ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020833
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | An Employer |
Complaint(s):
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-00027433-001 | 02/04/2019 |
Date of Adjudication Hearing: 16/09/2019
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance withSection 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint
Summary of Complainant’s Case:
The Complainant was dismissed from his position after investigation, for alleged misappropriation of lost property, item 250381. The outcome of the investigation, by letter dated 06/09/18, its allegations that The Complainant’s actions has led to a “serious breach of trust in the working relationship.” The investigation panel was chaired by Mr. DL Duty Manager and and Ms EK; HR Business Partner, recommended that a disciplinary meeting should be held. The conclusion reached by an investigator is a clear breach of duty. Where a question of unfair dismissal is in issue, in its judgement in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137, the High Court provided a list of ‘premises’ which must be established to support an employer’s decision to terminate employment for misconduct, being as follows: “1. The complaint must be a bona fide complaintunrelated to any other agenda of the Complainant,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. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered. 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.” The Union would contend that the statement “serious breach of trust in the working relationship” was a judgement by the investigation, which was not based on facts gathered, but on opinion and outside of fair investigation procedures and natural justice. Also, in the findings, under the heading LOGGING OF DETAILS, point 3, “Itis the finding of the investigation panel that you exercised extremely poor judgement in claiming monies which you were not entitled to claim. Indeed, your offer to return the monies speaks to the fact that you were and are aware your actions were not appropriate. Your actions have led to a serious breach of trust in the working relationship”. Again, the purpose of the investigation is to establish the facts of the case and not to make decisions or judgement. The Complainant was dismissed 27/11/2018, with notice of 8 weeks’ payment, was in lieu of notice. The disciplinary deciding officer was Mr YM, Head of Operations and MS YD HRBP. Paragraph 5, of the dismissal letter, states, “the company is of the view that this incident has led to a fundamental break-down in trust between the parties involved and, given the role that you hold as an Airport Police Officer this gives rise to thegravest of concern”. The Complainant appealed the decision of dismissal and the appeal was heard 11/01/2019 by Ms SK, Head of HSSE and Ms NR, HRBP. The appeal was not upheld. The Complainant has exhausted the internal process. The Union and the Complainant would contend the sanction of dismissal was disproportionate. The respondent had a suite of sanctions short of dismissal at their disposal. This was the first time The Complainant was subject to a disciplinary, in over 18 years of exemplary service. No policy or procedure was breached by the Complainant as none exists. It was recommended in the investigation report and accepted by the disciplinary panel that “clearly written policies and procedures are required”. The investigation did not adhere to existing collective policy or agreed procedures regarding investigation. The principles of S.I.146 of 2000, were not adhered to. The Complainant was unfairly dismissed and should be reinstated to his position. Background to Case The Complainant was unfairly dismissed on 27/11/2018. The complainant commenced employment with the Respondent on 4th of December 2000. The Complainant was employed as a Police Fire Service Officer. The complainant will tell us, on 24/01/2018 he was handed €250. The person who handed him this money chose not to submit it to the airport police station public office, due to time restraints. The Complainant submitted the money as lost property. The passenger did not leave the Complainant the required contact details for him to pass on. The person on duty in the office followed custom and practice and issued the Complainant with a docket with a corresponding reference number. The Complainant left the money for over three months and one day. As no one had come forward to claim the money, he did. As other officers have done so when property remained unclaimed. In fact, it was common practice to stake a claim on an item such as iPhone or camera, by merely saying if that item is not claimed I want it.
On 24th of May 2018, it is alleged a member of the public who claims to have found the money back in January 18, called to see if the money had been claimed. What happened after this call, has led to the Complainant being branded as untrustworthy and no longer employable. The Complainant was handed a letter on Saturday Morning the 26th of May 2018. The letter invited him to a “Formal Investigatory Meeting” this meeting was scheduled for Monday 28th May 2018, at 19:00 hours. The letter is signed Mr IP, Airport Police Duty Sergeant.
The Respondent Disciplinary Procedure at pg.10, Investigation point 1. Are you the appropriate manager to carry out the investigation? Mr. IP is not a manager. The Complainant was also called to a meeting outside of agreed timeframe, i.e. meetings will be between 09:00 a.m. and 17:00 p.m. Monday to Friday. It’s also worth noting on the evening of the 28/05/2018, The Complainant was in attendance with a fatality at 18:00 hours. No counselling or consideration was shown, he was still expected to attend the investigation meeting less than one hour later. The employer operates in conjunction with the VHI, an Employee Assistance Policy. At pg.6, of the document the section on Critical Incident Stress Management (CSIM) clearly set out the following. This service is available to staff who were exposed to critical or emergency at any of the three airports. The Complainant was not afforded an opportunity to avail of this service as he was due to attend a formal meeting in less than an hour after attending a fatality. The Complainant was distressed by this and not in the right frame of mind for a meeting. The Complainant attended the meeting under protest. During this meeting he was invited to sign a waiver to representation. The Complainant phoned his Union shop steward, Mr. NN. On advice The Complainant refused to sign the wavier and continued the meeting under protest. Prior to the meeting of 28/05/18, the Union shop steward tried to have the meeting adjourned to allow the Complainant to be represented by the person of his choice, this request was rejected by management. A decision was taken to suspend Mr. HS on 31/05/2018 via email. SIPTU Sector organiser Mr NM contacted Mr. NB on 01/06/2018 objecting to the personal assigned to investigate the “alleged misappropriation of money” Mr. NM SIPTU offered the name of a more qualified person in the respondent’s finance department. The objection was also due to prior involvement of both Ms. TH and Mr. DL in earlier decision-making meetings. The company replaced Ms. TH with Ms. EK but refused to replace Mr. DL
The Complainant was invited to a second investigation meeting 22/06/2018 at 08:30 a.m. This meeting took place on 28/06/2018. During this meeting, The Complainant explained he had offered to pay back the money on day one. The investigation officer viewed this as an admission of guilt and proof The Complainant knew the collecting of the money was wrong. Again, making a judgement of The Complainant’s intentions.
The Complainant was dismissed on 27/11/2018. The decision maker, Mr. YM Head of Operational QA & Campus, alleges dismissal was the appreciated sanction. The Complainant appealed his dismissal. The appeal was unsuccessful. The Complainant and SIPTU would contend dismissal to be disproportionate, for the following reasons. Ø The reason he was dismissed was unfair and disproportionate. Ø The alleged breach was not supported by any written policy. Ø The Complainants 18-year clear record was not taken into consideration Ø The investigation was unfair as the Complainant was not given the opportunity to cross examine witnesses who gave statements. Ø The lack of impartiality during the process, the respondent failed to ensure a fair process in all the circumstances. Ø Confidentiality was breached several times during the process.
