Complainant

Respondent

Parties

Israr  Ahmed

Bidvest Noonan Services Group Limited

Representatives

Des Courtney SIPTU

Mary-Jayne Andrews , Alysha Keers, Elaine Coughlan, Caroline Tuohy, Shane Friel, Niall Loughran, Philip McDonnell.

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-00040896-001

10/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00040896-002

10/11/2020

The Complainant was employed as a Security Officer from 1st October 2009 to 15th May 2020. He was paid €600 per week approx. He has claimed that he was unfairly dismissed, that the sanction was disproportionate also he has claimed minimum notice.

The Respondent has rejected these claims.

The claims relate to the Complainant’s dismissal from the position of Security Officer on 15 of May 2020, as per the WRC complaint form. The Respondent maintains that the dismissal was fair and proportionate as it arose from circumstances where the Complainant was employed as a Security Officer and he unlawfully took goods belonging to the Respondent’s client. As a result, the Respondent respectfully asks the Adjudicator to reject this claim.

Background to the Respondent

Background to the Complainant

The Complainant commenced employment with the Respondent on 1 October 2009 working as a Security Officer until his dismissal on 15 of May 2020. The Complainant was paid in line with the ERO for Security Officers (€11.65 per hour), as set out in S.I. No. 231 of 2017: Employment Regulation Order (Security Industry Joint Labour Committee) 2017. At the time of the dismissal, the Complainant had been working on the premises of the Respondent’s client.

The Complainant was dismissed for gross misconduct on 15 May 2020, after, in the early stages of the Covid-19 pandemic he removed ten bottles of hand sanitiser over two separate shifts from the client site without authorisation. The first incident occurred at approximately 5:30am on 15 March 2020, when the Complainant removed several bottles of hand sanitiser from the mailroom area in the client’s premises, without authorisation. The second incident occurred at approximately 9:40pm the same day, when the Complainant removed several more bottles of hand sanitiser. The Respondent was notified by their client that the Complainant had been viewed on CCTV footage removing hand sanitiser at 9:41pm on 15 March 2020. On inspection of the stockpile of hand sanitiser, the client noticed that there appeared to be further bottles missing. Upon reviewing the CCTV from the previous 24 hours, the Complainant was observed removing more bottles of hand sanitiser earlier the same day at 5.22am. the client provided written statements supporting their observations. On 25 March 2020, the Operations Manager at the Respondent, met with the Complainant to inform him that he would be placed on suspension with full pay pending investigation. A follow up letter was sent to the Complainant to confirm this in writing on 1st April. By letter dated 7 April 2020, the Complainant was invited to attend an investigation meeting into: Alleged theft of hand sanitiser on two separate occasions. Alleged taking part in activities that causes reputational damage to the business with their client. Alleged taking part in activities that causes the Company to lose faith in him as an employee – specifically that if the above allegations are proven they represent a breach in trust in him as an employee of the Company. The letter informed the Complainant of his right to bring a representative with him to the meeting. It also enclosed various items including a copy of the statement from the client and time-gate rosters screenshots. The Complainant was advised that he would be contacted to make arrangements to view the CCTV footage. The Complainant was invited to view the CCTV footage of him removing the bottles of hand sanitiser, but he did not attend.  The investigation meeting was held on 24 April 2020. The investigating manager and the Complainant was accompanied by his Siptu representative. The Complainant confirmed that he had received the letter with the allegations and understood them. The Complainant admitted that he had taken 8 bottles of hand sanitiser on the first occasion and 2 bottles on the second occasion, the bottles were half a litre each. The Complainant stated: “I couldn’t find any hand sanitiser in the shops, I knew there was two pallets in the post room”. The Complainant confirmed that the client’s report on the two incidents was accurate. It was noted that, on the day the hand sanitiser was taken the Complainant had agreed to go home and retrieve them, he returned 7 bottles leaving 3 outstanding.  An investigation report was issued dated 27 April 2020 recommending that the matter proceed to disciplinary. The investigation report concluded that 10 bottles of hand sanitiser was an excessive amount for the Complainant to take, however the Complainant was remorseful for his actions.  By letter dated 28 April 2020 the Operations Manager for the client site, invited the Complainant to a disciplinary meeting scheduled for 6 May 2020. The letter enclosed a number of items including the minutes from the investigation meeting and advised that if the allegations were found to be true, it may constitute gross misconduct which could result in disciplinary action up to and including summary dismissal.  At the disciplinary meeting on 8 May 2020, the Complainant was again accompanied by his Siptu representative. Again, the Complainant admitted that he had wrongly taken 10 bottles hand sanitiser. The Complainant declined to view the CCTV footage as he stated that at the time of taking the hand sanitiser, he knew that he was being captured on camera but he took the items in a panic. By letter dated 15 May 2020 the Complainant was advised that he had been summarily dismissed for gross misconduct. The letter advised that the removal of 10 bottles of hand sanitiser equated to 5 litres and that this was an excessive volume for personal use. In any event, even if there was a shortage of hand sanitiser it was available to buy soon after. The letter advised the Complainant of his right to appeal. By email of 21 May 2020 the Complainant’s representative lodged an appeal. The Complainant was invited to an appeal hearing to be held on 26 May 2020 with the Strategic Account Director. At the appeal hearing the Complainant again apologised for his actions. The Complainant’s representative argued that the sanction was disproportionate.  By letter dated 3 June 2020 they advised the Complainant that the original decision had been upheld.  The Complainant’s representative responded to this, repeating the grounds of the appeal and requesting that they advise him as to what consideration was given to sanctions less than dismissal. They responded advising that they believed dismissal to be a proportionate sanction. They stated that the Complainant’s remorse and the mitigating circumstances must be viewed in conjunction with the fact that the Complainant was employed as a security guard. In this regard they referred to the Security ERO which outlines that the primary function of a security guard is to prevent theft. They stated that what he did is a fundamental breach of the role he is employed to perform they are of the mind that the trust and confidence in him to perform the primary functions of a security officer is gone. The business can’t have the confidence to place him on a client site for the purposes of loss prevention in the knowledge that he has stolen client property previously. They referred to the Respondent’s policy which provides that a final written warning may apply in a case of gross misconduct if there are sufficient mitigating circumstances. However, they concluded that there were not sufficient mitigating circumstances in this case to warrant a sanction less than dismissal. On 10 November 2020, the Complainant submitted the within claims to the Workplace Relations Commission, alleging that he had been unfairly dismissed and that he had not received his statutory minimum notice period.

