Complainant

Respondent

Anonymised Parties

Revenue Protection Officer

Transport Company

Representatives

Shonagh Byrne SIPTU

Loughlin Deegan ByrneWallace

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00033763-001

14/01/2020

The employee commenced employment as a Revenue Protection Officer with the respondent on 12 November 2018. He worked a 37-hour week and his gross pay was €2731.58 per month. Following an incident on 27 September 2019 the employee was suspended. There followed an investigation, a disciplinary hearing and appeals process.   The employee was dismissed on 29 October 2019. He is now appealing his dismissal on the grounds of unfair procedures, disproportionality and severity of the sanction. The employee is seeking re-instatement and compensation for loss of earnings.

The employee is appealing his dismissal from his employment on the following grounds:

·         The procedures followed during the disciplinary process were unfair and not in line with the principles of natural justice and fair procedures.

·         The sanction of dismissal was disproportionate and severe in all the circumstances.

The employee worked as a Revenue Protection Officer. On 27 September 2019 an incident occurred involving a passenger and a colleague of the employee. In the interests of public safety and to assist his colleague the employee intervened in the incident. A scuffle developed between the passenger and the employee’s colleague. The employee attempted to de-escalate the situation.

The following day the employee was suspended pending an investigation of the incident.

On 01 October 2019 an investigation meeting took place. The employee was represented at the meeting by his shop steward.   Before the investigation meeting the employee and his representative were made aware that the employer had viewed social media coverage of the incident. At the meeting the employee was provided with CCTV evidence of the incident together with communications evidence and a written report from the security company used by the employer.

The employee explained that he was trying to assist a colleague, de-escalate a serious situation and protect a passenger from a dangerous situation. The employee confirmed that he had attended a conflict management training course. Following the investigation, it was decided the matter would proceed to a disciplinary meeting.

The charge for the disciplinary hearing was as follows: “Your role or action in this incident is deemed to have brought the Company’s name into disrepute amounting to Gross Misconduct”. The incident was referred to had taken place on 27 September 2019.

The disciplinary hearing took place on 23 October 2019. The employee was represented at the hearing by his shop steward. At the hearing the employee was provided with camera footage from the security company body cameras. Reference was made to two statements from drivers, but these statements were not provided to the employee or his representative.

The decision from the disciplinary hearing was that the charge was proven and that the employee’s employment be terminated with immediate effect. The employee was dismissed on 29 October 2019. The employee was advised he could appeal that decision to the HR Manager.

The employee appealed the decision.   The appeal hearing took place on 04 November 2019. The employee was represented by a union organiser and his shop steward. The union official raised appeal points about breach of fair procedure, such as the introduction of statements after the investigation concluded and the use of social media. There was no statement taken from the colleague who the employee had being trying to assist. It was explained that the employee was restraining the individual’s leg to prevent injury to the individual. The employee had acted in good faith to prevent injury to an individual, his colleague and himself. The appeal was rejected.

The employee made a final appeal at a hearing on 26 November 2019. That appeal was rejected and the decision to dismiss the employee was upheld.

The employer’s disciplinary policy states: “Throughout the process any and all relevant information will be given to both the employee and his/her representative in advance.”

The employee asserts that the investigation process was not conducted thoroughly or fairly for several reasons, including the investigator drawing conclusions about the incident without fully considering all the relevant evidence. The employee was not provided with a copy of the investigation outcome report.

The employee’s position is that the disciplinary hearing was unfair, in breach of the employer’s own procedures and the principles of natural justice, for the following reasons:

·         The introduction of new evidence after the investigation concluded. Statements were taken from drivers after the investigation concluded. The employee was not provided with copies of the statements, but they were referred to at the disciplinary hearing.

·         The incident itself and the employee’s explanation were not assessed on their own merits.

·         The sanction of dismissal was severe and disproportionate and was unfairly influenced by the social media footage.

In support of the submissions on reasonableness and proportionality the employee’s representative relied on the following decisions: Lennon v Bredin M160/1979, Frizelle v New Ross Credit Union [1997] IEHC 137, Connaught Gold v Rafter UD48/2014 and Hennessy v Read & Write UD 192/1978.