The Complainant was found guilty from the get-go. The duty Sergeant in one of his statements wrote “I asked NR to talk some sense into him and catch himself on.” This statement is testament that Sergeant IP had already made his mind up on the matter. Further to this, during his interview of 25/07/2018, he confirmed he viewed this a very serious matter and needed to talk to the Complainant before he escalated the matter. It was during a conversation between Sgt. NR and Sgt. IP, that the complainant’s confidentiality was first breached. Ms EC overheard the conversation and took it upon herself to send a text to all the DM’s advising there was a serious incident that needed to be addressed due to potential liability issues for THE RESPONDENT. Ms. EC also spoke to DL and asked he raise this with a CAPO. The Union only became aware of the aforementioned, on 05/09/2018. When the Union objected to the investigation being concluded. The investigation team ignored this request. The outcome was issued to the complainant on 06/09/2018. The Complainant was then invited to a disciplinary hearing. Despite all the objections raised by the Union on the flaws, the unfairness of the process. The lack of impartiality of the investigation. The outcome of the disciplinary panel was dismissal. The Union reiterated its concerns on the lack of due process in this case. The appeal was heard and again the Complainant did not receive justice when the sanction of dismissal was upheld. The Complainant did not deserve to be dismissed. He was never in trouble before he received a commendation letter and was well liked by colleagues and supervisors. His dismissal ended his career of 18 years as a police officer. The Complainant never believed his collecting the money after the allocated time would led to him losing his job, he never would have collected otherwise. Dismissal was completely unfair. |
Summary of Respondent’s Case:
The Complainant commenced employment on 4 December 2000. The Complainant was employed as a Police Officer at an Airport. A copy of The Complainant’s Contract of Employment is at Appendix The Complainant’s employment was terminated on 27 November 2018. The Respondent submits that the complainant was not unfairly dismissed. The Complainant was dismissed by reason of his misconduct. The Respondent submits that the relationship of trust and confidence that must exist between an employee and an employer, and in particular the highest level of trust and confidence that the Respondent (and indeed the public) must hold in the integrity of an employee carrying out the role of a Police Officer, was destroyed as a result of The Complainant’s misconduct. Prior to The Complainant’s dismissal, The Respondent undertook a full disciplinary process, including an investigation, disciplinary hearing and appeal hearing in accordance with The Respondent’s Disciplinary Procedure. A copy of The Respondent’s Disciplinary Procedure is at Appendix 3. For the reasons set out below, The Respondent respectfully requests that the Adjudication Officer reject The Complainant’s complaint in its entirety. The Role of Airport Police Officer The Complainant, as a Police Officer (one of 68 in The Respondent’s 128 person Police Force), was involved in the provision of policing services at an Airport where it is self-evident that the integrity of policing, safety and security are of the utmost conceivable importance. Accordingly, The Complainant was not just an employee but an employee in whom the highest degree of trust and confidence was reposed due to the nature of his responsibilities. The Respondent considers this a critical point and will adduce further evidence to this effect at the hearing of the matter. However, by way of brief example, an Airport Police Officer has wide ranging statutory powers to stop, detain, search and arrest without warrant. All of these powers are bestowed in the interests of the proper operation, security and safety of the airport and the prevention of unlawful acts of interference to civil aviation. In order to achieve the above, Airport Police Officers must work very closely with a range of other law enforcement agencies including but not limited to An Garda Síochána (several branches and units), PSNI, Customs, Port Police, United States Customs and Border Patrol etc. In the course of their duty, Airport Police Officers routinely encounter people at their most vulnerable, people in distress, suffering trauma, injury, mental health issues, serious illness, depression, dementia, bereavement etc. Airport Police Officers deal with serious road traffic incidents, workplace accidents, fatalities and suicides. All Airport Police Officers are cardiac first responder trained, all eight police vehicles are equipped with defibrillators and they are frequently first at the scene for cardiac incidents. In the course of all of this, Airport Police Officers frequently have access to and take custody of, the most sensitive, private and personal information/property. This includes data such as CCTV, photographs and personal property (including found items). Airport Police Officers are required to operate without constant direct supervision and with a considerable degree of autonomy. Police Duty Managers and Sergeants must be confident that their Officers (such as The Complainant) will be trustworthy, report accurately and deal with situations with honesty and integrity. Perhaps most pertinent to the present case, in the normal course of their duties, an Airport Police Officer will be presented with a great many situations that could be manipulated for personal gain, therefore honesty and integrity are essential elements that go to the very heart of their role. As an Airport Police Officer, The Complainant was expected to be well versed in the procedures involving lost and found property. The Complainant was trained in relation to same. A copy of The Complainant’s training records and The Respondent’s written policies in relation to lost property are at Appendix 4. The Misconduct that Resulted in Dismissal The Respondent respectfully submits that the facts underlying The Complainant’s dismissal have, almost from the outset, not been in dispute. A summary of the primary facts are as follows: While on duty on 24 January 2018, a member of the public approached the complainant while he was on duty in uniform in Terminal 2. She gave him €250 in the form of five €50 notes (the “Cash”) that she had found on a bus in the vicinity of Terminal 2. The Complainant claims that he began to explain about the information available on the website and requested her contact details. The Complainant claims that the member of the public had no interest in this as she was rushing for her flight. The Complainant subsequently lodged the Cash in the Public Office of the Airport Police Station and was handed a docket by the person on duty. The Cash was lodged as Lost Property Ref: 2503819. The Cash should have been logged with accurate details both of whom it was “Reported By” and whom it was “Found By”. Those are two separate fields on the log. Clearly, The Complainant should have been recorded as the reporter of the Cash but should not have been recorded as the finder of the Cash. The Complainant failed to ensure that he was logged as the reporter only. Notwithstanding this, The Complainant permitted himself to be logged as both the reporter and the finder of the Cash. A screenshot of the log can be found at Appendix 5. On 25 April 2018, precisely three months and one day after the Cash was found, The Complainant returned and claimed the Cash as its finder, notwithstanding that he knew he was not its finder. The Complainant gave the docket to Ms NB (Airport Police Officer). Ms NR (Duty Sergeant) then entered the Public Office, retrieved the property, inspected the register and approved The Complainant’s claim. The Complainant remarked that this was “money off his holidays”. On 18 May 2018, Mr Jack ET (Airport Police Officer) received a phone call from the member of the public who had initially found the property. She enquired about whether the property had been claimed. In the course of looking into the enquiry, Mr ET noted that the property had been checked out by the Complainant. Mr ET forwarded this information to Mr IP (Duty Sergeant). Subsequently, Mr IP spoke to the Complainant on the evening of 18 May 2018 and asserted that The Complainant had no right to claim the property. Mr IP asked The Complainant to return the money. The Complainant refused to answer. The Investigation Process On 26 May 2018, the Complainant was given a letter by Mr IP informing him that the incident was now subject to an investigation, and inviting him to meet with Ms TH (HR Business Partner Security) and Mr IP (who would together investigate the matter) on 28 May 2018. A copy of this letter is at Appendix 6. On 26 May 2018, the Complainant’s representative, Mr NN wrote to Mr NB (Chief Airport Police Officer) on two occasions raising a number of issues in relation to Mr IP’s letter to The Complainant. Mr NB responded noting that Mr LP (Airport Police Duty Manager) was handling the investigation and so Mr LP would revert to Mr NN. A copy of this correspondence is at Appendix 7. On 28 May 2018, The Complainant attended a meeting with Ms TH and Mr LP(Airport Police Duty Manager). At the meeting, The Complainant was informed he had been suspended with full pay pending a full investigation. The Complainant received an email on 31 May 2018 that confirmed both his suspension and the investigation into the circumstances surrounding his claim to the Cash. On 31 May 2018, Mr LP (Airport Police Officer Duty Manager) wrote to the Complainant confirming the detail of the meeting held on 28 May 2018. In particular, Mr LP confirmed that: The Complainant had chosen not to be represented but then contacted a SIPTU Shop Steward Mr NN in the course of the meeting and stated that he was “attending under protest”; and the Complainant had been “suspended on full pay pending a formal investigation following an allegation of misappropriation that has been made against you in reference to lost property reference number 250381”. The Respondent submits that the suspension of The Complainant was entirely appropriate given the nature of his role and the fact that the allegations against The Complainant at their core involved questions of trust and confidence. A copy of this email is at Appendix 8. By the same email referred to above at Appendix 8, Mr LP further informed the complainant that: an investigation panel had been established comprised of Mr DL and Ms TH; and “[i]n line with company policy depending on the findings of this investigation, it may lead to disciplinary proceedings up to and including dismissal”. Between 1 June 2018 and 13 June 2018, The Complainant’s representative, Mr NM raised various objections to both members of the Investigation Panel (being Mr DL and Ms TH). The Respondent disagreed with all objections raised and retained Mr DL as a member of the Investigation Panel. Ms TH was however replaced by Ms EK (both members of the HR team) to avoid any perceived conflict of interest arising from Ms TH having attended a previous meeting. A copy of this correspondence is at Appendix 9. On 18 June 2018, the Investigation Panel emailed The Complainant inviting him to the Investigation Hearing. The Investigation Panel in particular stated that it related to the ongoing investigation “into an allegation of misappropriation that has been made against [The Complainant] in relation to an item of lost property”; it was enclosing five reports in connection with the matter under review that had been compiled by five named persons; “the outcome may, or may not” form the basis for a subsequent Disciplinary Hearing; he was entitled to be accompanied by a work colleague, staff representative or a Trade Union Official.A copy of the invite email to the investigation meeting is at Appendix 10. On 28 June 2018, the Investigation Hearing took place. In attendance at the meeting were The Complainant, Mr NN, Mr YH (SIPTU Workers Rights Centre Representative), Mr DL and Ms EK. The purpose of the meeting was to ascertain the facts surrounding the dispute relating to the Cash. Based on those facts, a decision would be made as to whether to refer the matter to a Disciplinary Hearing. The Investigation Hearing examined the following witness reports which had been provided to the Complainant in advance: MR IP, Ms NR, Mr ET, Ms NB, Mr TG. Over the course of the Investigation Hearing, The Complainant alleged that the policy regarding lost property as issued on The Respondent’s website was incorrect in that it stated lost property would be retained for 2 months and 1 day, whereas in fact it is retained for 3 months and 1 day. This point is entirely irrelevant and moot with regard to The Complainant’s dismissal given that he claimed the Cash precisely 3 months and 1 day after it was logged. A copy of the meeting notes from the Investigation Hearing (including additional input from the Complainant can be found at Appendix 11. Following the Investigation Hearing, Ms EK and Mr DL held a series of further meetings (between 24 July 2018 and 26 July 2018) with certain witnesses to address issues that had arisen over the course of the Investigation Hearing. They met with the following witnesses: Mr IP, Ms NR, Mr ET, Ms TH and Mr NB A copy of all witness reports, together with any meeting notes, follow up questions and relevant correspondence relating to any of the aforementioned witnesses can be found at Appendix 12. The Complainant’s First Grievance in relation to the Investigation Process: On 31 July 2018, Mr NG submitted a grievance on behalf of The Complainant which in particular made the following allegations concerning the investigation process: “the investigation has or is about to breach his rights in relation to fair procedures and specifically cross examination. In addition we are formally requesting that the investigation be placed on hold until such a time as this matter can be heard and determined by the company”. The Grievance Panel consisted of Mr SL (Head of Human Resources) and Mr NM (Head of Terminals Asset Care). The Grievance Panel heard evidence from the Complainant, Mr NG, Mr NN and Mr KC (Group HR). On 29 August 2018, the Panel concluded that: The Respondent had “not breached The Complainant’s right in relation to fair procedures and specifically in relation to direct access to cross examination of a witness”; The Respondent “facilitates the cross examination of witnesses by either side , but via the chair of the grievance panel and not directly on a face to face basis”; and “[w]ith a view to expediting the process given the particular circumstances of this case, the panel would recommend that the company facilitates as part of the investigation a process of “shuttle cross examination”. A copy of this decision and relevant documentation can be found at Appendix 13. The Complainant’s Request for Clarification on the Circumstances Surrounding the Investigation: In the course of the investigation process, the Complainant raised a concern surrounding the circumstances in which the investigation commenced. On 5 September 2018, Ms EK provided clarification on same on behalf of the Investigation Panel (herself and Mr DL). Ms EK provided a clear chronology of events concerning the commencement of the investigation. Ms EK confirmed that the “outcome of the Investigation Hearing will be finalised and issued to you under separate cover”. A copy of this correspondence is at Appendix 14. The Investigation Report On 6 September 2018, the Investigation Panel (Mr DL and Ms EK) notified The Complainant and his representatives by email that their investigation had concluded. The Investigation Panel provided The Complainant with a copy of their completed Investigation Report (a copy of which is at Appendix 15). The Investigation Report in particular found that: “all witnesses were clear in what occurred in relation to the incident”; The Complainant had completed training on the finding and logging of lost property; The Complainant had confirmed he was logged as the finder of the Cash, that he had not as a matter of fact found the Cash and that he nonetheless subsequently claimed the Cash; and The Complainant “exercised extremely poor judgment in claiming monies which [he was] not entitled to claim”. The Investigation Report concluded that “based on the above it is the finding of the Investigation Panel that a disciplinary hearing should be held”. The Complainant’s Second Grievance in relation to the Investigation Process On 11 September 2018, Mr NG (one of The Complainant’s SIPTU representatives) raised a grievance on behalf of The Complainant alleging that, for various reasons, the“investigation has not been carried out in a fair and transparent manner by Ms EK and Mr DL”. Mr KC (Group Head of Industrial Relations) assigned the investigation of same to Mr NH (Senior HR Manager - Employee Relations). Mr NH met with Mr NG and the Investigation Panel (Mr DL and Ms Kane) to investigate the grievance. On 3 October 2018, Mr NH provided the outcome of his investigation of the grievance. Mr NH concluded that: “I am now satisfied that I have concluded this piece of work, and while there are some procedural anomalies in the investigation process, they don’t amount to me reaching a position that I feel they (the anomalies) would have impacted the Investigation Panel decision. Therefore, I am of the belief that the determination of facts have not been prejudiced in this case. I would recommend that this process moves swiftly to the disciplinary hearing proposed by the Investigation Panel, and that the Disciplinary Panel can determine whether the points posed by Mr NG and Mr NN should be taken into consideration; should a disciplinary sanction be deemed appropriate in this case”. On 4 October 2018, Mr MC accordingly recommended that Human Resources proceed with the disciplinary process. A copy of the correspondence relating to The Complainant’s Second Grievance in relation to the Investigation Process is contained at Appendix 16. Disciplinary Process Ms YD wrote to the Complainant inviting him to a disciplinary hearing on 22 October 2018 on foot of the findings of the Investigation Report. The Complainant was informed of his right to be accompanied to the Disciplinary Hearing. A copy of the invite letter is at Appendix 17. On 22 October 2018, Mr YC(Head of Operational QA & Campus), accompanied by Ms YD (HR Business Partner), held the Disciplinary Hearing with The Complainant. Mr NG and Mr NN (both of SIPTU) were also in attendance accompanying The Complainant. A copy of the notes of the Disciplinary Hearing are at Appendix 18. On 15 November 2018, a follow-up meeting took place to ensure The Respondent possessed all information required to make a disciplinary decision. Mr YD, Mr YC, Ms Kane and Mr DL were in attendance. This was for the purpose of verifying matters. No new issue or fact came to light. If it had, Mr YC would have reverted to the Complainant in relation to same. A copy of the notes of the follow-up meeting can be found at Appendix 19. By letter dated 27 November 2018, Mr YC wrote to The Complainant to