Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

Representatives

  Appeared in Person

James Cleary , IBEC Executive

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-00035984-001

02/05/2020

On the 2 May 2020, the Complainant, an Albanian National, lodged a complaint that he had been unfairly dismissed from his position as a Security Officer.

The claim was rebutted by the Respondent, who operates a Security Business. The case came for hearing on 28 October 2020, where the complainant represented his own case in the presence of a support person. As no request had been made for a WRC appointed Interpreter, the complainants request that the support person would also serve as an Interpreter was refused and the complainant went on to present his case coherently by means of oral and written submissions.

The respondent was represented by IBEC and presented their response to the claim by means of written and oral submissions also. The respondent was supported by three witnesses.

The Respondent operates a long-standing Family Business, which provides a range of property support services nationally.

The respondent refuted the claim for unfair dismissal and argued that the dismissal was justified through gross misconduct. The action of assault taken against a customer, who was a minor, amounted to an action contrary to the company’s culture and values and warranted dismissal.

The Respondent provided a contract of employment for the Complainants role as Security Officer dated 20 February 2018.

The Respondent representative outlined that on February 7, 2020, a physical altercation occurred in a store where the complainant was based in his role as Security Officer. He submitted that the altercation had involved a customer, who was a minor and resulted in the Store receiving a verbal complaint by the parents of the affected customer.

CC TV footage was reviewed by a Contract Manager for the Respondent and exhibited a physical altercation between the complainant and a customer. The customer had been seeking to purchase energy drinks and had tried to pass them through 3 self-scanning stations and on each occasion was stopped by the complainant.

The respondent submitted that the complainant had pushed the customer in the first instance which was then retaliated by the customer and culminating in the complainant striking the customer in the face. In referring to a February 10 statement by the Contract Manager.

“A teenager tried to buy 6 cans of blue spark, and he went to scan them…. the teenager went to a third self-scan and scanned the cans.

While the teenager was trying to pay, C did not allow him and pushed him away. When C tried to pick the cans up from the self-scan, the teenager pushed him on the shoulder, the reaction of C was punching the teenager under his eyes.

At the same time, the teenager was accompanied by one of his family members. The man tried to stop any further fighting. After a phone call done by the man, three women came into the store and started to shout and scream over C and they said about the teenager that he is just 17 years old. That was all I saw on the CC TV.”

The Respondent submitted that the customer had been knocked to the ground.

The Complainant was suspended on full pay and attended an Investigation on February 14, 2020. Mr B, Contracts Manager conducted the investigation and the complainant declined representation. The complainant informed the investigation that had a working knowledge of the customer and his cousin and he was stealing product.

He confirmed that he realised the seriousness of the event and he would not repeat it. He confirmed hitting the customer.

Because of the investigation phase, the matter was referred for a Disciplinary Hearing, conducted by Mr C, Operations Manager on 28 February 2020. The Complainant declined representation.

The Complainant was dismissed on grounds of gross of misconduct and did not submit an appeal.

The respondent submitted that they wished to contest the claim for unfair dismissal. The respondent relied on the defence provided in Section 6(4)(b) that the complainants conduct presented as substantial grounds warranting his dismissal.

Relying on the EAT case of Mullane v Honeywell Aerospace Ireland ltd UD 111/2008, the respondent outlined that the Investigation was governed by fair procedures. The complainant was aware of the allegations against him. He was provided with an opportunity to respond to these and present his response. He was offered representation at all stages but chose not to avail of it.

The Complainant was afforded a fair and impartial determination of the issues. Decision makers were impartial, with no previous involvement. He did pursue his right of appeal.

The Complainant acknowledged that he had hit the customer and admitted that this should not have happened. He apologised for this.

The respondent argued that the dismissal was a proportionate response as the complainant had been trained to respond in a different manner to striking a customer. Trust had disappeared, and the incident led to an irrevocable breakdown in the employment relationship. A lesser sanction was not appropriate, and relocation was not possible.

The Respondent elaborated on the Training on the 6 core principles of guarding a site on behalf of the respondent. The respondent submitted that the complainant had followed 2/6 on the incident. The customer had not stolen the product, he was electing to pay for it. The complainant may have been justified in apprehending the customer if he had stolen the product.