Respondent Arguments

 In accordance with Section 6(4)(b) of the Unfair Dismissals Act 1977 – 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee. 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” 5.2. As is evident form the incidents outlined above, the Complainant’s conduct is clearly not of a standard that any reasonable employer would consider acceptable. On two separate occasions, the Complainant stole bottles of hand sanitiser from the client of the Respondent. The Complainant, in his complaint form argues that the dismissal was substantively unfair. However, the Respondent refers to Looney & Co. Ltd v Looney, UD 843/1984 (Appendix 13), which lays out the standard for assessing the fairness of a dismissal, which is that of a reasonable employer: It is not for the Tribunal to seek to establish the guilt or innocence of the Complainant, nor 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 would 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 decision be judged. It is clear that a “reasonable employer in the same position and circumstances” would have done and decided as the Respondent did. Similarly, to the Looney case, the Complainant has stolen whilst in the course of employment. At the core of any organization is the need for satisfactory standards of behaviour and conduct. The Complainant has shown, repeatedly, that he was not willing to conform to these standards and therefore the Respondent was left without any alternative but to dismiss him.  The Respondent would also argue that the Complainant’s actions have led to the complete breakdown in trust in their employment relationship. The importance of trust between employer and employee is something that cannot be overlooked, and, in this case, the Complainant has clearly breached this vital cornerstone of any good employment relationship by stealing from a client of the Respondent whilst being employed as a security guard. The actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying summary dismissal. This position has been upheld by the Employment Appeals Tribunal on a number of occasions, including in Knox Hotel and Resort Ltd, UD 27/2004 (Appendix 14), where the Tribunal stated that: [The Complainant’s actions] destroyed the respondent’s trust and confidence in the Complainant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal. When trust has been undermined, as it has been in this case quite clearly, sustaining the employment relationship is no longer possible. When the breach of trust comes about by virtue of the employee’s actions, then it is fair and reasonable in the circumstances for the company to take the decision to summarily dismiss for gross misconduct. Furthermore, the Complainant was employed as a security guard and certain conditions of his employment were determined by S.I. No. 231 of 2017, the employment regulation order for the security industry. Set out in this employment regulation order are the primary functions of security operatives: (i) The prevention or detection of theft, loss, embezzlement, misappropriation or concealment of merchandise, money, bonds, stocks, notes or other valuables. (ii) The prevention or detection of intrusion, unauthorised entry or activity, vandalism, or trespass on private property either by physical, electronic, or mechanical means. (iii) The enforcement of rules, regulations and policies related to crime reduction. (iv) The protection of individuals from bodily harm.” The Complainant’s actions are clearly in contravention to the primary functions set out for security workers in the employment regulation order. The Complainant partook in the very actions for which he is employed to prevent, and the Respondent was left without any reasonable alternative but to dismiss him for his actions.  The Complainant, in his complaint form argues that the dismissal was procedurally unfair. The Respondent rejects this claim. All aspects of the disciplinary investigation and disciplinary process were conducted in accordance SI 146 of 2000. The Complainant was given the opportunity to state his case. The Complainant was afforded the right to representation at all meetings under the disciplinary procedure, including at investigation stage and at the appeal stage and availed of this. The Complainant was also informed of the possible disciplinary sanctions arising from the disciplinary process. All the evidence in its entirety was considered, including the Complainant’s representation before any decision was made or action taken. In any case, the Complainant admitted his wrongdoing in the incidents that led to his dismissal, as can be seen in . In light of all of the above, the company believes the dismissal of the Complainant to be procedurally fair in all respects.  The Complainant, in his complaint form argues that he did not receive his statutory minimum period of notice on the termination of his employment or pay in lieu thereof. The Respondent refers to Section 8 of the Minimum Notice and Terms of Employment Act 1973 which states that: Right to terminate contract of employment without notice. 8.—Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.” The Complainant’s actions amounted to gross misconduct and justified his summary dismissal. Therefore, he was not entitled to notice or pay in lieu thereof.