provide the outcome of the Disciplinary Hearing. Mr YC informed The Complainant that he was being dismissed from his employment with 8 weeks’ notice with effect from 27 November 2018. The Complainant was informed that he would be paid in lieu of notice. Mr YC emphasised that “careful consideration has now been given to all of the circumstances surrounding the matter”. Mr YC stated that he had “listened to what the Complainant and his union representatives had to say during the hearing and had examined all the evidence presented”. Mr YC also recounted the full process that had been followed in reaching this decision. In reaching his decision, Mr YC set out that : “this incident has led to a fundamental break-down in trust between the parties involved and, given the role that The Complainant as an Airport Police Officer this gives rise to the gravest of concern. Given the above, I deem that the appropriate sanction to be imposed is to discharge [The Complainant] from The Respondent.” Mr YC notified The Complainant of his right to appeal the dismissal. A copy of disciplinary outcome letter is at Appendix 20. Appeal Process By email dated 3 December 2018, The Complainant appealed the decision to dismiss him. The Complainant submitted the following as grounds for appeal: the decision to dismiss him paid no regard to his 18 years of service as a member of the Airport Police; the sanction of dismissal was excessive; no policy a member of the Airport Police; the sanction of dismissal was excessive; no policy existed which applied to the incident in question; The Complainant followed the established custom and practice in relation to such incidents; the investigation was flawed; and the Complainant acted in good faith and in a transparent manner throughout the investigation. A copy of this appeal email is at Appendix 21. By email dated 20 December 2018, Ms NG (HR Business Partner – Security, IT & North Runway Programme) wrote to The Complainant inviting him to an Appeal Hearing on 11 January 2019. Ms SK (Head of Safety, Security and Environment (HSSE) would hear the appeal with Ms NR to provide HR support. On 11 January 2019, Ms Kerins (accompanied by Ms NR) heard The Complainant’s appeal. The Appeal Hearing was also attended by The Complainant, Mr NN and Mr NG (the latter two both of SIPTU). At the Appeal Hearing, Mr NG put forward the complainant’s grounds for appeal. A copy of the invite to the appeal hearing and of the notes of the Appeal Hearing are at Appendix 22. On 30 January 2019, Ms SK issued the appeal decision letter to The Complainant. Ms SK stated that she had: “given very careful consideration to the information that was submitted by the complainant. She also reviewed all relevant information with regard to this case, in the context of the points raised by The Complainant in his written appeal and verbally at this meeting”. Ms SK found that the “the decision to dismiss discharge The Complainant from his employment was warranted given the seriousness of the incident in question, which the Respondent views as gross misconduct”. In reaching her decision, Mr SK stated that “it is imperative that staff conduct themselves in a professional manner and the Complainant’s behaviour and actions in this instance were inappropriate for a member of Airport Police”. Ms SK concluded that there had been a significant breach of trust on the part of the complainant in the employment relationship. This was a breach of such magnitude that it left the Respondent “with no alternative than to take this course of action”. Ms SK decision was to uphold the decision to dismiss The Complainant. A copy of the appeal decision letter is contained at Appendix 23. Although the appeal outcome notes The Complainant would not be paid in lieu of notice, he was in fact so paid. 11. Custom and Practice It bears emphasising that the custom and practice within The Respondent is firmly established as being that: if an Airport Police Officer finds lost property and such lost property is not claimed, the Airport Police Officer may claim same after the specified period of time elapses as he or she was its finder; however, if a member of the public provides an Airport Police Officer with lost property and such lost property is not claimed, the Airport Police Officer may never claim that property as its finder given that he or she was not its finder but its reporter only. core duty of a member of the Airport Police to be well versed in the procedures for lost property. It is further essential that Airport Police Officers uphold the highest obligations of duty and integrity which the role demands. The Respondent at all times applied fair procedures to the investigation, disciplinary and appeal stages. It is submitted that he Respondent's decision to dismiss Tt he Complainant was reasonable, proportionate and appropriate. For the reasons set out above, The Respondent respectfully requests that the Adjudication Officer reject The Complainant’s claim. |
Findings and Conclusions:
The complainant alleges he was unfairly dismissed from his employment on the 30th January, 2019 in relation to the misappropriation of €250.00 which the complainant wrongfully claimed from the lost property department. 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (b) the conduct of the employee,
On the 24th January, 2018 a member of the public approached the complainant and asked if he would hand in some money that she had found. She couldn’t do it as she was rushing for her flight. The complainant handed the money in. He was name as the “finder” on the slip. He came back three months and one day later to claim the money. It was open to the complainant to have the error naming him as the finder rectified, but he chose not to, thus wrongfully benefiting from the error. The actual finder of the money also called in to claim it. That is when the issue came to the respondent’s attention. The Respondent entity once on notice of the issue commenced an investigation. The complainant is a member of the Union and that Union where very much involved in the process from the outset. Their involvement was over and above what one would expect to see, particularly at the investigation stage. Lists of questions were sent to the investigating officer by the Union and correspondence followed on from that seeking clarity on some of the answers that were given to the questions raised by the Union. The Union also objected to the original investigation officers. The respondent took those objections on board and appointed two new investigation officers. The Union took issue with the conclusions reached in the investigation report specifically this statement: " Your actions have led to a serious breach of trust in the working relationship". I accept that that sentence is probably a step too far in an investigation report. However, I find that its inclusion is not enough, or nearly enough to taint the entire process. It is clear from the investigation report, that the investigation officers felt that the matter warranted moving to a disciplinary hearing. The matter was sent forward for a disciplinary hearing. The disciplinary officer also found that the Union wanted to deal with everything but what had happened on the 18th of May 2018. Evidence was given by the disciplinary officer who stated that he relied only on the facts that were before him and gave the complainant ample opportunity to explain why he had done what he did. I find that both the investigation and disciplinary process were fair, thorough and allowed the complainant ample opportunity to defend the allegation made against him. The complainant was unhappy with the decision to dismiss him, feeling that it was disproportionate. He availed of the opportunity to appeal that decision. At the appeal hearing he was again represented by his Union. It was evident from the documentation and correspondence submitted that the complainant’s Union representatives tried to micromanage and/or derail the entire process. It was a process that was not theirs to manage. That attempt to micromanage the process was evidenced during the hearing also. I find that the unions approach to the process was an attempt to avoid the issue of the misappropriation by raising multiple issues most of which were not relevant to the subject matter of the actual allegation. It was abundantly clear, in contradiction of the complainant’s statement that the custom and practice allowed him to claim the money, that only the finder or the owner of the funds can legitimately claim the money handed into lost and found. He was neither the finder nor the owner. All of the witnesses called by the respondent and by the complainant, save for the complainant’s Union representatives, stated that it was not the custom and practice to put yourself down as the finder if you were handing in the money on someone else’s behalf and it was most certainly not the custom and practice to claim it after the three months and one day had elapsed. They also stated that it was a serious breach of trust. Even the complainant’s representative stated that she accepted that what the complainant did was “an error in judgement”. It not for me to judge the complainant’s actions. My role is to determine whether in all of the circumstances the respondent’s decision to dismiss the complainant was within the band of reasonableness. The respondent stated that due to the fact that the complainant’s actions had broken the essential element of trust, that they had no option but to terminate his employment. I accept that trust is a crucial and essential element of the complainant’s working relationship with the respondent. The respondent’s finding that due to the complainant’s actions, that essential element no longer existed between them and based on that, they had no option but to terminate his employment is well within the band of reasonableness. Similar to the findings, in relation to both the grievances raised by the complainant in relation to the process, I find that the investigation and disciplinary processes were fair and transparent and at no point was the complainant prejudiced or his right to a fair process compromised. In all of the circumstances I find that the complaint is not well founded and accordingly fails.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The complaint fails. |