The Complainant had not been appraised by host store that the customer was barred and not eligible too be served at the store. He operated outside his remit when he refused the customer service. He forgot his training and options open to him under the company code, when he assaulted the customer.

In recalling the application of Looney V Looney UD 843/1984, and the role of a Tribunal in deciding a claim for unfair dismissal, the respondent submitted that the Complainant contributed fully to his dismissal, which disentitled him to redress.

Evidence of Mr B, Contracts Manager.

Mr B had worked at the company for 14 years and he covered over 16 retail sites. He conducted the investigation, where the complainant refused offer of representation, stating that he was happy on his own.

Mr B investigated the statements submitted. The complainant confirmed that he had previous knowledge of the perpetrator, where he had shouted at and threatened him. He confirmed that he had received training, but was vague on its depth, but had not applied that the security code training during the incident. He had compiled an incident report, passed to Head of Security.

Mr B viewed the CC TV footage.

Mr B considered the Duty Manager report, Incident form, email to Head of Security, in addition to the complainant’s response.

He did not have a specific complaint from Customer or Gardai.

Mr B confirmed that CC TV was not shown to the complainant. The customers age was not verified and there were no live criminal proceedings.

Mr B confirmed that he had found a breach of company policy arising from the Physical altercation on February 7, 2020. This warranted progression under the company disciplinary procedure.

Evidence of Mr C, Decision Maker.

Mr C told the hearing that he met the complainant for the first time at the Disciplinary hearing, where he waivered representation. He asked him for his version of events and concluded that the complainant had been provided with Induction and training in the management of an event such as that of February 7, but he had not followed the recognised procedure. In addition, he was a licensed Security Officer.

He decided to dismiss the complainant. The complainant had accepted the transgression occurred. the standard operation policy outlined the preferred method for client interaction. The parents had complained on site. Mr C was troubled by the complainants “impulse reaction “which was outside company procedures. Aided by his experience in the Military, he contended that he could have avoided the escalation of the incident.

Mr C confirmed that he had no means of validating the customers age and he was not under pressure from any source to conclude that dismissal should follow.

During cross examination, the complainant disputed that he was permitted representation and was unsure if he received a formal invitation. In response, the respondent read out the letter of invitation, which was sent by email.

Evidence of Mr D, Senior Human Resource Advisor

Mr D outlined the Standard Operation Protocol applicable to the complainants Assignment as a Security Officer on the respondent client site. There was no scope for a variation in the policy.

Mr C was authorised to dismiss, and Gross Misconduct carries the provision of dismissal.

In conclusion, the respondent representative reaffirmed that the complainant has deviated from the company’s standard operational procedure on management of a security risk and trust and confidence within the employment relationship had disappeared.

The complainant worked as a Security Officer from February 2018 until his dismissal in March 2020. He worked on a full-time basis and was paid €952.63 nett per week.

The Complainant was taken aback by the circumstances of his dismissal, which he argued was disproportionate. He stated that he had a clean disciplinary record prior to the incident which culminated in his dismissal. He had an extended period of unemployment following his dismissal and found new work, on the same pay, two weeks prior to the hearing. He submitted that the manner of the dismissal had caused him stress and vulnerability as he was supporting family.

By way of written submission, the complainant outlined that he had hit “A Minor” in the process of self defence during his work. He disputed that the individual had indeed been a minor.

On 7 February 2020, while based at his usual supermarket, the complainant was informed by a member of the shop staff that a known man had taken 6 energy drinks from the store without paying. This was also reflected in the CCTV footage.

At approximately 18.45hrs, the same person entered the shop and the complainant informed him that he was not welcome there and he was escorted out of the shop.

Shortly afterwards, he returned to the shop and when approached to leave again, disregarded the complainant’s directions to leave and proceeded towards the aisle and “took a pack” of energy drink. The Complainant alerted the Gardai.

The customer approached the self-scanning till and again disregarded the complainant’s direction that he leaves as he would not be served. The complainant intervened to block the transaction and during obstructing the scanning, there was a slight shuffle where the customer attacked the complainant and the complainant hit him. The customer left the store.