Summary

The decision to dismiss the employee was unfair and in breach of fair procedures.

The employee did not receive a fair and impartial determination of the issues concerned.

The investigation and disciplinary processes were flawed. The entire process was unfairly influenced by social media footage which should not have been considered.

The employer had a range of reasonable responses available to them. The decision to dismiss was too severe and disproportionate.

The employer asserts that the employee was fairly dismissed on ground of gross misconduct.   The employer found the employee brought the company into disrepute when he was involved in an incident on 27 September 2019. The employee was involved in restraining a passenger by pinning the passenger’s legs to the ground, by kneeling on them, for approximately 10 minutes.

The employer asserts that there was a full and fair investigation of the incident, followed by a disciplinary procedure, in which all the employee’s right were fully observed.   The employee was dismissed for gross misconduct. Gross misconduct is defined in a collective agreement which was negotiated between the employer and the employee’s trade union.

The employee was employed by the employer from 12 November 2018 until his dismissal on 29 October 2019.   During his employment the employee received training on all matters relating to his employment. The employee was employed as a revenue protection officer (RPO), that role involved inspecting the tickets of passengers. If a passenger did not have a valid ticket the RPO would issue a Standard Fare Notice.  It is common that RPOs encounter behaviour from passengers that is challenging or difficult.   For that reason, RPOs receive training in dealing with passengers whose behaviour is challenging or inappropriate.

The employee was trained in conflict management and attended two courses, on 14 January 2019 and 18 June 2019. RPOs are trained to de-escalate conflict situations and walk away from threating situations. RPOs are not authorised to apply physical restraint to passengers. In situations of threat or danger the RPO is trained to make emergency calls to the control room staff who may call security officers or the Gardai to assist. RPOs are equipped with two-way radios.

On 27 September 2019 the employee became involved in an incident that had started when another RPO received a document from a passenger. The passenger tried to take back his document and was then forced to the ground and restrained there by the other RPO. The employee joined the other RPO in restraining the passenger.   The employee pinned the passenger’s legs to the ground and knelt on them for approximately ten minutes.   The RPOs called the control room.   Security guards and officers of An Garda Siochana arrived several minutes later.

The incident took place during the evening rush-hour in full public view. Much of the incident was captured on the employer’s CCTV system.   At least one member of the public recorded the incident and published it on the internet, receiving more than 14,000 views.

The employee was suspended, and a full and thorough investigation and disciplinary process ensued. At each stage of the investigation, disciplinary and appeal process the employee was afforded his full rights in accordance with fair procedures, the principles of natural justice and the provisions of the collective agreement.   The employee was always represented by his trade union representatives.

The investigator met with the employee and his shop steward on 01 October 2019. The employee and his shop steward were given extensive opportunity to view the same video footage and audio recordings of the incident that the investigator had seen.

The disciplinary hearing took place on 23 October 2019. During the investigation and disciplinary process, the employee confirmed that he had not felt threatened by the passenger involved in the incident.   The employee admitted that his actions had brought the employer into disrepute. The employee’s defence was that he was restraining the passenger’s legs to protect them. Considering all the evidence and the submissions that defence was not accepted.   There was no health and safety basis for the employee kneeling on the legs of the passenger, who posed no threat to him, for approximately ten minutes. The employee was dismissed on the grounds of bringing the employer into disrepute, which is recognised in the collective agreement between the employer and the union as gross misconduct that merits dismissal.

The employee appealed the decision to dismiss him. The appeal hearing took place on 04 November 2019. Having considered all the relevant evidence and extensive submissions the decision to dismiss the employee was upheld. As provided for in the collective agreement an employee may make a second appeal. The employee made a second appeal and a hearing took place on 26 November 2019.   The second appeal was heard by the managing director and having considered all the relevant evidence presented and the extensive submission the decision to dismiss was upheld.

The employee has complained that statements were not taken from the other RPO, from the passenger involved in the incident or from certain drivers. The employer responds to this complaint as follows:

·         Further statements were unnecessary. The facts of the incident were not in dispute. The facts are evident from clear video footage and were agreed by the employee.

·         The other RPO was unavailable to comment as he has been on sick leave since immediately after the incident.