Dated: 08/10/19
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words:
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ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020833
Parties:
| Complainant | Respondent |
Parties | Stephen Smith | Dublin Airport Authority PLC The Respondent |
| Complainant | Respondent |
Anonymised Parties | An Employee | An Employer |
Representatives | Bernadette Thornton SIPTU | Séamus Given Arthur Cox |
Complaint(s):
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-00027433-001 | 02/04/2019 |
Date of Adjudication Hearing: 16/09/2019
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance withSection 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint
Summary of Complainant’s Case:
The Complainant was dismissed from his position after investigation, for alleged misappropriation of lost property, item 250381. The outcome of the investigation, by letter dated 06/09/18, its allegations that The Complainant’s actions has led to a “serious breach of trust in the working relationship.” The investigation panel was chaired by Mr. DL Duty Manager and and Ms EK; HR Business Partner, recommended that a disciplinary meeting should be held. The conclusion reached by an investigator is a clear breach of duty. Where a question of unfair dismissal is in issue, in its judgement in Frizelle -v- New Ross Credit Union Ltd (1997) IEHC 137, the High Court provided a list of ‘premises’ which must be established to support an employer’s decision to terminate employment for misconduct, being as follows: “1. The complaint must be a bona fide complaintunrelated to any other agenda of the Complainant,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. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment. The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered. 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.” The Union would contend that the statement “serious breach of trust in the working relationship” was a judgement by the investigation, which was not based on facts gathered, but on opinion and outside of fair investigation procedures and natural justice. Also, in the findings, under the heading LOGGING OF DETAILS, point 3, “Itis the finding of the investigation panel that you exercised extremely poor judgement in claiming monies which you were not entitled to claim. Indeed, your offer to return the monies speaks to the fact that you were and are aware your actions were not appropriate. Your actions have led to a serious breach of trust in the working relationship”. Again, the purpose of the investigation is to establish the facts of the case and not to make decisions or judgement. The Complainant was dismissed 27/11/2018, with notice of 8 weeks’ payment, was in lieu of notice. The disciplinary deciding officer was Mr YM, Head of Operations and MS YD HRBP. Paragraph 5, of the dismissal letter, states, “the company is of the view that this incident has led to a fundamental break-down in trust between the parties involved and, given the role that you hold as an Airport Police Officer this gives rise to thegravest of concern”. The Complainant appealed the decision of dismissal and the appeal was heard 11/01/2019 by Ms SK, Head of HSSE and Ms NR, HRBP. The appeal was not upheld. The Complainant has exhausted the internal process. The Union and the Complainant would contend the sanction of dismissal was disproportionate. The respondent had a suite of sanctions short of dismissal at their disposal. This was the first time The Complainant was subject to a disciplinary, in over 18 years of exemplary service. No policy or procedure was breached by the Complainant as none exists. It was recommended in the investigation report and accepted by the disciplinary panel that “clearly written policies and procedures are required”. The investigation did not adhere to existing collective policy or agreed procedures regarding investigation. The principles of S.I.146 of 2000, were not adhered to. The Complainant was unfairly dismissed and should be reinstated to his position. Background to Case The Complainant was unfairly dismissed on 27/11/2018. The complainant commenced employment with the Respondent on 4th of December 2000. The Complainant was employed as a Police Fire Service Officer. The complainant will tell us, on 24/01/2018 he was handed €250. The person who handed him this money chose not to submit it to the airport police station public office, due to time restraints. The Complainant submitted the money as lost property. The passenger did not leave the Complainant the required contact details for him to pass on. The person on duty in the office followed custom and practice and issued the Complainant with a docket with a corresponding reference number. The Complainant left the money for over three months and one day. As no one had come forward to claim the money, he did. As other officers have done so when property remained unclaimed. In fact, it was common practice to stake a claim on an item such as iPhone or camera, by merely saying if that item is not claimed I want it.
On 24th of May 2018, it is alleged a member of the public who claims to have found the money back in January 18, called to see if the money had been claimed. What happened after this call, has led to the Complainant being branded as untrustworthy and no longer employable. The Complainant was handed a letter on Saturday Morning the 26th of May 2018. The letter invited him to a “Formal Investigatory Meeting” this meeting was scheduled for Monday 28th May 2018, at 19:00 hours. The letter is signed Mr IP, Airport Police Duty Sergeant.
The Respondent Disciplinary Procedure at pg.10, Investigation point 1. Are you the appropriate manager to carry out the investigation? Mr. IP is not a manager. The Complainant was also called to a meeting outside of agreed timeframe, i.e. meetings will be between 09:00 a.m. and 17:00 p.m. Monday to Friday. It’s also worth noting on the evening of the 28/05/2018, The Complainant was in attendance with a fatality at 18:00 hours. No counselling or consideration was shown, he was still expected to attend the investigation meeting less than one hour later. The employer operates in conjunction with the VHI, an Employee Assistance Policy. At pg.6, of the document the section on Critical Incident Stress Management (CSIM) clearly set out the following. This service is available to staff who were exposed to critical or emergency at any of the three airports. The Complainant was not afforded an opportunity to avail of this service as he was due to attend a formal meeting in less than an hour after attending a fatality. The Complainant was distressed by this and not in the right frame of mind for a meeting. The Complainant attended the meeting under protest. During this meeting he was invited to sign a waiver to representation. The Complainant phoned his Union shop steward, Mr. NN. On advice The Complainant refused to sign the wavier and continued the meeting under protest. Prior to the meeting of 28/05/18, the Union shop steward tried to have the meeting adjourned to allow the Complainant to be represented by the person of his choice, this request was rejected by management. A decision was taken to suspend Mr. HS on 31/05/2018 via email. SIPTU Sector organiser Mr NM contacted Mr. NB on 01/06/2018 objecting to the personal assigned to investigate the “alleged misappropriation of money” Mr. NM SIPTU offered the name of a more qualified person in the respondent’s finance department. The objection was also due to prior involvement of both Ms. TH and Mr. DL in earlier decision-making meetings. The company replaced Ms. TH with Ms. EK but refused to replace Mr. DL
The Complainant was invited to a second investigation meeting 22/06/2018 at 08:30 a.m. This meeting took place on 28/06/2018. During this meeting, The Complainant explained he had offered to pay back the money on day one. The investigation officer viewed this as an admission of guilt and proof The Complainant knew the collecting of the money was wrong. Again, making a judgement of The Complainant’s intentions.
The Complainant was dismissed on 27/11/2018. The decision maker, Mr. YM Head of Operational QA & Campus, alleges dismissal was the appreciated sanction. The Complainant appealed his dismissal. The appeal was unsuccessful. The Complainant and SIPTU would contend dismissal to be disproportionate, for the following reasons. Ø The reason he was dismissed was unfair and disproportionate. Ø The alleged breach was not supported by any written policy. Ø The Complainants 18-year clear record was not taken into consideration Ø The investigation was unfair as the Complainant was not given the opportunity to cross examine witnesses who gave statements. Ø The lack of impartiality during the process, the respondent failed to ensure a fair process in all the circumstances. Ø Confidentiality was breached several times during the process.
