FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : OCS ONE COMPLETE SOLUTION LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - WOJCIECH HURKO (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr Hall |
1. Appeal of Adjudication Officer Decision No. ADJ-00010618.
BACKGROUND:
2. The Claimant appealed the Decision of the Adjudication Officer to the Labour Court in accordance with Section 8A of the Unfair Dismissals Acts, 1977 to 2015. A Labour Court hearing took place on 27 March 2019. The following is the Determination of the Court:
DETERMINATION:
This is an appeal against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (the Acts) by Mr Wojciech Hurko concerning his dismissal for gross misconduct by his former employer, OCS One Complete Solutions Ltd.
By decision dated 1stAugust 2018, the Adjudication Officer held that the complaint of unfair dismissal was not well founded.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Wojciech Hurko will be referred to as “the Complainant” and OCS One Complete Solutions Ltd will be referred to as “the Respondent”.
The Complainant referred his case to the Workplace Relations Commission on 19thSeptember 2017. The Adjudication Officer issued his Decision on 1stAugust 2018. The appeal came before the Court on 27thMarch 2019.
Background
The Respondent is a property support services company operating throughout Ireland. It operates in the cleaning, security, consumable products and aviation industries.
The Complainant commenced his employment in January 2010. He was employed as a General Operative in the Respondent’s Aviation Appearance division on a 40-hour week earning an annual salary of €22,880. His principle duties were that of cleaning and re-stocking aircraft and security checking aircraft for the Respondent’s client organisations.
The Complainant was dismissed for gross misconduct with effect from 9thAugust 2017 in connection with events occurring on 6thJune 2017. It was alleged by the Respondent that on that date the Complainant had, in the course of his cleaning duties on a particular aircraft that day, found an iPhone 7 mobile phone belonging to a passenger which had been unintentionally left behind. The Complainant did not report the find and he did not pass over the item to management but had placed the mobile phone in the pocket of his company-provided fleece jacket/jumper and took it home with him after he had finished his shift.
On or about 7thJune 2017 the Complainant was visited at his home by two people on behalf of the owner of the phone who had remotely tracked the phone to that location. Following a brief verbal exchange the Complainant retrieved the phone from his house and turned it over to the two people.
The Respondent was notified by its client organisation of the matter after it had received an email of complaint from the passenger who lost his phone. That email was dated 14thJune 2017. In the immediate aftermath of the events of 6thJune the Complainant had been on a period of annual leave during which he had got married in another jurisdiction. The Respondent addressed matters with him on his return and he was suspended with pay pending investigation on 10thJuly 2017.
The letter of suspension stated as follows:-
- “It is alleged that on Tuesday 6thJune 2017 whilst undertaking your duties within the Aircraft Appearance Division, you removed without authorisation from the Airport, property (iPhone 7), which belonged to and had been left behind by a passenger. You failed to follow procedure by removing this Phone from the Airport without authorisation and failed to advise your manager that you had found a phone.”
Following a disciplinary investigation meeting on 28thJuly 2017 the matter was referred to a disciplinary hearing. The disciplinary hearing took place on 31stJuly 2017. Following this meeting the Complainant was informed of his summary dismissal with effect from 9thAugust 2017. An internal appeal hearing took place on 24thAugust 2017 and by written decision dated 8thSeptember 2017 the Complainant was informed that his appeal had been unsuccessful. The Complainant was represented at all meetings throughout the disciplinary process by his SIPTU full-time trade union official.
Ms Niamh Ní Cheallaigh, Ibec, on behalf of the Respondent, submitted that the Complainant was fairly dismissed for gross misconduct following a full and fair disciplinary process in which he was afforded all fair procedures rights. The Respondent fairly concluded that the Complainant’s failure to observe known procedures with regard to the handling of a client’s passenger’s property amounted to gross misconduct leading to fundamental breach of trust, resulting in dismissal.
Mr. Paul Henry, SIPTU, told the Court that it was his member’s case that the dismissal was procedurally flawed and that key aspects of fair procedures had not been observed, particularly with regard to the absence of witness interviews and a statement of complaint which was not provided in advance to the Complainant. Mr. Henry further stated that the Respondent’s decision to dismiss was disproportionate and unreasonable having regard to all the circumstances and that options short of dismissal were open to the Respondent and should have been availed of.
Evidence of Mr. Barry Kenna, Operations Manager
This witness told the Court that he conducted the investigation meeting with the Complainant. He said he had previously conducted disciplinary processes. He said that he had been briefed on the matter at hand by HR verbally in advance. He told the Court that the Complainant admitted that he had found the phone and that he had taken it home. He said that the Complainant agreed that he was an experienced worker and was aware of the procedures to be followed in the case of items left behind on a plane, had followed them in the past but that on this occasion he had forgotten he had the phone. His trade union representative asked that it be taken in to account that he was somewhat distracted and preoccupied with his forthcoming nuptials. The witness told the Court that he did not have a copy of the statement of complaint made by the owner of the mobile phone and no statements from any witnesses were produced at the meeting. The witness confirmed that he had decided to refer the matter on for a disciplinary hearing based on the admissions by the Complainant that he had taken the phone and had not followed the relevant procedures.
