Complainant

Respondent

Anonymised Parties

Security Officer

Cash transporting Company

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-00032146-001

12/11/2019

The Respondent was dismissed following a Investigatory and Disciplinary process for breaches of the Respondent security policies.

The Complainant provided me with a comprehensive Submission

The Respondent provided me with a comprehensive submission.

I have carefully considered the evidence adduced in the course of this hearing. Both parties took the opportunity to open up the written submissions (on facts and law) which had been prepared in advance of the hearing. In addition, I heard form the HR Manager on behalf of the Respondent and the Complainant gave evidence on his own behalf. Both witnesses were cross-examined by the other side.

The Complainant was engaged as a cash services operative in September of 2017. There can be no doubt that there was a detailed training and induction course entered into between the 11th and 14th of September 2017 and as part of that training the Complainant was provided with a document described as the “golden rules” (for which he has signed). It is assumed that he had read and understood that document as well as all the other information listed in the training record and signed off on by the Complainant and relevant Manager in September 2017.

I note that there is no evidence of any re-fresher course thereafter, and it appears therefore that the Employer herein deemed it’s induction and initial training course to be sufficient.

The Training references the PSA, which is a Statutory Body with responsibility for licensing and regulating the private security industry in Ireland. I understand this includes anything from the movement of cash to the supervision of concerts. I have been told that the PSA issues documents and regulations as guidelines but none of these were presented to me in the course of evidence. I am further told that the PSA is authorised and expected to conduct random audits of the procedures being operated by Private Security companies.

I have heard evidence from the Company HR Director that just such an audit was conducted presumably on a date before 13th of September 2019 and that the results of this audit were to effect the Complainant’s employment. I have to express some concern at the fact that I have no idea who conducted the audit or when the audit was conducted. I have no idea of the scope of the audit or the terms of reference for the audit. It is worth noting that four employees faced disciplinary action arising out of this audit, but I don’t know if more employees were looked at or if it was simply these four who were audited. I note that the Respondent witness suggested that all the information would have been separately available to the Complainant if he wanted it as he is an individual licence holder with the PAS. I so not believe that the Complainant was advised of this fact in the course of the subsequent Investigation and Disciplinary process.

In any event, based on   documentation (and possibly other evidence) considered by the Auditor a conclusion was drawn that the Complainant had breached one of the aforementioned “golden rules” that prohibits the transport of cash (from an ATM or other source back to the secure van) in an amount greater than €30,000.00 at any one time – described as a “pavement limit”.

The Complainant was advised of this infraction by a letter dated the 13th of September 2019   which suspended the Complainant on pay pending an investigation into an “alleged pavement breach”. This was followed up with an invitation to the Complainant to attend an investigation meeting. This letter (dated the 25th of September) indicates the date of the incident (21st of August 2019) but does not detail the incident.

I have seen the notes of the investigation and the investigation report. CCTV footage is referred to but was not shown to me. I understand this footage is possibly of the vehicle interior. The allegation seems to be that the Complainant serviced and cleared out two machines at the same time when he should have done them separately. This meant that he was carrying well in excess of the €30,000.00 limit when he returned to his vehicle (crossing the pavement). I note that no reference is made to the “Golden rules” or specific statutory regulations or Contractual obligations in the course of the Investigation meeting or Report prepared. In looking at the notes of the Investigation meeting, there is a general assumption that the Complainant knew or ought to have known what allegation was being made against him. It also seems to be assumed that the Complainant knew or ought to have known the seriousness of the allegation though none of the correspondence outlines the potential of serious disciplinary action being the outcome.

The Complainant is invited to a Disciplinary meeting (by letter dated the 9th of October 2019) where again the details of the allegation are not outlined nor is the potential of a dismissal referenced. That said, the Complainant does attend this meeting with another person described as a CIT Driver and a SIPTU rep.

I have read through the notes of the Disciplinary meeting. It is an unavoidable truth that the Complainant blamed a lack of training on any oversight. This was raised by both the Complainant and the Representative. This was not further examined by RM conducting the Disciplinary meeting. I note that the training paperwork provides for ongoing “refresher training” but it was not established in the course of the Disciplinary whether this was provided in the 2 year lifetime of the employment. So for example the Complainant says in the course of his initial four days of training he was only ever shown 3 machines. This was not explored though the Complainant stated “ I did the machines like I know how to do it”. The Complainant’s representative raised the point that if the rules were so widely known how did four security officers come under scrutiny at the time of the audit? The Complainant does concede that he carried the large cash amount from the source to the Van though in his evidence before me he seemed to be making the case that he did not know the amount until he had returned to the van. Again, the manner in which the Disciplinary was conducted (or at least recorded) is not methodical and assumes a level of knowledge which this Adjudicator does not have. However, it does seem to me that a number of legitimate issues were raised which were not explored. It is clear that the Complainant does not confirm that he knew that there was an upper limit on what he should be carrying and there is no reference to the golden rules or PSA regulations in this regard. It is therefore was not correct to state that the Complainant agreed that he was in breach of PSA regulations as stated in the subsequent letter of dismissal dated the 16th of October 2019.