The Complainant was found guilty from the get-go. The duty Sergeant in one of his statements wrote “I asked NR to talk some sense into him and catch himself on.” This statement is testament that Sergeant IP had already made his mind up on the matter. Further to this, during his interview of 25/07/2018, he confirmed he viewed this a very serious matter and needed to talk to the Complainant before he escalated the matter. It was during a conversation between Sgt. NR and Sgt. IP, that the complainant’s confidentiality was first breached. Ms EC overheard the conversation and took it upon herself to send a text to all the DM’s advising there was a serious incident that needed to be addressed due to potential liability issues for THE RESPONDENT. Ms. EC also spoke to DL and asked he raise this with a CAPO. The Union only became aware of the aforementioned, on 05/09/2018. When the Union objected to the investigation being concluded. The investigation team ignored this request. The outcome was issued to the complainant on 06/09/2018. The Complainant was then invited to a disciplinary hearing. Despite all the objections raised by the Union on the flaws, the unfairness of the process. The lack of impartiality of the investigation. The outcome of the disciplinary panel was dismissal. The Union reiterated its concerns on the lack of due process in this case. The appeal was heard and again the Complainant did not receive justice when the sanction of dismissal was upheld. The Complainant did not deserve to be dismissed. He was never in trouble before he received a commendation letter and was well liked by colleagues and supervisors. His dismissal ended his career of 18 years as a police officer. The Complainant never believed his collecting the money after the allocated time would led to him losing his job, he never would have collected otherwise. Dismissal was completely unfair. |
Summary of Respondent’s Case:
The Complainant commenced employment on 4 December 2000. The Complainant was employed as a Police Officer at an Airport. A copy of The Complainant’s Contract of Employment is at Appendix The Complainant’s employment was terminated on 27 November 2018. The Respondent submits that the complainant was not unfairly dismissed. The Complainant was dismissed by reason of his misconduct. The Respondent submits that the relationship of trust and confidence that must exist between an employee and an employer, and in particular the highest level of trust and confidence that the Respondent (and indeed the public) must hold in the integrity of an employee carrying out the role of a Police Officer, was destroyed as a result of The Complainant’s misconduct. Prior to The Complainant’s dismissal, The Respondent undertook a full disciplinary process, including an investigation, disciplinary hearing and appeal hearing in accordance with The Respondent’s Disciplinary Procedure. A copy of The Respondent’s Disciplinary Procedure is at Appendix 3. For the reasons set out below, The Respondent respectfully requests that the Adjudication Officer reject The Complainant’s complaint in its entirety. The Role of Airport Police Officer The Complainant, as a Police Officer (one of 68 in The Respondent’s 128 person Police Force), was involved in the provision of policing services at an Airport where it is self-evident that the integrity of policing, safety and security are of the utmost conceivable importance. Accordingly, The Complainant was not just an employee but an employee in whom the highest degree of trust and confidence was reposed due to the nature of his responsibilities. The Respondent considers this a critical point and will adduce further evidence to this effect at the hearing of the matter. However, by way of brief example, an Airport Police Officer has wide ranging statutory powers to stop, detain, search and arrest without warrant. All of these powers are bestowed in the interests of the proper operation, security and safety of the airport and the prevention of unlawful acts of interference to civil aviation. In order to achieve the above, Airport Police Officers must work very closely with a range of other law enforcement agencies including but not limited to An Garda Síochána (several branches and units), PSNI, Customs, Port Police, United States Customs and Border Patrol etc. In the course of their duty, Airport Police Officers routinely encounter people at their most vulnerable, people in distress, suffering trauma, injury, mental health issues, serious illness, depression, dementia, bereavement etc. Airport Police Officers deal with serious road traffic incidents, workplace accidents, fatalities and suicides. All Airport Police Officers are cardiac first responder trained, all eight police vehicles are equipped with defibrillators and they are frequently first at the scene for cardiac incidents. In the course of all of this, Airport Police Officers frequently have access to and take custody of, the most sensitive, private and personal information/property. This includes data such as CCTV, photographs and personal property (including found items). Airport Police Officers are required to operate without constant direct supervision and with a considerable degree of autonomy. Police Duty Managers and Sergeants must be confident that their Officers (such as The Complainant) will be trustworthy, report accurately and deal with situations with honesty and integrity. Perhaps most pertinent to the present case, in the normal course of their duties, an Airport Police Officer will be presented with a great many situations that could be manipulated for personal gain, therefore honesty and integrity are essential elements that go to the very heart of their role. As an Airport Police Officer, The Complainant was expected to be well versed in the procedures involving lost and found property. The Complainant was trained in relation to same. A copy of The Complainant’s training records and The Respondent’s written policies in relation to lost property are at Appendix 4. The Misconduct that Resulted in Dismissal The Respondent respectfully submits that the facts underlying The Complainant’s dismissal have, almost from the outset, not been in dispute. A summary of the primary facts are as follows: While on duty on 24 January 2018, a member of the public approached the complainant while he was on duty in uniform in Terminal 2. She gave him €250 in the form of five €50 notes (the “Cash”) that she had found on a bus in the vicinity of Terminal 2. The Complainant claims that he began to explain about the information available on the website and requested her contact details. The Complainant claims that the member of the public had no interest in this as she was rushing for her flight. The Complainant subsequently lodged the Cash in the Public Office of the Airport Police Station and was handed a docket by the person on duty. The Cash was lodged as Lost Property Ref: 2503819. The Cash should have been logged with accurate details both of whom it was “Reported By” and whom it was “Found By”. Those are two separate fields on the log. Clearly, The Complainant should have been recorded as the reporter of the Cash but should not have been recorded as the finder of the Cash. The Complainant failed to ensure that he was logged as the reporter only. Notwithstanding this, The Complainant permitted himself to be logged as both the reporter and the finder of the Cash. A screenshot of the log can be found at Appendix 5. On 25 April 2018, precisely three months and one day after the Cash was found, The Complainant returned and claimed the Cash as its finder, notwithstanding that he knew he was not its finder. The Complainant gave the docket to Ms NB (Airport Police Officer). Ms NR (Duty Sergeant) then entered the Public Office, retrieved the property, inspected the register and approved The Complainant’s claim. The Complainant remarked that this was “money off his holidays”. On 18 May 2018, Mr Jack ET (Airport Police Officer) received a phone call from the member of the public who had initially found the property. She enquired about whether the property had been claimed. In the course of looking into the enquiry, Mr ET noted that the property had been checked out by the Complainant. Mr ET forwarded this information to Mr IP (Duty Sergeant). Subsequently, Mr IP spoke to the Complainant on the evening of 18 May 2018 and asserted that The Complainant had no right to claim the property. Mr IP asked The Complainant to return the money. The Complainant refused to answer. The Investigation Process On 26 May 2018, the Complainant was given a letter by Mr IP informing him that the incident was now subject to an investigation, and inviting him to meet with Ms TH (HR Business Partner Security) and Mr IP (who would together investigate the matter) on 28 May 2018. A copy of this letter is at Appendix 6. On 26 May 2018, the Complainant’s representative, Mr NN wrote to Mr NB (Chief Airport Police Officer) on two occasions raising a number of issues in relation to Mr IP’s letter to The Complainant. Mr NB responded noting that Mr LP (Airport Police Duty Manager) was handling the investigation and so Mr LP would revert to Mr NN. A copy of this correspondence is at Appendix 7. On 28 May 2018, The Complainant attended a meeting with Ms TH and Mr LP(Airport Police Duty Manager). At the meeting, The Complainant was informed he had been suspended with full pay pending a full investigation. The Complainant received an email on 31 May 2018 that confirmed both his suspension and the investigation into the circumstances surrounding his claim to the Cash. On 31 May 2018, Mr LP (Airport Police Officer Duty Manager) wrote to the Complainant confirming the detail of the meeting held on 28 May 2018. In particular, Mr LP confirmed that: The Complainant had chosen not to be represented but then contacted a SIPTU Shop Steward Mr NN in the course of the meeting