FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : Q-PARK IRELAND LIMITED (REPRESENTED BY IBEC) - AND - MR DENIS FITZPATRICK (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No. ADJ-00018652 CA-00023964-001 This is an appeal by QPark Ireland Ltd under the Unfair Dismissals Act 1977. Mr. Fitzpatrick, ‘the Complainant’, was a Parking Host for QPark Ireland Ltd. ‘the Respondent’, from November 2013 to August 2018. The Complainant was dismissed following an investigation and disciplinary procedure for ‘gross misconduct’ following an incident with a customer and also because he admitted to smoking in the Respondent’s car park premises. The Complainant lodged a claim under the Unfair Dismissals Act 1977, ‘the Act’ with the Workplace Relations Commission, ‘WRC’. An Adjudication Officer, ‘AO’, found that the Complainant had been unfairly dismissed and awarded compensation of €18,000 to be paid to him by the Respondent. The Respondent appealed this Decision to this Court. Summary of Respondent Arguments On 28 June 2018, the Complainant became angry and aggressive with a customer, specifically slamming his hands on the bonnet of the customer’s car plus shouting and gesticulating at the customer. CCTV footage is provided to the Court. The Complainant then went on to smoke a cigarette after the confrontation, contrary to the law and company rules. A written complaint was received from the customer, who stated that he was assaulted verbally and physically. The customer was contacted by Mr. Daragh Fitzgerald, Business Manager, and the complaint was re-affirmed. Mr. Fitzgerald conducted an investigation, following a further conversation with the customer. A thorough investigation took place. The Complainant was represented and all allegations and evidence were put to him and all mitigating circumstances were taken into account. The Complainant confirmed that he had not reported the incident to the Respondent and he accepted that confrontation was not good for the Respondent. In respect of the smoking matter, the Complainant showed a flippant attitude and requested a smoking break when the matter was raised in the investigation. He admitted smoking regularly on the premises, including while inter-acting with customers. The investigation found on the first charge that there had been shouting and abusive body language towards the customer. On the second charge, the Complainant had admitted that he broke the law. The Investigator found that the incident with the customer had caused reputational risk. The Complainant was invited to a disciplinary hearing, advised that the allegations may be considered ‘gross misconduct’ and could result in dismissal. Mr. Dave Whelan, Business Manager, conducted the disciplinary hearing. He determined that the Complainant’s account of the incident with the customer was not consistent with the CCTV footage. On the charge of smoking, Mr. Whelan found that the Complainant had received the Respondent’s disciplinary procedure previously and was aware that smoking was unlawful and unacceptable on company premises. He affirmed the view that the Complainant’s behaviour had caused reputational damage to the company. It was determined that the employment relationship had been undermined. The Complainant was summarily dismissed. The Complainant appealed. An initial appeal hearing was abandoned after a disagreement between the Complainant’s representative and the Appeals Officer. In order to guarantee fair procedures, the Complainant was invited to an appeal chaired by a different officer, Mr. Adam Bidder, Managing Director. Oral arguments were heard regarding mitigating circumstances. Mr. Bidder upheld the decision to dismiss. As per s.6(4)(b) of the Unfair Dismissals Act, this dismissal was not unfair as it resulted from the conduct of the employee. A breach of the Public Health (Tobacco) acts 2002-2015 renders the smoker liable for a substantial fine. It is also an act of gross misconduct under the company’s disciplinary policy. The Court’s attention is drawn to the case ofHestor v. Dunnes Storesin which it was held that the dismissal was justified as the employee had failed to offer a satisfactory explanation for their conduct. InEnva Ireland Ltd. v. Gerry Davis UDD1722the Court accepted that it was unreasonable for an employee not to comply with health and safety measures. The Respondent has a duty of care to staff and customers. As perLooney v. Looney UD 843/1984,the question for the court is whether a reasonable employer would have decided to dismiss. The Complainant’s actions breached the trust between the parties and justified dismissal. The Complainant contributed 100% to his dismissal, (seeMurray v. Meath County Council UD 43/1978andO’Keeffe v. Mid-Kerry Co-Op Livestock UD1304). The Complainant destroyed the trust of his employer, seeKnox Hotel and Resort Ltd. UD 27/2004,and it is imperative that an employer be able to trust its employees, seeAudrey Burtchaell v. Premier Recruitment International Ltd t/a Premier Group,UD 1920/2002. A reasonable employer in the same circumstances would have reached the same determination as reached in this case. The was no suggestion of procedural unfairness. The Complainant’s representative accepted that the procedure was ‘flawless’. The Complainant was represented throughout and all evidence was considered. Without prejudice, even if the Court was to decide that the dismissal was unfair, the Complainant contributed 100% to his dismissal, seeTargonsinki v. G Bruss GMBH UD1209/2011. Summary of Complainant Arguments Prior to his dismissal, the Complainant had a blemish free record with the Respondent. A Google review of car parks was particularly complimentary of the Complainant’s role as a parking host. The Respondent received many mails praising the Complainant’s customer service, including changing flat tyres. The Complainant had also used his initiative to secure additional revenue by offering discounts to small businesses. He had stayed on after his shift to familiarise himself with a new IT system and he assisted colleagues with it, including while off work. He was fully committed to contributing to his employer’s success. The investigation into the incident on 28 June 2018 was seriously flawed. The Complainant never received a copy of the original complaint and his right to know his accuser was denied. Two phone calls were part of the investigation process before the Complainant had any right to reply. The Respondent decided that the Complainant was guilty