·         During the disciplinary hearing the employee’s union representative asked for statements to be taken from certain drivers. This request was agreed to, but the driver declined to make any statement.

All the evidence that was available to the investigator, the disciplinary decision maker and the decision makers in the two appeals was made available to the employee and his representatives.

Summary

In all the circumstances the dismissal of the employee was fair.

The procedures followed during investigation, disciplinary hearing and appeal hearing were fair.

The sanction was proportionate.

CA-00033763

This dispute concerns the dismissal of the employee on the grounds of gross misconduct. The employee is seeking a recommendation of reinstatement to his position and compensation for his loss of earnings.   The employee has based his claim on the following grounds:

·         The procedures followed during the disciplinary process were unfair and not in line with the principles of natural justice and fair procedures.

·         The sanction of dismissal was disproportionate and severe in all the circumstances.

The employer found the employee brought the company into disrepute by his participation in an incident with a passenger on 27 September 2019. The collective agreement between the employer and trade union includes an illustrative list of behaviour and conduct which constitutes gross misconduct. The list includes ‘Bringing the reputation of the company into disrepute’. The employer’s position is that the employee was fairly dismissed following a full and fair investigation, disciplinary procedure.

The facts of the incident of 27 September 2019 are in the main agreed. The employee was not the instigator of the incident. Another RPO was taking details of a passenger who was suspected of not having paid the appropriate fare. That RPO received a document from the passenger.   An incident occurred when the passenger tried to take back his document. The passenger and the other RPO ended up on the ground with the passenger being restrained. The employee claims he intervened in the incident in the interests of public safety and to help his colleague.

I had the opportunity to view the CCTV footage and hear the audio tapes of the incident presented by the employer. It is clear from the video footage that the employee in intervening in the incident participated in restraining the passenger’s legs on the ground for a significant period. The employee claims he acted in the passenger’s interest to prevent harm to his legs. The employee may have been well intentioned in going to assist a colleague, but the passenger was restrained on the ground for close to ten minutes before security staff arrived. The employee, at the disciplinary hearing, accepted that he did not feel threatened by the passenger. The issue with the passenger concerned payment of a fare, it did not arise from any disruption or violence. The incident took place in daylight and in view of members of the public and other passengers.

The employee’s action in participating in the restraint of a passenger on the ground was in direct contravention of the conflict management training he had received.   The employee had attended two conflict management training courses, in January and June 2019.

From the notes of the disciplinary hearing it is clear that the employee accepted his actions on that day had brought the company’s reputation into disrepute.

Having viewed the CCTV footage and carefully considered the submissions I am satisfied that the employee got involved in an incident that he was trained to avoid. The incident was in public and was witnessed by many people and recorded on CCTV.

Procedural Issues

The employee’s position is that the disciplinary procedures followed by the employer were unfair and in breach of their own procedures, the principles of natural justice and fair procedures. The employee relies on the following extract from the collective agreement negotiated between the employer and the trade union:

“Throughout the process any and all relevant information will be given to both the employee and his/her representative in advance.”

I was provided with a copy of the agreement.

The employee claims the investigation was not conducted fairly as he was not provided with all the relevant evidence prior to the investigation meeting. The agreement provides that all relevant information will be given to the employee and his representative in advance and here the information was not provided until during the investigation meeting.   There was therefore a breach of the agreed procedure. However, a breach of the agreed procedure does not necessarily make the dismissal unfair.   What must be considered is did the investigation follow the rules of natural justice.

The employee had been suspended pending investigation of the incident of 27 September 2019. He was aware of the reason for the investigation prior to the investigation meeting. The employee was accompanied to the investigation hearing by his shop steward.   At the meeting the employee and his shop steward were provided with the opportunity to view the relevant CCTV footage that was available at that time before being questioned. The employer has explained that for data protection reasons CCTV is not released. In my opinion the investigation did follow the rules of natural justice in that the employee knew in advance the reason for the investigation meeting, he was accompanied to the meeting by his shop steward and they were given time to view the available CCTV footage during the meeting.