On the next day, the complainant received a call from the respondents rostering dept instructing him not to attend work as over 20 people were waiting for him. He understood these people to be linked to the customer.

The Complainant was suspended pending investigation.

Evidence of the Complainant

The Complainant outlined that he had been a hard worker. He believed that he had been placed on a disproportionate number of evening shifts at the store. The store had problems and was home to a high incidence of shop lifting. This had reduced via the complainants shift management, but he felt unappreciated by the company and had made a verbal complaint to pay roll. He understood that he was well regarded by the store Manager.

On the 7th February 2020, he was on break between 1 and 2pm. On his return, the shop staff alerted him that energy drinks may have left the store without payment. CCTV footage confirmed that a customer had stolen these drinks. He cut this disc and placed it in the security office.

The customer returned to the store around 5.45 pm and the complainant denied him shopping privileges and he left the store.

Shortly afterwards, he observed the customer regaining access to the store. The Complainant asked him to leave and the customer became rude and threatening in response. The complainant walked up the aisle and observed that a person, he believed to be his cousin was lurking behind.

The complainant submitted that he called the Gardai and they confirmed that they would send someone.

The customer then approached the till and tried to scan a slab of energy drinks. The Complainant tried to reason with him and prevented him from scanning the products by giving him a slight push. He denied knocking him down.

The customer then left the store in the company of the “cousin”.

The Gardai asked if he wished to sue the customers, but he declined. He told them that” he would let it go” He did not require medical attention.

During cross examination, he denied hitting the customer in the face. He completed an Incident Report form the next day.

The Complainant confirmed that he had received a copy of the staff handbook.

The complainant told the hearing that he had not received sight of his letter of dismissal until April 21. His salary paid during suspension an investigation had ceased on 14 March. The time line for appeal had passed.

The Complainant did not exhibit a statement of loss or mitigation. He submitted that he had forwarded CVS on line in pursuit of work and had found new work, without pay differential within the past two weeks.

He did not consider seeking an opportunity for a second chance with the respondent.

He was familiar with the CCTV footage of the theft as he had cut it. It did not form part of the Disciplinary process.

The complainant concluded by stating that he was innocent. He had worked hard for the respondent and did not deserve to be dismissed. He stated that he had followed the rules for the two years of his employment.

I have been asked to inquire into this claim for unfair dismissal contested by the respondent. In reaching my decision, I have considered and reflected on both parties written and oral submissions. I have also had regard for the respondent company policies, inclusive of the staff handbook, received by the complainant.

 The law on Unfair Dismissal is set out in section 6(1) of the Unfair Dismissals Act, 1977.

Unfair dismissal.

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.

Section 6(4) (b) on which the respondent relies permits an exception to this in the case, where a respondent can establish that dismissal arose wholly or mainly from the conduct of the complainant.

Section 6(6) of the Act places a firm burden of proof on the respondent in that regard.

In addition, Section 6(7)(a) of the Act permits me to look at the reasonableness or otherwise of the conduct of the employer by act or omission.

At the outset, it is important for me to point out that gross misconduct is not defined specifically in the Act but Conduct as provided for in the Act, has been considered in case law.

Ruffley V Board of Management St Anne’s School [2017] IESC 33, Bank of Ireland v Reilly [2015] IELJ 72, and Bunyan V UDT [1982] ILRM 404

In chapter 16 of Redmond on Dismissal Law, Des Ryan, BL refers to the legal framework governing conduct-based dismissals.

The issue for the Tribunal deciding the matter will be whether the circumstances proven to find the dismissal were such that a reasonable employer would have concluded that there was misconduct and that such misconduct constituted substantial grounds to justify the dismissal.

In my preparation for the case, I was struck by the retrospective date of dismissal, March 3, contained in a letter dated 5 March 2020. The complaint form reflected a date of March 1,2020.