Evidence of Mr. Lukasz Broda, Operations Manager
The witness told the Court that he had conducted the disciplinary hearing. He said he was experienced in disciplinary processes. He told the Court that HR handed him the statement of complaint from the owner of the phone just before he was going in to the meeting. He said that the content of the statement was referred to at the meeting but that the statement became a matter of some controversy as it had not previously been seen by the Complainant. He said that the Complainant admitted taking the phone home and not following the procedures that he knew he should have. He said he asked the Complainant why he did not report the find and the Complainant replied that he forgot he had the phone. The witness told the Court that he found that difficult to understand given that the phone was not a physically small item in the context of an item sitting in one’s pocket, he believed the Complainant would have been aware that he had it. He said that he was of the opinion that the Complainant would have noticed the phone when he was finishing up his shift and returning his equipment. He added that the Complainant had seven years’ experience, had acted up as a supervisor on occasion and was fully familiar with the procedures.
The witness said that the Complainant said that his wife had found the phone in his fleece pocket on the following day but that he (the witness) could not understand why that did not lead to him reporting the matter to the Respondent. He said that he decided to dismiss the Complainant for failing to follow the applicable procedures and that in doing so he relied on the Complainant’s admissions at the hearing and not on the statement of complaint made by the owner of the phone. He said he did consider alternatives to dismissal, but he felt the Complainant’s actions were too serious and he could no longer be trusted by the Respondent.
Evidence of the Complainant
The Complainant told the Court on 6thJune 2017 he was cleaning as usual and was on his final aircraft for his shift. He discovered the phone in a seat compartment and put it in his fleece pocket where he keeps his cleaning cloths and gloves. He said that he went home straight away after his shift finished and he doesn’t know how he forgot he had the phone. He said that he normally takes his cloths and gloves out of his fleece pocket at the end of the shift but doesn’t know why he didn’t do that on this occasion. He was then going to be on annual leave and was getting married. He said that the next day he was on his way to do shopping with his wife and she said to him that she had found the phone in his fleece pocket as she was about to put it in for washing. He said that he then intended to report to the Respondent that he had the phone when he got home. When he got home he was confronted by the two people who were there on the phone owner’s behalf. He retrieved the phone in his house and returned it to them. He says that he did not inform the Respondent himself at that stage as he was concerned that he might lose his job. The Complainant agreed that he was experienced and was aware of the procedures to be followed when forgotten items are discovered. He said that he had found numerous items over the years including mobile phones. He agreed that he had followed the procedures in the past in relation to other finds.
The Complainant told the Court that he started an alternative job on 19thMarch 2019. He said that he handed CV’s in to shops and other business premises. He registered with Indeed.ie and with his local job centre which resulted in him doing some courses. The Complainant was unable to say how many jobs he had applied for. He told the Court that he turned down some job offers due to insufficient salary.
Discussion & Decision
The fact of dismissal was not in dispute, therefore, there is a statutory presumption that the dismissal was unfair unless there were substantial grounds justifying it. The Respondent’s case is that the Complainant’s dismissal for gross misconduct was justified on the basis of the arguments put forward as cited above.
In determining whether a decision to dismiss was fair or unfair the Court must examine whether or not there were substantial grounds justifying the dismissal and whether the process through which the decision was arrived at was fair and reasonable having regard to all of the circumstances.
The Court notes that a statement of complaint was received from the owner of the mobile phone on 14thJune 2017. This was some 5 weeks prior to the disciplinary investigation meeting with the Complainant, which included the Complainant’s period of annual leave. It is common case that this statement was not given to the manager conducting the disciplinary investigation nor was it given to the Complainant before, at or after the disciplinary investigation meeting. It is also common case that the statement was not provided to the Complainant in advance of the disciplinary hearing and the Court was told the manager who conducted the disciplinary hearing received it one minute prior to that meeting. That manager told the Court that the statement was not relevant to his decision to dismiss the Complainant.
It is a basic tenet of fair procedures in the context of disciplinary proceedings that any and all evidence/documents/statements that may have a bearing on the matter in hand must be shared with the person who is the subject of the proceedings.
The evidence before the Court from the Respondent in the within case is that, in the face of the admissions made by the Complainant, the statement in issue was not ultimately taken into account in the decision to dismiss.
The fair procedures obligations owed to a person cannot be discharged by reference to what the decision ultimately is purported to be based upon. The fact is that in this case the statement in issue could have had a material bearing on the outcome, hence the requirement that it be shared in advance so as to afford an informed response on behalf of the Complainant. Indeed, the Court notes that, albeit briefly, some of the content of the statement was referred to by the disciplining manager in the disciplinary hearing. The fact that the statement apparently did not ultimately feature in the decision-maker’s decision process is, therefore, beside the point.
The Court is accordingly satisfied that the Respondent’s failure to provide the statement to the Complainant in advance was in breach of fair procedures.
Notwithstanding that the Complainant by his own admission failed to follow the applicable procedures and therefore contributed substantially to the termination of his employment, for the foregoing reasons the Court finds that the dismissal is technically procedurally unfair.
Redress
The Court decides that neither reinstatement nor re-engagement are suitable remedies in this case having regard to all of the circumstances. The Court has also taken account of the Complainant’s preference for compensation as a remedy.
Having regard to both the Complainant’s substantial contribution to his dismissal and the efforts in mitigation made by him the Court measures appropriate compensation is this case to be the sum of €2,000.
Determination
The Court finds that the Complainant’s dismissal was procedurally unfair and accordingly orders the Respondent to pay to the Complainant compensation in the amount of €2,000.
The appeal, therefore, succeeds and the Adjudication Officer’s Decision is overturned accordingly.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
LS______________________
02 April 2019Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Louise Shally, Court Secretary.