Complainant

Respondent

Parties

Oghenenyerhovwo  Ogbodu

Ocs One Complete Solution Ltd

Representatives

  Self

Cian Conboy Ibec

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-00038497-001

02/07/2020

The complainant was employed as a security officer from 19/11/2018.  He was paid €11.65 per hour.  An issue arose in March 2020 whereby the complainant was involved in an incident with three customers.  The complainant was assaulted by one of the group.  He then took possession of a set of car keys and this was followed by a further altercation.  The respondent then commenced an investigation.  This resulted in disciplinary process which resulted in the complainant being summarily dismissed for gross misconduct on 05/06/2020.  He submitted his complaint to the Workplace Relations Commission on 02/07/2020 and is seeking compensation.

The complainant commenced employment with the respondent on 19/11/2018.  He was employed as a security officer and assigned to one of the respondent’s client store.  This was a busy supermarket and he was the security officer there.  On 21/03/2020 there was an altercation between hm and three customers.   He was seriously assaulted by two of the alleged shoplifters and the complainant states that he “had to use my right to self-defence to protect my life.”  He informed the respondent about this incident and provided details of witnesses who voluntarily gave their details.  He was invited to an investigation meeting on 26/03/2020.  This was cancelled and rescheduled on a few occasions.  The meeting was eventually held on 17/04/2020.  Following that meeting he was suspended with pay.  On 22/04/2020 he was invited to a disciplinary meeting on 24/04/2020. The complainant wrote to the respondent’s HR department on 23/04/2020 and outlined his dissatisfaction with the conduct of the investigation meeting.  He submitted that the investigation meeting was compromised as “one could tell from his manner of questioning and countenance that the entire process was hitherto compromised.”  It was his view that the chair of the investigation meeting had a preconceived belief that he was guilty.  The complainant believed that this meting was supposed to be “aimed at gathering facts on the incident” but instead was “… purely a meeting aimed and designed to victimize me, discredit me, place me on the offensive, strip me of my right to a fair hearing and pronounce me guilty even before the final outcome of the said investigation.”  The complainant also submits that the notes of the meeting on 17/04/2020 are inaccurate and there are words and phrases inserted in these notes which he did not use at the meeting.

A disciplinary meeting was held on 21/05/2020.  The complainant was dismissed following this meeting.  He was advised of his right to appeal and in doing so he outlined his concerns about the entire process.  He submitted that this process was compromised and designed to terminate his employment.  His actions on 21.03/2020 were done in self-defence and to ensure that the alleged offender was brought to justice.  An appeal hearing was held on 19/06/2020.  The decision to dismiss was upheld and this was confirmed in a letter dated 25/06/2020.

The complainant submits that the entire process used by the respondent was flawed, unfair and did not respect his right to a fair hearing.  None of the independent witnesses to the incident were interviewed by the respondent.  He was the only person who was present that was interviewed, and his perspective was ignored.  The respondent lacked any information to make an informed decision which would lead to dismissal.  As he was defending his life he received no support from the respondent and instead was put in a position that affected his wellbeing. 

The complainant did not obtain alternative employment until 16/12/2020 and submitted comprehensive details of his attempts to obtain employment and mitigate his loss following his dismissal.

The respondent is a family owned business which provides a range of property support services on a national basis.  They operate in the cleaning, security, consumable products and aviation industries. The complainant was employed by the respondent from 91/11/2018 as a security officer.  He was provided with a contract of employment and received a comprehensive induction and training programme on commencement of employment.   He worked an average of 38.71 hours each week and was paid €11.65 per hour. 

On the 21/03/2020 the complainant was involved in an altercation with three customers in one of its client’s grocery store.  The complainant observed a female customer exiting the store following the non-payments for the items.  The complainant followed this customer outside the store.  He was assaulted by a male who was accompanying the female customer.  The complainant ten took possession of a set of car keys from the dashboard of the customers car and returned with these to the store.  It would appear that his intention was that the customer would follow him back to the store.  When the customer returned to the store another serious altercation took place.  The complainant reported the incident to the respondent the same day. 

The complainant was transferred to another location on 24/03/2020 and provided with the contact details of the respondent’s Employee Assistance Programme. 

The respondent established an investigation and the respondent was invited to attend a meeting on 17/04/2020.  He was advised of his right to be accompanied by a trade union representation or a work colleague, but he declined this offer.  A contracts manager for the respondent undertook the investigation and a note taker was also present.  The investigation meeting provided the complainant with an opportunity to outline his version of events.  He confirmed that an altercation occurred and that he followed the customer out of the store, took the keys of her car and he was then hit by a person who accompanied her.  He confirmed that he hit back at the customer after he was hit.

The chairperson of the investigation meeting decided that the matter should proceed to a disciplinary hearing and that the complainant should be placed on paid suspension pending the outcome of this process. 

A disciplinary hearing was convened for 21/05/2020 and the complainant was again advised of his right to representation at the meeting.  He declined this offer.  At the meeting the complainant confirmed details of the incident.  He observed a female customer leaving the store without paying for goods and he followed her outside.  He was then assaulted by a male person who accompanied her.  He outlined that he received a blow to his chest.  The complainant took possession of a set of keys and went back to the store.  When the customer returned to the store a further altercation occurred.

The complainant confirmed to the disciplinary hearing that he had received training known as “Threats and Violence Training.”

The outcome of the disciplinary hearing was that the complainant was summarily dismissed for gross misconduct.  He exercised his right to appeal and this was undertaken by the head of another department within the respondent’s company.  The appeal took place on 19/06/2020 and the outcome was that the decision to dismiss for gross misconduct was upheld.  This was confirmed to the respondent by way of letter dated 25/06/2020.