It has been pointed out to me that this Disciplinary meeting took 15 minutes.

The Respondent representative raised the spectre that the Complainant should be precluded from seeking relief in this forum by reason of his failure to exercise his entitlement to Appeal the decision to dismiss – which entitlement was provided for in the letter of dismissal. In terms of the facts, I note that the Complainant did look to appeal this decision within three day of the termination of his employment. Thereafter the Complainant engaged a Solicitor to handle this matter on his behalf. It seems common case that the Complainant advised the Employer that he would want the Solicitor to represent him at any Appeal hearing (and not SIPTU). The Employer says it advised the Complainant of a new proposed hearing date. The Complainant says he did not receive said letter and the case was made before me that the Complainant’s Solicitor should have been advised as the Employer knew they were now on record.

The next step taken was the issuing of the Workplace Relations Complaint form. I specifically asked the Respondent representative whether (having received this Complaint Form) the Employer had suggested to either the Complainant or his legal representative that the next step ought correctly be an Appeal hearing? I was advised this did not happen. I note that no notice was given at that time (by the Respondent) that the failure to engage in an Appeal would be used against the Complainant at the hearing of the WRC.

So now I have been asked to disallow the Complainant from progressing this claim through this forum. In reliance on this proposition the Respondent opened two Labour Court decisions: Aryzta v Vilnis Cacs UD/17/106 (2018) and Musgrave Wholsale Partners -v- Johnathan Fox UDD1972 (2019). In the Musgrave case the Labour Court found

The Court notes that the Complainant did not appeal any of the sanctions imposed on him, including the decision to dismiss him. It is clear that he was advised in writing that he could appeal and was given instructions on how to do so. As found in Aryzta Bakeries case, the Court is of the view that there was an obligation on the Complainant to exhaust the available internal procedures which he failed to do” – underline added.

I find I cannot agree with the Labour Court in this regard. Whilst it has long been established that a Complainant should ideally be seen to exhaust all internal mechanisms (up to Appeal) in cases of Constructive Dismissal, this has never been treated as a mandatory obligation. Facts will arise which make a failure to exhaust, understandable.

I would respectfully suggest that the same level of obligation never arose in other Unfair Dismissal cases. A complainant is not compelled to engage in an Appeal process before he/she can lawfully bring a claim before the WRC. Every case will turn on it’s own facts. The Complainant provided me with his own cases

1.1.   The issue of the appeal mechanism should be determined as a preliminary issue. In Graham -v- Newlands Cross Hotel (UD886/2012) and An Employee -v- A Montessori School (UD919/2011). In both cases it was held by the WRC that it did not consider the failure to appeal internally as being of any material consequence to the employee’s claim.

In the case before me I have no doubt that the Complainant would have engaged in an Appeal process with his Solicitor had been invited to. The Respondent cannot hide behind an attempted Appeal hearing where it did not confirm that both the Complainant and the nominated Solicitor were unaware of the proposal.

I have also been invited to consider the timing of this process:

“….its application appear to be con-incidentally directly after Mr M had raised legitimate safety complaints around the status of a work vehicle after which he was sent home for the day. One day later Mr M appears to have been selected for an investigation and disciplinary procedure on the basis of an audit, the details of which have never been disclosed at any point in the process to Mr M.”

I understand the sense of unease at the proximity of these events especially in light of the absence of any information which caused the investigation to be triggered.

On balance I find that the decision to dismiss herein was Unfair. The process leading to the decision lacked fairness. The Complainant’s push-back was not given any consideration. The decision to dismiss the complainant was unreasonable, not appropriate, and not grounded on any disclosed breach of contract, or law   as alleged in the course of the WRC hearing. The Dismissal appears to be grounded on a breach of company policy and procedures.

The Respondent cannot rely on Golden rules that are not to the fore and which it cannot say with certainty were known to the Complainant.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00032146-001 I award compensation for financial loss attributable to the dismissal and take into account the difficulty in obtaining employment in the security industry after a dismissal. The Complainant will ultimately have to look further afield.

I award compensation in the amount of €15,000.00