ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00019704

Parties:

Complaint(s):

Date of Adjudication Hearing: 26/02/2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute

Background

Complainant alleges that he was unfairly dismissed following an investigation of allegations made against him. This is wholly rejected by the respondent.

The respondent submits that the complainant was dismissed fairly and lawfully following a disciplinary process which found that his conduct was in breach of respondent’s policies and procedures

The complainant commenced employment on the 8th August 2017 and he was employed as a technical support adviser. The complainant was in receipt of an annual salary of€ 32,400 gross per annum.

Summary of Respondent position

On 7 December 2018, the complainant attended a workplace event in local football stadium.

Due to the scale of the event, members of the respondent’s global security team coordinated searches of staff members entering premises. This is a routine security protocol.

As part of that search, respondent’s security utilises specialist equipment to test for a number of substances.

A swab of complainant’s bag revealed a positive trace Tetryl., which is an explosive substance use as a detonator for a main explosive charge.

It is an odourless, synthetic, yellow crystal-like solid that is not found naturally in the environment.

In order to verify that a false reading was not taken, the respondent’s security manager sought a verification swab to be taken.

The respondent’s security manager asked if the complainant was willing to open his bag in order to confirm the contents, but the complainant refused.

The complainant was informed that a positive reading had been taken and was asked if he could account for the presence of this substance. The complainant maintained that he had not come in contact with any explosives.

It was also explained to him on a number of occasions that the matter could possibly be resolved if he granted permission for a search of the bag to be conducted.

He (Complainant) again refused each request stating that it(bag)contained personal items that he would not consent to a search.

It was pointed out to the complainant that in the interest of the safety of all attendees that he would not be permitted into the venue if a search of the bag was not conducted.

The complainant repeatedly stated that the “machine was faulty” and refused to allow the bag to be searched, preferring to leave the venue rather than submit to his belongings being examined.

Approximately, one hour later, the complainant returned to the event without the bag. He was searched prior to entry and nothing was found, and he was allowed in to the event.

The respondent attempted to contact the complainant over the following 2 days, on the 11th December 2018 the respondent spoke to the complainant by telephone and informed him due to the seriousness of the allegations He (complainant) will be suspended with pay pending an investigation.

The respondent sent the suspension particulars by email to which the complainant acknowledged.

In December the 13th 2018, the respondent security undertook further investigations by utilising a commercially available handheld explosives trace detector to swab test the claimant’s workstation, and the power switch on his work iMac, both of which tested positive for an unspecified explosive substance.

A review of the device indicated that the software was up to date, the manufacturer confirms the aforementioned positive tests results.

Following this a decision was taken to conduct the sweep of the respondent’s building, the complainant’s normal place of employment, using commercial explosive detection dog. The searches took place on 13 December through 10:30 PM and December to 14th 2 PM.

During the search, explosive dog reacted positively to the power switch of the complainant’s iMac, evidencing the presence of an explosive substance.

In December 17, 2018 respondents HR spoke with the complainant, via conference call, to initiate an investigation process. The meeting was to advise complainant that an investigation into the events of the 7th December was being commenced.

The complainant requested that the investigation proceed via writing rather than in person or over the conference call.

The complainant request was granted by email and he was asked six questions. The complainant was advised that his actions may amount to gross misconduct and could lead to disciplinary action up to and including dismissal.

The complainant did not provide answers to the questions, an explanation or justification for his action. On the 27th December the respondent’s investigator informed the Complainant that the matter was to proceed to the next stage of the respondent procedures in the absence of a response from the complainant.

Respondent deemed it necessary to proceed with the investigation without delay due to the seriousness of the matter

On the 4th January 2019 the respondent received a correspondence from the complainant’s solicitors.

Disciplinary meetings took place on the 8th January and adjourned for 24 hours and reconvened on the 9th January. The complainant was accompanied by his representative (R.M)

A meeting on the 17th January 2019 the allegations were again put to the complainant and he was summarily dismissed on the 18th January 2019.

The respondent submitted that, although not required in the circumstances, the complainant was paid 4 weeks’ pay in lieu of notice.

The complainant appealed the decision and the appeal was heard on the 14th February and the decision to dismiss was up held.

The respondent submitted that all stages of the disciplinary Policy and Procedure were followed in line with S.I.146 of 2000.

The respondent submitted case law to support their position

Summary of the complainant case

The complainant stated that he was to attend a respondent’s Christmas party at a football stadium.

During a security check his bag was swabbed by a respondent security person (he later discovered the name) with whom he had a previous run in with. The complainant stated that he was advised that his bag had tested positive to a trace of substance associated with explosives.

The complainant submitted that he was asked what was in his bag and that he replied personal items.

It was submitted that he(complainant) was having a chat with some work colleagues and about to enter the party when the respondent security person came to him and stated he wanted to talk to him and he was not to go into the event.

The complainant felt that he was being singled out and embarrassed in front of his colleagues and managers.

He (complainant) refused to allow the security to examine his bag and he left the event and gave the bag to a bus driver who had been hired by the respondent to bring employees to the event.

The complainant stated that his house was searched by the authorities on the 14th December and they did not find anything illegal and no ongoing investigation and no prosecution had taken place.

The complainant submitted he still had no report about traces of a substance, found by dog on his working computer.

The complainant also submitted that he could provide the names of some key witnesses, who would contribute to a better investigation however no interest was shown in it.

The complainant stated that the word of the security officer had more weight than his word.

The complainant submitted that his good name and reputation had been badly tarnished by the actions of the respondent.

Findings

The respondent supplied a detail written submission at the hearing and the complainant relied on the submission on the complaint form.

I find having listened to all the evidence.

I find the process requires close examination and updating.

I find there is no clear procedure for the security personnel to follow in such circumstance.

I find that any inter action between the parties should have been done in the privacy of a room.

I find that the respondent’s security did not have the authority to exam the contents of the complainant’s bag without permission.

I find that when the complainant refused to cooperate and allow his bag to be searched then the appropriate authorities should have been called.

I find that an experienced security person once he/she had found an explosive substance and where the other person or refused to allow the contents to be examined   he/she would have called the appropriate authority straight away.

I find that the complainant was allowed to leave the area with his bag.

I find it Incredible to think that traces of the substance was only found on the complainants iMac and workstation, no other transfer locations were identified, the iMac and workstation cannot be the only touch points the complainant had.

I find at the very least, a detailed testing plan should have been provided to demonstrate a balanced approach as the testing quite simply looks targeted at the complainant and negates the possibility of the transfer to the complainant himself from a primary source.

I find Information with regards to third party validation of test results is lacking.

I find based on correspondence from the complainant that the authorities are not taking any further action

I find the that an investigator ‘s role is to establish facts and not to make any comment on the outcome of such investigation.

I find that the complainant contributed to his own dismissal he should have opened his bag and if he had a grievance about the way the whole issue was handled he should have used the respondent’s grievances procedures

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.

I recommend that the dismissal unfair and I award him €4500 in compensation.

Dated:   23rd June 2020

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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