UDD1936

This is an appeal on behalf of Q-Park Limited (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00013571, dated 8 November 2018) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer had found that Mr Tony Hallahan (‘the Complainant’) had been unfairly dismissed from his employment by the Respondent in September 2017 and awarded him compensation of €7,050.00. The Respondent’s Notice of Appeal was received by the Court on 27 November 2018. The Court heard the appeal in Cork on 27 June 2019 in the course of which it took evidence from the Complainant, and from Mr Daragh Fitzgerald and Mr Mark Howard for the Respondent. Mr Fitzgerald had conducted the investigation stage of the disciplinary process that culminated in the Respondent’s decision to dismiss the Complainant. Mr Howard had conducted the appeal stage. The disciplinary stage was conducted by a Mr Mattie O’Grady, at that time a Regional Manager with the Respondent. He was not produced as a witness at the hearing of the appeal as he is no longer in the Respondent’s employment.

Complainant’s Employment with the Respondent

The Complainant was employed on a full-time basis as a Parking Host by the Respondent from 22 March 2004 until his summary dismissal for gross misconduct on 14 September 2017. His rate of pay was €470.00 gross per week.

The incident that triggered the disciplinary investigation into the Complainant’s conduct occurred on 16 July 2017 during his shift in the attendant’s office at the Q-Park carpark on Grand Parade in Cork. The four walls of the office, it appears, are made of toughened glass. The Complainant admits that he caused his office chair to crash into one of the toughened glass walls such that the wall was cracked from top to bottom. The Complainant made a routine telephone call to his line manager, Mr Fitzgerald, towards the end of his shift that day and, having dealt first with routine business matters, went to notify him that ‘a small bit of damage had been done to a window in the office that day’.

Evidence of Mr Daragh Fitzgerald

Mr Fitzgerald told the Court that when he subsequently viewed the damage it was obviously more extensive than the Complainant had initially led him to believe. He reviewed CCTV footage which captured the event that caused the damage. He, therefore, scheduled an investigation meeting to which he invited the Complainant. The Complainant failed to appear at the meeting which was scheduled to take place on 2 August 2017. A second meeting was arranged to take place on 11 August 2017. The Complainant attended at this meeting along with his Trade Union representative, Mr Noel Murphy of the IWU. Mr Fitzgerald played the CCTV recording of the incident of 16 July 2017 to the Complainant and his representative. The Complainant told him that he had experienced ‘a moment of frustration’ immediately prior to the incident and insisted that there had been no customers nearby at the time.

Mr Fitzgerald told the Court that he did not sense any remorse on the Complainant’s part in respect of the incident of 16 July 2017. He told the Court that the Complainant offered nothing by way of mitigating circumstances and did not offer to make recompense for the damage he had caused to the Respondent’s property. Taking all of the foregoing into account, the witness said he then made a recommendation to the Human Resources Department that the matter should move to the disciplinary stage.

Disciplinary Meeting and Decision to Dismiss

Mr Mattie O'Grady, then Regional Manager, conducted a disciplinary hearing on 1 September 2017 into the allegation of misconduct against the Complainant. The Complainant was again accompanied by Mr Murphy from the IWU at this meeting. Mr O'Grady issued his outcome letter on 14 September 2017 in which he stated, inter alia, the following:

• “Whilst I take on board the discussions that took place during the hearing, I cannot ignore the fact that your conduct amounts to gross misconduct. I considered issuing you with a Final Written Warning however, your behaviour in causing the damage to the window and your unrepentant conduct throughout this process has highlighted your lack of respect for the Company and its property. Consequently, I uphold the allegations and as a result I have made the decision to summarily dismiss you with immediate effect from today, 14^thSeptember 2017.”

• “I pushed the chair out of the way as it had got stuck on a bit of damaged flooring. I have admitted to this and have also admitted that it was done in a moment of frustration. However, to claim as you have that it was done with aggression is not correct. Any damage caused was purely accidental and I have already apologised for that. My behaviour was not aggressive nor was it my intention to cause wilful damage to any Company property as is alleged by the Company.”

Evidence of Mr Mark Howard

Mr Howard told the Court that he joined the Respondent in August 2017 as Country Director. He had twenty-five years’ prior experience in retail during which time he had conducted a number of disciplinaries and appeals. On joining the Respondent, he had been informed of the incident of 16 July 2017 and was aware that it was the subject of a disciplinary process. However, he had no prior knowledge of the Complainant although he may have been introduced to him when doing ‘a meet and greet’ of employees in the Cork area.

Mr Howard’s evidence is that he was provided with a copy of the notes taken at both the investigation meeting and at the disciplinary meeting. He told the Court that he was quite concerned about the seriousness of the decision taken to summarily dismiss the Complainant having regard to the latter’s age profile and he, therefore, approached the appeal process with a hope that a way could be found to reverse that decision. Mr Howard said he also viewed the CCTV footage of the incident and he visited the site of the incident in Cork. He told the Court the he was struck by the close proximity of the shattered glass to customers’ cars and the distance between the location of the attendant’s chair and the window – approximately four metres. He also said that he had noticed from the CCTV footage that the Complainant had been playing cards on his computer screen immediately prior to the incident.

The appeal meeting took place at the Maldron Hotel in Cork on 23 November 2017. The Complainant was again accompanied by Mr Murphy of the IWU. The Complainant indicated at the outset of the meeting that wished to be reinstated. However, it appeared to Mr Howard that neither the Complainant nor his representative had prepared for the appeal hearing. Mr Howard, therefore, facilitated a short adjournment. When the meeting resumed – he told the Court – both the Complainant and Mr Murphy focused exclusively on the severity of the sanction that had been imposed on the Complainant and appeared – in the witness’s opinion – to be preoccupied with trying to portray the Complainant’s behaviour of the 16^thof July as an act of frustration rather than aggression. Ultimately, the Complainant turned to Mr Howard and announced that he wouldn’t ever set foot in a Q-Park premises again.

Mr Howard told the Court he concluded that he had been presented with nothing at the appeal meeting that would have given him a basis to overturn the decision to dismiss the Complainant. The Complainant had not shown any remorse for his behaviour and had not offered anything by way of mitigation. Finally, Mr Howard confirmed that he believed that the disciplinary process had been conducted fairly throughout.

The Complainant’s Evidence

In his direct evidence, the Complainant told the Court that he had offered to make restitution for the broken glass and that he had never denied causing the damage. He gave evidence of very limited efforts at mitigating his financial loss. He told the Court he applied for about four jobs since his dismissal. He has been in receipt of illness benefit from the Department of Employment Affairs and Social Protection since July 2018.

Discussion and Decision

Having carefully considered the Parties’ submissions and the evidence adduced at the hearing, the Court finds that, in all the circumstances, the Respondent’s decision to dismiss the Complainant summarily in response to the events of 16 July 2017 was neither substantively nor procedurally unfair. The sanction was a proportionate one having regard to the seriousness of the incident itself and the Complainant’s subsequent and continuing lack of remorse for his behaviour. The decision of the Adjudication Officer is, accordingly, overturned.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
TH______________________
22nd July 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary.