciplinary Guidelines which allowed for no representation/assistance of the Complainant at an investigation meeting. In fact, I have been told this “policy” has now changed.

In the course of the meetings, The Complainant put forward no excuse for turning off the CCTV camera on his shoulder at the point that he did. The Complainant has maintained that he did not get specific training on the issue, and his Employer has relied on the need for the employee to have some judgement on when is and is not the right time to keep the recording device on.

I would have to accept that the company employer herein was entitled to expect that the Complainant would not turn off the camera at the time that he did. Any objective consideration of the situation would have to find that the Complainant opted to turn off the camera at the point in time that his employer would most definitely want it left on. An assault was seemingly being perpetrated on a member of the public and the “best evidence” recording was unilaterally terminated. Only for the fact that there were wall mounted cameras in the vicinity, the full picture might never have been known to the employer. I accept the damage to reputation and the potential insurance fallout had to be a primary considerations for the Respondent company. A seemingly unprovoked assault had been perpetrated by a member of staff and the Complainant’s response was to protect the perpetrator.

I would not accept, however, that the seriousness of the incident would justify the adoption of a wholly inadequate disciplinary process.

The Complainant was not offered a translator. The Complainant was not allowed to be accompanied at the disciplinary meeting even though he specifically asked for this. The Complainant had no assistance at the investigation. The Disciplinary process was purportedly mounted in relation to an involvement in an altercation with an individual but the Complainant was ultimately let go for his use or misuse of the camera and/or his failure to carry out his duties. The dropping of one allegation for another was not satisfactorily explained. The Complainant was therefore defending a nebulous allegation. Mr. Walsh dismissed the Complainant for “gross negligence” and not gross misconduct. Gross negligence does not normally form part of a disciplinary allegation. The Respondent relied on the Standard Operating Guideline without being able to point to specific breaches of same.

There was never any clarity as to what the Complainant was being accused of. The process was rushed. The Complainant was never shown any of his colleagues’ statements. The notes taken are most unsatisfactory and generally illegible (they were indecipherable at the WRC hearing) and the meetings were conducted in such a way so as to close the Complainant down.

On balance I find the procedures adopted by the company to have been wholly inadequate. A company of this size cannot reasonably justify the lack of fairness shown to the Complainant. The Complainant is therefore entitled to be awarded compensation under the Unfair Dismissals legislation.

I am however conscious of the fact that the Complainant’s own actions in an unfolding situation demonstrated a lack of judgement as to what he (as an employed security officer) should be expected to do. In turning off the recording camera, the Complainant failed his employer.

In awarding compensation, I must have due regard to these two opposing positions.

The Complainant made no case with respect to the two claims brought under the Organisation of Working Time Act 1997.

The Complainant’s claim under the Unfair Dismissals legislation succeeds and the Complainant is entitled to €6,500.00 compensation

I dismiss the two complaints brought under Organisation of Working Time Act 1997 as the Complainant adduced no evidence in connection with same.