On further inquiry, the complainant told me that he had not been officially notified of his dismissal and had merely learned of it when his pay ceased mid-March. The respondent disputed this and was adamant that the letter of dismissal had issued, but I did not receive a reason for the retrospective application. Having listened carefully, to the parties, I am satisfied that the employment ended in dismissal on March 3, 2020 in accordance with the provisions of section 1(a) of the Act. However, I found a laxness in the communication of same. I appreciate that this period co-incided with the antecedence of the National Pandemic and that may well have contributed to the confusion.

I note that apart from some dissatisfaction on shift allocation, the complainant recalled a positive employment experience prior to 7 February, this was not disputed by the respondent. The facts of this case, therefore, surround a single episode dismissal, that is the events surrounding February 7, 2020.

It is not for me to judge whether the complainant was right or wrong in his work performance on that day, I must consider whether the respondent has proved that substantial grounds surrounded the decision to dismiss and whether that decision fell within the “band of reasonableness “for such an employer.

The respondents Disciplinary Policy permit dismissal on the grounds of gross misconduct. The policy does not elaborate on any procedural framework surrounding this “You will be liable to summary dismissal if you are found to have acted in any of the following (12) ways “

The complainant submitted a note compiled by the Duty Manager at the respondent business to the respondent Security Manager, dated 8 February. This authorised the removal of the complainant from the roster by the Contracts Manager, Mr A “because of concerns about his safety “and referred to an” incident with barred member of traveller community “

I interpreted this as the commencement of suspension, albeit that the complainant filed his Incident Report later that day.

On February 10, Mr A, whom I did not meet in the context of this case, filed a report of “review of CC TV “February 7, to the respondent security manager. The report reflected that the customer was a teenager. The report detailed the physical interaction between the complainant and the customer and ended where three women came into the store and started to shout and scream over (the complainant~) and they said about the teenager, he is just 17 years old.

The Letter of suspension dated later that day stated that the objective of suspension was to facilitate a full and impartial investigation into the matter of concern:

It is alleged that on Friday, 7 February at approx. 7.30pm whilst on duty at X, you physically assaulted a minor.

The findings of an Investigation were to follow.

I fully accept that February 7 was a monumental day for both parties in this case. The complainant presented his version of the day in many parts which featured the customer in several guises. The respondent preferred to focus on the last incident of the day in proximity to the self-scanners.

In this case, there were many people who were onlookers during February 7 in the Client Store. I accept that the complainant was notified of the customers “suspicious behaviour “early that afternoon. I was at a loss to understand why the complainant was the sole participant in the investigation and why the customer, or employees of the client site or the respondent company were not interviewed. I did inquire, but it was not clear to me that any validation exercise had been undertaken to establish the customers age. The complainant disputed his minor status citing physique, however, this was a situation which would have benefitted in validation, given the parallel rules for interaction with adults and children in the company policies.

In addition, I did not establish that the complainant had been met with a copy of the customers advocates verbal complaint. It is not clear if anybody recorded this complaint. I appreciate that the employment relationship is complicated in this case. The complainant was employed by the respondent and placed as mobile security in a supermarket setting. I inquired whether the respondent had been met by a complaint from the client site and was informed that they had not.

In the EAT case of Vita Cortex ltd V DourEllan UD 1031/1992, the Tribunal stated:

A reasonable investigation requires more than merely seeking to confirm suspicions, it must include an inquiry into all the surrounding circumstances and interviewing all relevant employees on these matters

I found the investigation in this case to be overly exclusive, brief and lacking in depth. From my reading of the minutes, which were not provided to the complainant prior to the Disciplinary hearing, I found that they mirrored a Disciplinary rather than fact finding exercise. However, most important this meeting was not followed by the promised outcome. They were no findings recorded and the process glided into a Disciplinary hearing on one days’ notice. I accept the respondent confirmation that the letter of invitation issued over the complainant’s evidence that it had not. It seems that he claimed the travel subsidy associated with the meeting.

I have found that the investigation at 20 minutes duration, fell far short of best practice and I have concluded that it was injurious to the complainant. The respondent did not probe when the complainant said he was stressed or when he apologised. I appreciate that he did not advance a medical report in pursuance of this assertion, but it was worthy of further probing and fair consideration.

I was troubled that the investigation was referred to as time limited. The complainant was to have an outcome in 5 days by letter.

