Complainant

Respondent

Anonymised Parties

A Security Employee

An Employer

Representatives

Des Courtney SIPTU

HR Dept

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-00033192-001

17/12/2019

The Complainant commenced his employment with the Respondent on the 10th December 2015. He was a Security Officer on the Luas tram line. At the time of the alleged gross misconduct the Complainant was on a final written warning. The warning when given, was originally for 12 months, however, following an appeal, it was reduced to a period of six months and was due to expire at the end of September 2019.

On the 24th July 2019 the Complainant was requested by his operations manager Mr A, to attend an investigation meeting. There were four allegations outlined in that invitation. The allegations where in relation to incidents on the 26th March, 3rd June, 5th June and 13th June 2019.  On the 15th of August 2019 the Complainant was invited to a disciplinary meeting which was to be held by the security services director Mr B.  Following the disciplinary meeting the complainant was dismissed from his employment.

He appealed that decision but unfortunately his appeal was unsuccessful.

The Complainant takes issue with the fact that he was dismissed for gross misconduct in circumstances where following the incident on the 5th of June he was not placed on suspension. If he was deemed to be a danger to himself and or passengers travelling on the Luas, he should have been suspended.  Instead he continued to work up until the date of dismissal, which was in September 2019. The complainant asks, if his behaviour posed a potential danger to the individuals the Respondent company is responsible for, why was he allowed to continue on in his employment as normal, until he was dismissed? The behaviour/action of the Respondent do not marry with its’ conclusion that his behaviour amounted to gross misconduct.

The Complainant takes issue with the incident on the 26th of March. That was dealt with by Mr A on the 28th of March.  No disciplinary sanctioned was issued. The complainant alleges that it is manifestly unfair that Mr A should be allowed passed judgement on the same incident twice, once in March and again during the disciplinary process that led to his dismissal. The complainant also takes issue with the fact that management did not keep adequate records of discussions that took place with the complainant on the 28th of March in relation to the incident of the 26th of March.

Following the Complainant’s dismissal in September, he stated that he was not in the correct headspace to look for employment. In December he applied for one position as a security officer in a local shopping centre.  He was unsuccessful. He commenced a full-time course in February, 2020 which course finished in February of this year. He now intends to continue his education and will shortly commence a course in relation to Sage accountancy.

The Complainant was employed by the Respondent under a contract of employment with a commencement date of 21 November 2016. The Complainant was a good employee, however there was an on-going issue in relation to his time keeping. The Complainant’s behaviour changed following an unsuccessful attempt for a promotional position. He became withdrawn and very difficult after that.

The Luas platforms form part of the light rail infrastructure and are covered by the by-laws which apply to the operation of the system. One of those by-laws forbids the use of skateboards and other devices with wheels on the tram platforms. The reason for this particular by-law, is because the platforms tend to be packed with people at various times of the day and the risk of accidents are significantly increased due to the concentration of people and their close proximity of the moving trams.

On the 5th June 2019 the Complainant was captured on CCTV riding a Child’s bicycle around the platform and next to moving trams. He could be seen waving at passengers. The occurrence lasted approximately 11 minutes. The Complainant was in uniform at the time. The Respondent became aware of the issue when the company with which they have their contract brought it to their attention at a weekly management meeting. That company left the Respondent in no doubt that they were furious about the incident and stated that it tarnished both their reputation and the Respondent’s reputation. The Complainant’s behaviour on the day was deemed not only to be dangerous to himself but also to passengers on the platform and those travelling on the Luas. That particular incident was a serious breach of the Respondent’s Health and Safety rules, the Luas by-laws and the Company’s policy.

Section 4 of the Complainant’s signed contract states:

follow all reasonable directions given to you by your supervisors /managers.”

Section 18 states: “you are required to carry out all duties assigned to you to the very best of your ability, to act in a proper manner at all times, display loyalty to the company. Our interests are intertwined with yours and you must”

“Grievance, Harassment procedure:

If you are unhappy about any aspect of your employment with the company, you should first discuss the matter with your immediate supervisor /manager. If your immediate supervisor manager is the cause of your unhappiness and you feel that you cannot directly approach them to talk about the issue, please contact your next senior manager immediately. If you are still unhappy you should pursue the matter through the grievance procedure, details of which are set out in the employee Handbook.”

Section 28 states:

“CCTV surveillance is an operation in the workplace and may be used in during investigations and disciplinary matters.”

The company code of conduct states:

“Ensure that all actions taken by the employee are such as not to bring discredit on the employer client or fellow employees.”

On the 10th of June 2019, at a company meeting, the Respondent was shown CCTV footage of the Complainant cycling up and down the heavily populated platform on a child’s bicycle weaving in and out of members of the public and cycling next to moving trams. Only four weeks prior to this incident the Complainant’s twelve months final written warning was reduced to six months in relation to poor time keeping and attendance. The complainant was fully aware that he was on a final written warning at the time of the alleged occurrence.