The employee claims that the inclusion of social media footage was a breach of his privacy rights and should not have been relied on in the investigation. The social media footage was I understand uploaded to the internet by a member of the public and viewed approximately 14,000 times.   It is unrealistic to expect an employer to simply ignore such footage. However, having viewed the employer’s CCTV footage and reviewed the minutes of the meeting I am of the opinion that the investigation findings were mainly based on the employer’s own video and audio footage and the employee’s responses to the investigator’s questions.

The employee claims that the other RPO and a driver were not interviewed. I note that the other RPO has been on sick leave since the incident and not available for interview. I also note that the driver declined to make any statement.

The employee claims that disciplinary process contained serious procedural breaches by the introduction of new evidence after the investigation. The notes of the disciplinary hearing indicate that all the CCTV footage, security body camera footage and audio tapes were viewed and listened at the start of the disciplinary hearing, before questions were asked.     The employee had not seen the body camera footage before the disciplinary hearing. It is clear from the minutes that the employee and his shop steward were given time to view and listen to all the relevant material at the disciplinary hearing.

The employee’s representative relied on the decision in Hennessy v Read & Write Shop in her submission. Having considered that decision I am of the opinion that the employee was aware of the complaint made against him, did have adequate opportunity to view and hear all the relevant video and audio recordings and was given the opportunity to deny the allegations or explain the circumstances before the decision to dismiss was taken. The employee was represented by his shop steward and / or union official at all meetings.

In my opinion there was a breach of the procedure set out in the collective agreement in that the CCTV and audio was not provided to the employee or his representative in advance of the investigation and disciplinary meetings. However, I accept that there are data protection issues relating to the release of such recordings. I am satisfied that the employee and his representative were given ample opportunity to view and hear the various recordings before the employee was questioned. In my opinion the employee was not denied fair procedures or natural justice in the investigation of the incident or the disciplinary hearings.

Sanction

The employee claims the sanction of dismissal was disproportionate and severe in all the circumstances.

The issue raised is whether the decision to dismiss was reasonable in all the circumstances and was dismissal within the range of reasonable responses available to the employer?

The employee’s role was that of revenue protection officer. He was responsible for checking passenger’s tickets. If a passenger did not have a valid ticket the employee would issue a Standard Fare Notice. As passengers may sometimes present with challenging or inappropriate behaviour all RPOs receive relevant training. The employee attended two conflict management training courses, in January and June 2019. A copy of the PowerPoint used in the training, including the employee’s responses, was provided to me. RPO’s are trained to de-escalate conflict situations and walk away from threating situations. RPO’s are equipped with two-way radios and trained to react to situations of threat and danger by making emergency calls to the control room.

The employee acknowledged that he did not follow his training when he became involved in the incident on 27 September 2019. As is clear on the CCTV footage he was joined with a colleague in restraining a passenger on the ground for almost ten minutes. In response to questions at the disciplinary hearing the employee indicated that he knew the correct procedure to be followed. However, he did not follow that procedure. The employee asserts he was acting in the interests of public safety.

The passenger was restrained on the ground, in public view, for up to ten minutes. That is a long time for anyone to be restrained on the ground. The role of an RPO is to check passenger tickets and they are not authorised to apply physical restraint to passengers.

The employee was trained to manage conflict situations. He did not follow the correct procedure on the day in question. The employee was not authorised to apply physical restraint to any passenger. While the employee was not the instigator of the incident he participated in restraining the passenger on the ground for a prolonged period. There were many options, within procedures, available to the employee, such as contacting the control room, stopping vehicles and walking away. He did not take any of these options and went outside the normal procedures.

I have carefully considered the submissions, viewed the CCTV footage, listened to the audio recordings and in all the circumstances it is my view that dismissal is within the band of reasonable responses available to the employer.

For the reasons set out above I recommend that the employer’s decision to dismiss stands and that the employee accepts the decision.

I have carefully considered the submissions, viewed the CCTV footage, listened to the audio recordings and considered what was said at the hearing. In my opinion the employee was not denied fair procedures or natural justice in the investigation of the incident or at the disciplinary and appeal hearings.

Taking account of all the circumstances it is my opinion that the sanction of dismissal is within the band of reasonable responses available to the employer.

I recommend that the employer’s decision to dismiss stands and that the employee accepts that decision.  

Dismissal

Fair procedures

Disproportionate Sanction