I found that the complainant would have benefitted from representation in this case. I could not establish why he felt he could manage it alone. I accept that he was always offered representation and declined.

Two weeks later, the complainant received an invitation to a disciplinary meeting which mirrored the invitation to investigation. The Complainant was requested to furnish any relevant documentation but did not add anything.

This Disciplinary meeting traversed a similar line of questioning as the Investigation and was extremely brief. I noted that Mr C acknowledged the complainant admission of the transgression and concluded this warranted dismissal. I do not understand why the letter of dismissal was signed by Mr D and referred to a collective rather than singular decision to dismiss.

Once again, I suggest that the complainant should have considered representation at this juncture.

I have already addressed the enigma of the date on the letter of dismissal.

The respondent has stressed that the complainant made an unacceptable deviation from the company policy on intervention in the face of a challenging customer and this rendered the employment relationship null and void.

For my part, I found this to be a partisan approach. I fully accept that the events of February 7 were grave and carried a high level of disappointment for both parties.

However, I found that the complainant, while listened to through the disciplinary procedures was not heard. He attempted to link the outcome of assault to an escalation of earlier events in the day and his lack of awareness of the complainants age. He did seek to apologise and seek a fresh start and I could not establish how he was heard on those submissions. I have found that the respondent had a view that once an act of gross misconduct was acknowledged then the very next course of action had to be dismissal. I found this to be a short-sighted view set against an unblemished employment record.

 The respondent’s Disciplinary procedure is prefaced by the aim:

“To provide a fair and consistent framework within which unsatisfactory employees may be helped to improve, and unacceptable conduct dealt with.”

In Frizelle v New Ross Credit Union ltd [1997] IEHC 137, the High Court set a 5-point test for misconduct in a dismissal context.

In applying Frizelle to the facts of this case, I found that that the respondent did not state the complaint “factually clearly and fairly without innuendo or hidden inference or conclusion.” I found that an element of pre-judgement entered both the investigation and the disciplinary hearing. I understand that both respondent managers were drawing on their own experience “on the ground”, however, the complainant was entitled to present his response without value judgements. I am not satisfied that the respondent gave sufficient consideration to the impact of the dismissal on the complainant.

I appreciate that the complainant gave the respondent grounds to consider his continued employment on February 7 , however ,in the absence of a veritable customer/ Garda  complaint or a validation exercise on the perpetrators age, or witness evidence , I found that the respondent accelerated towards dismissal without any consideration of lesser sanctions and on that basis I agree with the complainant that the sanction of dismissal was disproportionate . However, the respondent has proved that substantial grounds surrounded the decision to dismiss.

I refer to the respondent reliance on the complainant’s deviation from the company operational standard on customer interaction. In all circumstances, I found that the complainant was vague at hearing, when the respondent was testing his knowledge of training received. I found this quite unusual. I am satisfied that the complainant was trained for the purposes of his position and his responses at hearing were evasive.

While I have found that the respondent can rely on the defence contained in Section 6(4) (b) of the Act, I must find that the dismissal was procedurally flawed from the outset. The complainant understood that he was placed off duty to avoid the wrath of the customers supporters. The letter that followed departed from that maxim.

I have found that there were antecedent events on February 7 which were not incorporated into the company procedures and this prejudiced the complainant. In my opinion, the decision taken to dismiss the complainant was not enshrined in reasonableness and was disproportionate.

I have, however found that the complainant did not have enough regard for the companies Security procedures, and he has contributed to his dismissal. I would have preferred to have seen the complainant reach out for representation in this case.

The complainant was unfairly dismissed.

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 have found that the complainant was unfairly dismissed. The complainant did not provide evidence of loss and mitigation, neither did he present medical evidence on his reported stress levels.

I am satisfied that the dismissal had a negative impact on the complainant, and he carried a large amount of fear of reprisal from the customers colleagues long after his dismissal. This is regrettable.

I find that compensation is the appropriate redress in this case. I order the respondent to pay the complainant €13,420.80 to address actual economic loss and notice pay.

I would also ask the respondent to review their Disciplinary policy on the management of a procedural framework in the case of alleged gross misconduct.

Claim for Unfair Dismissal