ADJ-00016783

Complainant

Respondent

Anonymised Parties

A Groundsman/Caretaker

A Facility and Services Company

Representatives

Marie Murphy – Legal Representative

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-00021813-001

12/09/2018

The issues in contention concern an alleged Unfair Dismissal of a Caretaker/ Groundsman by a Facilities /Security Company

A Written Submission was made and supported by extensive Oral evidence.

The Complainant had been employed for some four years, without incident, as a Caretaker/Groundsman in a Third Level Educational Institution. On the 27th February 2018 he was informed that HR wanted to speak to him. At this meeting he was informed that it was alleged that on the 14th February 2018 various confectionary items had gone missing from the Student Union Offices – (abbreviated to SU for convenience). He had been observed in the SU offices that morning at 07.45 hrs. He was being investigated for (1) Theft from the SU of Confectionary, (2) Unauthorised access to the SU Offices and (3) Actions and Behaviours damaging to the bond of Trust between an employer and an employee.

The Complainant alleged that he was not given any evidence regarding the origin of the allegations against him. He admitted he had been in the SU office that morning (14th Feb) but this was perfectly normal and was a facility that was used by a wide range of staff to prepare hot breakfasts etc. He had not taken or stolen any confectionary as was alleged.

Following the Investigation Meeting the issue progressed to a Disciplinary Meeting on the 9th March 2018. The same allegations were made. The Complainant’s’ Legal Representative pointed to what she felt were numerous Procedural Unfairnesses in the processes and failing to observe both the Respondents’ Rule /Employee Handbook and accepted Statue Law as contained in both the Unfair Dismissals Act,1977 and SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary Procedures.

In particular there was failure to produce evidence and afford the Complainant an opportunity to challenge or question purported witnesses especially a lady who was the administrator (Ms XM) in the SU Office. Her evidence regarding how the SU office actually operated could have been critical. CCTV footage was referred to but was not viewed by the Disciplinary Hearing Chairman nor was it offered to the Complainant to view.

Following the Disciplinary Hearing the Complainant was dismissed by letter of the 3th March 2018. This was appealed, and an Appeal Hearing was held on the 12th April 2018.

The Complainant’s Legal Advisor stated 6 grounds of Appeal. It was maintained that the entire Process was completely tainted with Unfairness and Procedural flaws.

The Appeal was not successful, and the confirmation of the Dismissal Decision was made by letter of the 17th April 2018.  

In summary the Complainant maintained that the entire Process breached all rules of Fairness and was accordingly grievously Unfair.

Respondent correspondence was presented and supported by extensive Oral Evidence from three Managers.

The basic facts regarding dates of meetings etc are as stated in the Complainant’s submission.

The Complainant had not denied being in the SU Office on the 14th February without due cause or sanction and had admitted taking confectionary. This was an open admission of guilt. The Investigation and Disciplinary meetings had been conducted fairly and in keeping with proper procedures. The Investigation Officer had complied an unbiased report, the Disciplinary Chairman was a separate and very experienced Manager (Mr. XG) who had carefully weighed all the evidence and given a considered decision.

In oral evidence the Chairman of the Disciplinary Meeting, Mr. XG gave detailed evidence as to how he had carefully considered all matters and did not feel that he had left any relevant evidence outstanding. He was well used to conducting these types of meetings.

The Appeal Manager had done likewise and issued a very detailed Appeal Decision that addressed all the points made by the Complainant’s Legal representative. Again, he felt that no relevant evidence had been omitted.

The position of Groundsman/Caretaker was a High trust position. The essential and absolute Bond of Trust had been broken and a Dismissal was the only realistic option for any employer. It was proportionate decision that any employer in a similar situation would have taken and as such was not Unfair.

3:1   The Relevant Law, Natural Justice, SI 146 of 2000 and Legal precedents.

The key legislative provision is the Unfair Dismissals Act, 1977 which has to be taken with SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures.

Legal precedents are extensive in these types of cases and the guiding principles are those of Natural Justice. These are well set out in the now classic judgment of Justice Flood in In Frizelle v New Ross Credit Union Ltd, [1997] IEHC 137

Here Flood J. stated 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.”

Statutory instrument SI 146 of 2000 effectively translated this into a set of practical guidelines. Section 5 to 9 are quoted below for reference.