The Complainant was invited to an investigation meeting on the 25th July 2019. The reason for the delay with the investigation meeting was due to the fact that the complainant was on certified sick leave from the 16th June to the 12th July.  He returned back to work on the 19th of July. That was when the process began. The investigation meeting took place on the 29th July. Following the investigation meeting, the matter was escalated to a disciplinary hearing.

That took place on the 11th of September 2019. The outcome of the disciplinary hearing was given to the Complainant on the 18th September 2019.The result was that the Complainant was to be dismissed. He appealed the decision and the appeal was heard on 15th October 2019. The appeal outcome was dated the 24th of the of October 2019 where the dismissal was upheld. At all stages of the process, the Complainant was entitled to and availed of representation, he was informed of the allegations that were being preferred against him and was given every opportunity to defend those allegations.

The Respondents states that of the four allegations preferred against the Complainant, the most serious of those was the allegation from the 5th of June when the Complainant was observed riding a bicycle on the platform of a Luas station.

The Respondent stated in relation to the allegation from d, March 2019, it was decided to give the Complainant a chance and if no further incident’s occurred they would overlook that incident Unfortunately, due to the Complainant’s own behaviour the Respondent decided to deal with that issue together with the three other matters that were set out in the investigation letter.

The decision to terminate the Complainant’s employment was within the band of reasonableness taking into account the seriousness of the Complainant’s actions and the danger he put not only himself in but the passengers and other employees of the respondent who were on the Luas at the time and the fact that he was on a final written warning.

The facts are not in issue in this matter. The complainant does not deny the allegations preferred against him. He states however that the decision to dismiss him was disproportionate and in light of the fact that he was not suspended and allowed to work on until the date of his dismissal, is fundamentally unfair.   

S6.   (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

4)     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:

( b)      the conduct of the employee,

As is well established, the onus is on the Employer to establish grounds justifying the dismissal. In Governor of Bank of Ireland v Reilly [2015] ELR 229 the Court:

“The onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned“

The Complainant made much of the fact that he was not suspended following the incident where he was observed riding a child’s bicycle around the Luas platform. He stated that if the Respondent deemed his behaviour to be of the type amounting to gross misconduct, he should have been suspended. The fact that he was not, he argues, could only mean that the Respondent did not deem his behaviour was of the type that could amount to gross misconduct.

Bank of Ireland v Reilly 2015 IEHC 241 Noonan J. stated:

“The suspension of an employee, whether paid or unpaid, is an extremely serious measure which can cause irreparable damage to his or her reputation and standing. It is potentially capable of constituting a significant blemish on the employee’s employment record with consequences for his or her future. As noted by Kearns J in Morgan v Trinity College, there are two types of suspension, holding and punitive. However even a holding suspension can have consequences of the kind mentioned. Inevitably speculation will arise as to the reasons for the suspension on the premise of there being no smoke without fire. Thus, even a holding suspension ought not to be undertaken lightly and only after full consideration of the necessity for it pending a full investigation of the conduct in question. It will normally be justified if seen as necessary to prevent a repetition of the conduct complained of, interference with evidence or perhaps to protect persons at risk from such conduct. It may perhaps be necessary to protect the employer’s own business and reputation which the conduct in issue is known by those doing business with the employer. In general, it ought to be seen as a measure designed to facilitate the proper conduct of the investigation and any consequent disciplinary process.”

It is a novel argument that is put forward by the Complainant, that the Respondent could not have deemed his behaviour as ‘gross misconduct’ because they didn’t suspend him. I find that whilst this is a case where the Respondent could easily have justified suspending the Complainant, they took a more conservative approach, and one which was less damaging to the Complainant’s reputation by leaving him in his role until the conclusion of the disciplinary process. There is no legal obligation on a Respondent to suspend an employee during the disciplinary process nor are they barred from a finding of gross misconduct if they opt not to suspend.

The Complainant took issue with the fact that, as he sees it, the matter from March 2019 was taken into consideration twice. I find this not to be the case. It was clear from the Respondent’s evidence that following a meeting in relation to that incident, it was decided to give the Complainant a chance and if no further incidents occurred, then the matter would be deemed closed. The Complainant did not avail of that chance.

Having considered all of the evidence in relation to the allegations, the investigation process, the disciplinary process and the appeal, I can find no breach of Complainant’s rights which could render the decision to dismiss him unfair. The Complainant was on a final written warning at the time of the incident of the 5th June which said warning he was fully aware of, having had its duration reduced on appeal. The Complainant was the author of his own misfortune. In all of the circumstances, I find that Respondent’s decision to dismiss him was within the band of reasonableness.

The complaint is not well founded and accordingly fails.

The complaint is not well founded and accordingly fails.