The respondent submits that the decision to dismiss was justified given the circumstances.  The complainant was fully trained and at induction employees are provided with the core principles of guarding a site on behalf of the respondent.  A copy of the complainant’s training records and acknowledgement of receipt of the respondent’s handbook were submitted in evidence at the hearing.

The respondent’s training clearly states as follows:

“the Security Officer is to ensure that personal safety is not compromised when requesting persons to leave the premises.  Safe systems of work must be followed: maintain a safe distance from the person/s and must not venture externally more than three meters from the entrance door frame.  If the Security Officer assesses potential conflict, he/she is to seek assistance from Store Management before approaching the individual/s.”

Two other aspects of the training were highlighted:

“Call for support (Security/Management/Garda) should be made if there is a risk of harm to security, staff or patrons”,  and

“If the suspect refuses to return to the premises and shown any sign of aggressive behaviour the security officer is to end the arrest process, disengage, and warn the suspect that CCTV will be forwarded to the Gardai and that the suspect is barred.”

The respondent’s code of conduct also prohibits the use of any inappropriate physical contact with any individual while on duty and this includes members of the public, clients and colleagues.  The code also notes that any failure to comply with this provision will result in disciplinary action.

The respondent submits that the complainant clearly acted outside the scope of his training in relation to this incident.  He had many opportunities to set back but chose not to do so.  Given that he states that he feared for his life he should have stepped away from the situation instead of actively escalating matters in a manner which was predictable by virtue of his actions.

The respondent’s representative submits that a “reasonable employer in the same position and circumstances” would have made the same decision.  The need for satisfactory standards of behaviour and conduct are an integral part of any organisation and as a provider of security services the respondent is duty bound to ensure the safety of members of the public who attend any store.  If the respondent did not discipline the complainant, it would indicate that the conduct of the complainant was correct and that it was acceptable to ignore the training provided and the provisions of the respondent’s code of conduct.   

The respondent’s representative also submitted that the principles to be applied in cases of gross misconduct have been well established over time.  The test case of Looney & Co v Looney, UD 843/1984:

“it is not for the Tribunal to seek to establish the guilt or innocence of the complainant, not is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so wold substitute our mind and decision for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decisions be judged.”

The respondent’s representative also highlighted the case of A sales Assistant v A Retailer(ADJ-00019683) in relation to physical assault the Adjudicator stated as follows:

“Regardless of whether or not the complainant had received such training, he should have had the sense to absent himself from a situation which resulted in him losing his composure and pushing a customer.  If the complainant felt that he had been verbally abused by the customer, he should have reported the incident to this manager and sought his manager’s guidance and support.”

The respondent’s position is that the complainant destroyed its trust and confidence in him and therefore rendered the continuation of his employment relationship impossible.  Given all the circumstances it is clear that the complainant contributed fully to his dismissal.  The dismissal was fair, and it acted reasonably by affording the complainant fair procedures throughout the process.

Most of the facts in this case are not in dispute.  Dismissal as a fact is not in dispute and so therefore it was for the respondent to establish that in the circumstances of this case the dismissal was fair.  In that context the decision of Barry v Precision Software Ltd. (UD 624/2005) [2006] JIEC 1801 the Tribunal said:

“In determining whether the dismissal was unfair or not, section 6(6) of the Unfair Dismissals Act 1977 provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal … It is not for the Tribunal to intrude into the Respondent’s managerial decisions.  The Tribunal has to look at what a reasonable employer would do in the circumstances.  Neither is it for the Tribunal to consider what sanction it would impose.  The Tribunal’s function is to decide whether the employer’s reaction and sanction came within the range of responses, which a reasonable employer might make.”

The respondent submits that the complaint was dismissed as a result of (i) a physical altercation with a female customer of a store while he was stationed there as a security officer (ii) for following the customer outside the store and (iii) for taking possession of a set of car keys belonging to the customer and(iv) for being involved in a further serious altercation when the customer returned to the store.  The respondent submits that these actions constituted gross misconduct as they are a total breach of their policies and that it is consistent with their disciplinary procedures.

Section 6 of the Unfair Dismissals Act, 1977

“(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.”

Subsection (4) (b) provides that: 

“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:

(a)    The capability, competence or qualifications of the employee for performing the kind which he was employed by the employer to do,

(b)    The conduct of the employee,

(c)     The redundancy of the employee, and

(d)    The employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

The complainant confirms that the incidents occurred and that the context was that he was defending himself.  I do not consider that there were any mitigating factors for his actions.  If the complainant was under such a threat, there were clear policies about how such a situation should be managed.  It is inconceivable that the complaint, who worked for the respondent since 19/11/2018, was not aware of the correct procedures to follow in such a situation.  While he highlighted some issues in relation to this initial training he had, at the time of this incident, built up a level of experience that should have resulted in him dealing with the matter in a proactive manner.

It is not my function to determine if the sanction of dismissal was correct but rather to determine if the sanction of dismissal came within the “band of reasonableness” cited in the cases which are referenced above.  In that context I am guided by the jurisprudence of the High Court and other decisions cited above.  In all the circumstances of this case, I find that the actions of the respondent in dismissing the complainant for gross misconduct were within the band of reasonable responses available to it and that substantial grounds existed to justify the complainant’s dismissal.

I am also satisfied that the manner in which the respondent conducted the investigation, disciplinary hearing and appeal hearing fully complied with the respondent’s Disciplinary and Grievance Procedures and at all times conducted these matters with fair procedures and the principles of natural justice.

I find that there were substantial grounds justifying the dismissal of the complainant and that this dismissal was neither substantially or procedurally unfair.  Accordingly, I find that the complainant was not unfairly dismissed by the respondent contrary to Section 6 of the Unfair Dismissals Acts.

I find that the complainant was not unfairly dismissed.

Unfair dismissal.  Fair procedures.