and stated that he was “attending under protest”; and the Complainant had been “suspended on full pay pending a formal investigation following an allegation of misappropriation that has been made against you in reference to lost property reference number 250381”. The Respondent submits that the suspension of The Complainant was entirely appropriate given the nature of his role and the fact that the allegations against The Complainant at their core involved questions of trust and confidence. A copy of this email is at Appendix 8. By the same email referred to above at Appendix 8, Mr LP further informed the complainant that: an investigation panel had been established comprised of Mr DL and Ms TH; and “[i]n line with company policy depending on the findings of this investigation, it may lead to disciplinary proceedings up to and including dismissal”. Between 1 June 2018 and 13 June 2018, The Complainant’s representative, Mr NM raised various objections to both members of the Investigation Panel (being Mr DL and Ms TH). The Respondent disagreed with all objections raised and retained Mr DL as a member of the Investigation Panel. Ms TH was however replaced by Ms EK (both members of the HR team) to avoid any perceived conflict of interest arising from Ms TH having attended a previous meeting. A copy of this correspondence is at Appendix 9. On 18 June 2018, the Investigation Panel emailed The Complainant inviting him to the Investigation Hearing. The Investigation Panel in particular stated that it related to the ongoing investigation “into an allegation of misappropriation that has been made against [The Complainant] in relation to an item of lost property”; it was enclosing five reports in connection with the matter under review that had been compiled by five named persons; “the outcome may, or may not” form the basis for a subsequent Disciplinary Hearing; he was entitled to be accompanied by a work colleague, staff representative or a Trade Union Official.A copy of the invite email to the investigation meeting is at Appendix 10. On 28 June 2018, the Investigation Hearing took place. In attendance at the meeting were The Complainant, Mr NN, Mr YH (SIPTU Workers Rights Centre Representative), Mr DL and Ms EK. The purpose of the meeting was to ascertain the facts surrounding the dispute relating to the Cash. Based on those facts, a decision would be made as to whether to refer the matter to a Disciplinary Hearing. The Investigation Hearing examined the following witness reports which had been provided to the Complainant in advance: MR IP, Ms NR, Mr ET, Ms NB, Mr TG. Over the course of the Investigation Hearing, The Complainant alleged that the policy regarding lost property as issued on The Respondent’s website was incorrect in that it stated lost property would be retained for 2 months and 1 day, whereas in fact it is retained for 3 months and 1 day. This point is entirely irrelevant and moot with regard to The Complainant’s dismissal given that he claimed the Cash precisely 3 months and 1 day after it was logged. A copy of the meeting notes from the Investigation Hearing (including additional input from the Complainant can be found at Appendix 11. Following the Investigation Hearing, Ms EK and Mr DL held a series of further meetings (between 24 July 2018 and 26 July 2018) with certain witnesses to address issues that had arisen over the course of the Investigation Hearing. They met with the following witnesses: Mr IP, Ms NR, Mr ET, Ms TH and Mr NB A copy of all witness reports, together with any meeting notes, follow up questions and relevant correspondence relating to any of the aforementioned witnesses can be found at Appendix 12. The Complainant’s First Grievance in relation to the Investigation Process: On 31 July 2018, Mr NG submitted a grievance on behalf of The Complainant which in particular made the following allegations concerning the investigation process: “the investigation has or is about to breach his rights in relation to fair procedures and specifically cross examination. In addition we are formally requesting that the investigation be placed on hold until such a time as this matter can be heard and determined by the company”. The Grievance Panel consisted of Mr SL (Head of Human Resources) and Mr NM (Head of Terminals Asset Care). The Grievance Panel heard evidence from the Complainant, Mr NG, Mr NN and Mr KC (Group HR). On 29 August 2018, the Panel concluded that: The Respondent had “not breached The Complainant’s right in relation to fair procedures and specifically in relation to direct access to cross examination of a witness”; The Respondent “facilitates the cross examination of witnesses by either side , but via the chair of the grievance panel and not directly on a face to face basis”; and “[w]ith a view to expediting the process given the particular circumstances of this case, the panel would recommend that the company facilitates as part of the investigation a process of “shuttle cross examination”. A copy of this decision and relevant documentation can be found at Appendix 13. The Complainant’s Request for Clarification on the Circumstances Surrounding the Investigation: In the course of the investigation process, the Complainant raised a concern surrounding the circumstances in which the investigation commenced. On 5 September 2018, Ms EK provided clarification on same on behalf of the Investigation Panel (herself and Mr DL). Ms EK provided a clear chronology of events concerning the commencement of the investigation. Ms EK confirmed that the “outcome of the Investigation Hearing will be finalised and issued to you under separate cover”. A copy of this correspondence is at Appendix 14. The Investigation Report On 6 September 2018, the Investigation Panel (Mr DL and Ms EK) notified The Complainant and his representatives by email that their investigation had concluded. The Investigation Panel provided The Complainant with a copy of their completed Investigation Report (a copy of which is at Appendix 15). The Investigation Report in particular found that: “all witnesses were clear in what occurred in relation to the incident”; The Complainant had completed training on the finding and logging of lost property; The Complainant had confirmed he was logged as the finder of the Cash, that he had not as a matter of fact found the Cash and that he nonetheless subsequently claimed the Cash; and The Complainant “exercised extremely poor judgment in claiming monies which [he was] not entitled to claim”. The Investigation Report concluded that “based on the above it is the finding of the Investigation Panel that a disciplinary hearing should be held”. The Complainant’s Second Grievance in relation to the Investigation Process On 11 September 2018, Mr NG (one of The Complainant’s SIPTU representatives) raised a grievance on behalf of The Complainant alleging that, for various reasons, the“investigation has not been carried out in a fair and transparent manner by Ms EK and Mr DL”. Mr KC (Group Head of Industrial Relations) assigned the investigation of same to Mr NH (Senior HR Manager - Employee Relations). Mr NH met with Mr NG and the Investigation Panel (Mr DL and Ms Kane) to investigate the grievance. On 3 October 2018, Mr NH provided the outcome of his investigation of the grievance. Mr NH concluded that: “I am now satisfied that I have concluded this piece of work, and while there are some procedural anomalies in the investigation process, they don’t amount to me reaching a position that I feel they (the anomalies) would have impacted the Investigation Panel decision. Therefore, I am of the belief that the determination of facts have not been prejudiced in this case. I would recommend that this process moves swiftly to the disciplinary hearing proposed by the Investigation Panel, and that the Disciplinary Panel can determine whether the points posed by Mr NG and Mr NN should be taken into consideration; should a disciplinary sanction be deemed appropriate in this case”. On 4 October 2018, Mr MC accordingly recommended that Human Resources proceed with the disciplinary process. A copy of the correspondence relating to The Complainant’s Second Grievance in relation to the Investigation Process is contained at Appendix 16. Disciplinary Process Ms YD wrote to the Complainant inviting him to a disciplinary hearing on 22 October 2018 on foot of the findings of the Investigation Report. The Complainant was informed of his right to be accompanied to the Disciplinary Hearing. A copy of the invite letter is at Appendix 17. On 22 October 2018, Mr YC(Head of Operational QA & Campus), accompanied by Ms YD (HR Business Partner), held the Disciplinary Hearing with The Complainant. Mr NG and Mr NN (both of SIPTU) were also in attendance accompanying The Complainant. A copy of the notes of the Disciplinary Hearing are at Appendix 18. On 15 November 2018, a follow-up meeting took place to ensure The Respondent possessed all information required to make a disciplinary decision. Mr YD, Mr YC, Ms Kane and Mr DL were in attendance. This was for the purpose of verifying matters. No new issue or fact came to light. If it had, Mr YC would have reverted to the Complainant in relation to same. A copy of the notes of the follow-up meeting can be found at Appendix 19. By letter dated 27 November 2018, Mr YC wrote to The Complainant to provide the outcome of the Disciplinary Hearing. Mr YC informed The Complainant that he was being dismissed from his employment with 8 weeks’ notice with effect from 27 November 2018. The Complainant was informed that he would be paid in lieu of notice. Mr YC emphasised that “careful consideration has now been given to all of the circumstances surrounding the matter”. Mr YC stated that he had “listened to what the Complainant and his union representatives had to say during the hearing and had examined all the evidence presented”. Mr YC also recounted the