The considerable body of case law relevant to these types of cases is well set out in Redmond on Dismissal Law; 3rd Edition by D. Ryan, Bloomsbury Professional Ltd 2017.

It is also important to note that Tribunals or Adjudication Officers do not conduct re-investigation of cases and suggest alternative outcomes but rather look at the proceedings to ensure that Natural Justice has been observed.

Consideration is also given to the concept of the Band of Reasonableness -in other words what decision is it fair to assume a reasonable employer in a similar situation and industry would have made. The Tribunal or Adjudicator does not seek to lightly alter an employer decision.

However, and notwithstanding legal principles set out above it is also well recognised that all cases rest on their own facts and circumstances. I will now move to consider what evidence was presented

3:2       Consideration of the Evidence -both Oral and Written.

Certain key facts were clear from the start. The Complainant admitted being in the SU office on the morning of the 14th February. It was reasonably clear that the SU Office, more of a common area with smaller side offices, was used regularly by a variety of personnel in the early morning. This would not be uncommon in Third Level educational facilities.

While the Complainant, at first, admitted to taking Red Bull it was also clear that there was a considerable question as to whether a fairly laissez faire attitude seemed to apply to certain items of confectionery that had been supplied by manufactures for Student promotions. Again this would not be uncommon in Third level facilities.

The Complainant maintained that he had done nothing untoward in being in the SU office in the morning in question and that the Administrator (Ms. XM) had often given him items, free of charge, left over from Student Sales Promotions.

From a procedural, point of view and bearing in mind the requirements of Natural Justice I failed to see why Ms. XM had not been asked to give direct evidence (that the Complainant /Legal representative could cross examine) at the Investigation or Disciplinary hearing. It was accepted that the Respondent representatives may have had a conversation with her, but no records were provided of this. No evidence that might be relevant regarding the operation of the SU Office from Ms.XM’s superiors was in evidence.

While it is purely speculative at this stage it would certainly have been interesting for the Complainant’s Legal representative to get and cross examine Ms. XM’s take on events. It would certainly have thrown a lot of light on what was accepted or not accepted practice in regard to access to the SU Offices and the manufacture supplied promotion materials there.

The Disciplinary Hearing seemed to hinge on the complete acceptance by the Disciplinary Manager (Mr. XG) of Mr. XO’s Investigation report and the acceptance of the key facts and in particular the admissions by the Complainant to Mr. XO. The question of whether or not the CCTV should have been viewed by Mr. XG – (he stated that he had not as he trusted Mr. XO’s report) was also questionable. It was evidential material that, even if possibly largely irrelevant, should, in keeping with good procedures, have been made available to the Complainant and his Legal Advisor.

A further area of concern, purely from a Natural Justice point of view, was the issue that came out in the Oral Hearing, as to who had actually first initiated the allegations against the Complainant. It appeared that members of the End User College management may have been the initial instigators. A good period had elapsed between the 14th February (date of the alleged incident) and the first investigation meeting on the 27th February.

It was quite unclear who had been taking to whom from College to Respondent management during this period and certainly no evidence was presented to the Complainant as to who had made the first allegations that lead to the investigation. The Complainant’s Legal representative had no opportunity to question the makers of the initial allegations. Point 7 of SI 146 of 2000 quoted above is relevant here.

The Respondent Managers who gave evidence were clearly experienced and most competent Managers. Their version of events was quite credible, and it is also recognised that “reasonable probability” is the required standard of proof in an Employment context.

However, all Legal Precedents clearly indicate that where there are doubts as regards evidence being presented, cross examination of potentially relevant witnesses such as Ms. XM or the person in the College hierarchy who first alerted the Respondent to a possible problem, the rules of Natural Justice as stated by Justice Flood quoted above must be applied.

In this case I had to come to the view that the entire process of taking and following up on possible evidence and considering alternative possible versions of events was not taken to its proper conclusion. At the very least it might have allowed more consideration of the “proportionality” of the final penalty.

I have no doubt that corrections of the Procedural /Natural Justice shortcomings at an early stage in the process may well have been in the Respondent’s favour but in the absence of this I have to find the Dismissal Decision Unfair on procedural grounds.

Act

Complaint/Dispute Reference No.

Summary decision /Please 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-00021813-001

Claim for Unfair Dismissal is well founded and is upheld.

An award of €10,000 is made by way of redress to the Complainant.