in advance. A copy of only one CCTV camera footage, out of four, was made available to the Complainant, skewing the representation of the incident. The Respondent refused to contact the customer who stopped her car to sympathise with the Complainant. The Respondent decided to pursue a complaint regarding smoking, despite knowing that smoking had been common practice on the premises. The Respondent took account of statements of employees who alleged that they had never witnessed the Complainant smoking but, in fact, he smoked daily in a place adjacent to the manager’s office, without reprimand. These statements were never provided to the Complainant during the disciplinary process. Signed statements that contradicted this evidence were ignored. The Complainant did not treat the allegation of smoking in a flippant manner. In the course of a five hour meeting, he requested one smoking break and he rejects how this request is characterised by the Respondent. The disciplinary procedure and code of conduct were provided only at the investigation meeting stage. During the incident on 28 June 2018, the Complainant was seeking to protect his own safety from a car that continued to beep and approach in a threatening manner while the Complainant was trying to assist other customers off a ramp. The issue of smoking had not been addressed in the almost 5 years prior to the incident. The decision to dismiss was disproportionate in the circumstances. In the case ofLennon v. Bredin M160/1978,the Employment Appeals Tribunal noted that in cases of alleged misconduct the matter of an employer being saved from liability ‘…applies only to cases of very bad behaviour of such kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer;…’. With regard to the losses incurred, the Complainant earned €536 per week with the Respondent. He was 62 years of age when he was dismissed. It is very difficult for him to secure employment. However, he secured part time employment from February 2019 to July 2019 at €222.65 per week. He also secured a job as a Tour Director, received training and was engaged for 2020 but, due to the pandemic, he was unable to take up this opportunity. He has been engaged again for 2021, subject to pandemic restrictions. His total loss due to dismissal to date is €64,406. At 65 years of age now, the Complainant is above the retirement age in his contract with the Respondent. Re-instatement or re-engagement are no longer practical remedies and the Complainant seeks compensation. The Adjudication Officer found in favour of the Complainant and the Court is asked to uphold this decision. Witness Evidence Mr. Adam Bidder Mr. Bidder is the Managing Director of the Respondent, with responsibility for Great Britain, Northern Ireland and the Republic of Ireland. The witness conducted the appeal of the decision to dismiss. The witness, in dealing with the question of why the Respondent did not seek the assistance of the Gardai in locating the driver of the second car, who witnessed the events of 28 June 2018, noted that the Gardai had been contacted informally but that they could not assist as no crime had been committed. The witness went through the CCTV footage outlining his interpretation of what could be seen. He noted that the Complainant was assisting a customer when he steps back off the pedestrian area and on to the driving area. He pointed out that on the other side there was a vehicle coming down the ramp and, as a consequence, the vehicle coming up the ramp has to move closer to the Complainant. The Complainant is alerted, presumably by the beeping of the car horn, he becomes agitated. He then walks up the ramp, turns 180 degrees, steps forward and slams his hands on the car bonnet. The Complainant then goes to the driver’s window. The car drives away, while the Complainant is gesticulating. The witness expressed the view that the appropriate response of the Complainant would have been to acknowledge that he had stepped out in front of the driver and to have apologised. The witness said that in his fourteen years in the business, he had never seen such a confrontation between an employee and a customer. With regard to the issue of smoking, the witness said that it was, quite simply, not allowed at all. Under cross examination, the witness disputed that the customer’s car was driven at the Complainant. The witness denied that he had disregarded all positives about the Complainant or that he had jumped to a negative conclusion just because there was a customer complaint. He said that all factors were taken into account in the appeal. With regard to the suggestion by the customer, the witness was asked if the evidence substantiated his claim to have been physically assaulted or if this was an exaggeration, to which the witness replied that it was not possible to judge from the CCTV footage. The witness said that other, lesser, penalties than dismissal were considered but that he was embarrassed by the incident and felt that the company’s reputation had been damaged. The witness disagreed with the proposition that it was the customer who had behaved unreasonably. The witness said that he had to take account of the severity of the incident, that the gesticulating and slamming of hands on the car had to be taken into account. The witness said that it was Mr. Fitzgerald who had contacted Gardai. He made no response when it was noted that this was not included in the investigation report. In response to questions from the Court, the witness denied that the footage showed that the customer’s car drove at the Complainant and he disputed that the Complainant putting his hands on the car was simply a natural reaction. When asked if the Complainant would have been dismissed if smoking was the only charge against him, the witness replied that he could not say as this was hypothetical. He accepted that the main issue was the incident with a customer. The Applicable Law 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. (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: (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) the conduct of the employee, Redress for Unfair Dismissal. 