full process that had been followed in reaching this decision. In reaching his decision, Mr YC set out that : “this incident has led to a fundamental break-down in trust between the parties involved and, given the role that The Complainant as an Airport Police Officer this gives rise to the gravest of concern. Given the above, I deem that the appropriate sanction to be imposed is to discharge [The Complainant] from The Respondent.” Mr YC notified The Complainant of his right to appeal the dismissal. A copy of disciplinary outcome letter is at Appendix 20. Appeal Process By email dated 3 December 2018, The Complainant appealed the decision to dismiss him. The Complainant submitted the following as grounds for appeal: the decision to dismiss him paid no regard to his 18 years of service as a member of the Airport Police; the sanction of dismissal was excessive; no policy a member of the Airport Police; the sanction of dismissal was excessive; no policy existed which applied to the incident in question; The Complainant followed the established custom and practice in relation to such incidents; the investigation was flawed; and the Complainant acted in good faith and in a transparent manner throughout the investigation. A copy of this appeal email is at Appendix 21. By email dated 20 December 2018, Ms NG (HR Business Partner – Security, IT & North Runway Programme) wrote to The Complainant inviting him to an Appeal Hearing on 11 January 2019. Ms SK (Head of Safety, Security and Environment (HSSE) would hear the appeal with Ms NR to provide HR support. On 11 January 2019, Ms Kerins (accompanied by Ms NR) heard The Complainant’s appeal. The Appeal Hearing was also attended by The Complainant, Mr NN and Mr NG (the latter two both of SIPTU). At the Appeal Hearing, Mr NG put forward the complainant’s grounds for appeal. A copy of the invite to the appeal hearing and of the notes of the Appeal Hearing are at Appendix 22. On 30 January 2019, Ms SK issued the appeal decision letter to The Complainant. Ms SK stated that she had: “given very careful consideration to the information that was submitted by the complainant. She also reviewed all relevant information with regard to this case, in the context of the points raised by The Complainant in his written appeal and verbally at this meeting”. Ms SK found that the “the decision to dismiss discharge The Complainant from his employment was warranted given the seriousness of the incident in question, which the Respondent views as gross misconduct”. In reaching her decision, Mr SK stated that “it is imperative that staff conduct themselves in a professional manner and the Complainant’s behaviour and actions in this instance were inappropriate for a member of Airport Police”. Ms SK concluded that there had been a significant breach of trust on the part of the complainant in the employment relationship. This was a breach of such magnitude that it left the Respondent “with no alternative than to take this course of action”. Ms SK decision was to uphold the decision to dismiss The Complainant. A copy of the appeal decision letter is contained at Appendix 23. Although the appeal outcome notes The Complainant would not be paid in lieu of notice, he was in fact so paid. 11. Custom and Practice It bears emphasising that the custom and practice within The Respondent is firmly established as being that: if an Airport Police Officer finds lost property and such lost property is not claimed, the Airport Police Officer may claim same after the specified period of time elapses as he or she was its finder; however, if a member of the public provides an Airport Police Officer with lost property and such lost property is not claimed, the Airport Police Officer may never claim that property as its finder given that he or she was not its finder but its reporter only. core duty of a member of the Airport Police to be well versed in the procedures for lost property. It is further essential that Airport Police Officers uphold the highest obligations of duty and integrity which the role demands. The Respondent at all times applied fair procedures to the investigation, disciplinary and appeal stages. It is submitted that he Respondent's decision to dismiss Tt he Complainant was reasonable, proportionate and appropriate. For the reasons set out above, The Respondent respectfully requests that the Adjudication Officer reject The Complainant’s claim. |
Findings and Conclusions:
The complainant alleges he was unfairly dismissed from his employment on the 30th January, 2019 in relation to the misappropriation of €250.00 which the complainant wrongfully claimed from the lost property department. 6.—(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (b) the conduct of the employee,
On the 24th January, 2018 a member of the public approached the complainant and asked if he would hand in some money that she had found. She couldn’t do it as she was rushing for her flight. The complainant handed the money in. He was name as the “finder” on the slip. He came back three months and one day later to claim the money. It was open to the complainant to have the error naming him as the finder rectified, but he chose not to, thus wrongfully benefiting from the error. The actual finder of the money also called in to claim it. That is when the issue came to the respondent’s attention. The Respondent entity once on notice of the issue commenced an investigation. The complainant is a member of the Union and that Union where very much involved in the process from the outset. Their involvement was over and above what one would expect to see, particularly at the investigation stage. Lists of questions were sent to the investigating officer by the Union and correspondence followed on from that seeking clarity on some of the answers that were given to the questions raised by the Union. The Union also objected to the original investigation officers. The respondent took those objections on board and appointed two new investigation officers. The Union took issue with the conclusions reached in the investigation report specifically this statement: " Your actions have led to a serious breach of trust in the working relationship". I accept that that sentence is probably a step too far in an investigation report. However, I find that its inclusion is not enough, or nearly enough to taint the entire process. It is clear from the investigation report, that the investigation officers felt that the matter warranted moving to a disciplinary hearing. The matter was sent forward for a disciplinary hearing. The disciplinary officer also found that the Union wanted to deal with everything but what had happened on the 18th of May 2018. Evidence was given by the disciplinary officer who stated that he relied only on the facts that were before him and gave the complainant ample opportunity to explain why he had done what he did. I find that both the investigation and disciplinary process were fair, thorough and allowed the complainant ample opportunity to defend the allegation made against him. The complainant was unhappy with the decision to dismiss him, feeling that it was disproportionate. He availed of the opportunity to appeal that decision. At the appeal hearing he was again represented by his Union. It was evident from the documentation and correspondence submitted that the complainant’s Union representatives tried to micromanage and/or derail the entire process. It was a process that was not theirs to manage. That attempt to micromanage the process was evidenced during the hearing also. I find that the unions approach to the process was an attempt to avoid the issue of the misappropriation by raising multiple issues most of which were not relevant to the subject matter of the actual allegation. It was abundantly clear, in contradiction of the complainant’s statement that the custom and practice allowed him to claim the money, that only the finder or the owner of the funds can legitimately claim the money handed into lost and found. He was neither the finder nor the owner. All of the witnesses called by the respondent and by the complainant, save for the complainant’s Union representatives, stated that it was not the custom and practice to put yourself down as the finder if you were handing in the money on someone else’s behalf and it was most certainly not the custom and practice to claim it after the three months and one day had elapsed. They also stated that it was a serious breach of trust. Even the complainant’s representative stated that she accepted that what the complainant did was “an error in judgement”. It not for me to judge the complainant’s actions. My role is to determine whether in all of the circumstances the respondent’s decision to dismiss the complainant was within the band of reasonableness. The respondent stated that due to the fact that the complainant’s actions had broken the essential element of trust, that they had no option but to terminate his employment. I accept that trust is a crucial and essential element of the complainant’s working relationship with the respondent. The respondent’s finding that due to the complainant’s actions, that essential element no longer existed between them and based on that, they had no option but to terminate his employment is well within the band of reasonableness. Similar to the findings, in relation to both the grievances raised by the complainant in relation to the process, I find that the investigation and disciplinary processes were fair and transparent and at no point was the complainant prejudiced or his right to a fair process compromised. In all of the circumstances I find that the complaint is not well founded and accordingly fails.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The complaint fails. |
Dated: 08/10/19
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words:
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