7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances: (a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or (b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations undersection 17of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the references in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. ] (1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks. (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, Deliberation In cases under the Unfair Dismissals Act where misconduct is stated as the basis for dismissalthe test for this Court is that which was set by Lord Denning in the British case ofBritish Leyland UK Ltd v. Swift (1981) IRLR 91, a test which was confirmed in thisjurisdiction in Foley v. Post Office (2000) ICR1283. Lord Denning stated that‘If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might have dismissed him, then the dismissal was fair.’ He went on to describe ‘a band of reasonableness’, within which one employer might reasonably take one view; another reasonably take another view but ‘If it was quite reasonable to dismiss him, then the dismissal must be upheld as fair; even though some other employers may not have dismissed him’. Therefore, the test for the Court in cases where misconduct is stated to be the basis for dismissal is to ask does the decision to dismiss fall within the ‘band of reasonableness’? This is often misinterpreted to suggest that the Court need only concern itself with the procedures used by an employer in deciding on a dismissal. Such an interpretation cannot be logical. If the very basis for instigating a process of discipline/ investigation does not stand up to a test of reasonableness that cannot be ignored by the Court. The Court has the benefit of the CCTV footage of the incident that led the Respondent to conduct an investigation into the conduct of the Complainant. What is visible in that footage was summarised very well by the Adjudication Officer in his decision that has been appealed by the Respondent. It is not disputed that the relevant customer was in a hurry when he approached the ramp. The Complainant is assisting a customer at the entry point to the ramp, in front of the approaching customer’s car. The car comes close to or touches the Complainant and he is alerted to its presence, it would appear due to a beeping of the car horn. While the Complainant is still speaking to a customer, the car moves forward and stops within inches of him. The Complainant turns around and places his hands on the car bonnet. There then follows an exchange between the Complainant and the driver. This description of events by the AO is consistent with what the Court has viewed. The witness, Mr. Bidder, drew the Court’s attention to the fact that the incident began when the Complainant stepped off the pedestrian area and that the oncoming car was moving in his direction due to a car approaching in the opposite direction. That is accurate but it does not materially change the description set out above. The witness placed great emphasis on the fact that the Complainant placed his hands on the oncoming car and that he then approached the car driver. In the view of the Court, placing hands on a car that is moving in your direction is a perfectly normal and explicable response to perceived danger. An exchange of words between somebody on foot and the driver of a car that had driven in his direction can scarcely be a surprise nor, in the view of the Court, could it be considered a reasonable basis for a decision to dismiss an employee. It follows, therefore, that the Court does not regard it as the action of a reasonable employer to decide to dismiss an employee in the circumstances of the incident concerned. The Court obviously accepts that smoking in an enclosed space is a breach of the law and that the Respondent’s own policies make clear that it is an act of gross misconduct that can lead to dismissal. The Court is not convinced either by the Complainant’s explanation that the practice of smoking was ignored and that this justifies an argument to disregard his transgression. Employers are required to uphold the law. Smoking in a confined area is a breach of the law and it can be expected that in many, if not most, instances of such a breach, the Court will uphold the right of an employer to dismiss. However, in this case the breach came to attention due to CCTV footage of the Complainant smoking in the aftermath of what could only have been a frightening and distressing incident for him. When asked by the Court if the smoking matter alone would have resulted in the dismissal of the Complainant, Mr. Bidder answered with commendable honesty to say that he did not know. He did accept that the incident with the customer was the main issue, something that seems apparent to the Court, in any event. The Court is anxious not to appear to excuse a flagrant breach of the law, made worse by an argued justification based on previous transgressions. However, in the context of the circumstances, it seems to the Court that a lesser penalty would have been applied by the Respondent if they had viewed the incident with the customer as a frightening experience for the Complainant, which is what the CCTV suggests, rather than as a dismissible offence. Therefore, the Court finds that, taking all factors into consideration, a reasonable employer would not have dismissed the Complainant and that the dismissal was unfair. The Court accepts that in calculating the losses suffered by the Complainant, it has to take into account that his breach of the law by smoking on the Respondent’s premises constituted a substantial contribution by him to his dismissal, notwithstanding the circumstances, and that this needs to be reflected in the level of compensation that the Court awards. The maximum award that the Court could make is two years’ pay, minus the earnings of the Complainant while he was employed part-time. In total, this exceeds €51,000. However, by smoking on the premises, the Complainant contributed to his dismissal. Furthermore, while it is accepted that it is more difficult for a man of his age to find full-time employment and while he is to be commended for securing part-time employment for a period and for securing a role as a tour guide, it is a well established principle applied by this Court that a dismissed employee’s time is not his own and that he is required to apply part of every normal working day to securing alternative employment. The Complainant falls well short of this requirement and this has to be reflected in any compensation to be awarded. Taking all factors into account, the Court concurs with the level of compensation awarded by the AO at €18,000 and directs that this amount be paid by the Respondent to the Complainant. Determination The Decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