Contribution:-  Without prejudice to the foregoing, should the Adjudicator find in favour of the Complainant, the Respondent contends that the actions of the Complainant contributed fully to his dismissal. Accordingly, it is the Respondent’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts 1977-2015. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in An Employee v An Employer UD492/2008 (Appendix 8.15), where the Tribunal stated that “simply because there was a flaw in procedures does not automatically mean that a dismissal was unfair.” In this case, the Tribunal found that substantive issues outweighed the procedural deficiencies in this case and ultimately found that the appeal was upheld, and the dismissal ruled as fair.

The Respondent submits that the dismissal was substantively and procedurally fair. The Complainant's dismissal resulted wholly from his own conduct and we respectfully request that the Adjudication Officer find in the favour of the Respondent. The Respondent reserves the right to adduce any further information during the course of the investigation.

The Representative for the Complainant stated that should the Adjudication Officer find in his favour he is seeking:  Re-instatement as remedy under the Unfair Dismissals Act, 1977 or Six week’s minimum notice payment under the Minimum Notice & Terms of Employment Act, 1973.

Background:

The Complainant commenced employment on 1st October 2009 as a security officer, a position he held until his dismissal on 15th May 2020. Throughout his period of employment he worked on various sites.  On 15th March 2020 he removed several bottles of hand sanitizer from the client’s premises, the vast majority of which were returned on the same date.  On 25th March 2020 he was suspended from employment pending investigation. The investigation meeting took place on 24th April 2020, followed by a disciplinary meeting on 8th May 2020. He was summarily dismissed from his employment on 15th May 2020 on the grounds of gross misconduct. On 26th May 2020 he unsuccessfully appealed against his dismissal.

Context:  In March/April 2020 Ireland was hit by the initial effects of the COVID-19 pandemic. The country was placed on lockdown and those who could work from home were expected to do so. Despite the fact most of the AIB staff were also working from home, this was not an option for him as security services continued to be provided. He is a native of Pakistan. He lives in Dublin 12 and, as is common amongst such workers, he shares a house with several other family members/relatives, all of whom are also Pakistani nationals. It should be remembered that during the initial phase of the pandemic Ireland’s rates of infection and death were rising rapidly. His living arrangements, although benign in normal circumstances, now posed a considerable threat to him and those with whom he shared the home. Also, those of his family still residing in Pakistan live in poverty and are totally reliant upon his earnings. Each month he was sending a minimum of €800 home to provide for his large family. Government guidelines focused on hand cleanliness and the use of hand sanitiser which, during the early stages of the pandemic, was impossible to secure. Despite the requirements to continue to provide security services, and the threat from the pandemic the Respondent did not supply hand sanitiser to him. Subsequent events, particularly within the meat industry where similar living arrangements to those of the Complainant led to the development of COVID-19 clusters of infection, prove that his initial concerns were prescient.

Union Case: COVID-19 is a killer pandemic. Following the introduction of the vaccination programme in early-mid 2021, death rates/hospitalisations etc. have fallen by comparison to April 2020. However, his dismissal must be seen in the context of the time in which it took place. His previous eleven years’ employment were incident free with no previous disciplinary sanctions or issues of any description. It is noted the inclusion by the employer of S.I. No. 231 of 2017, presumably to demonstrate his alleged breaches of same. However, this employer would do well to note that the S.I. covers more than definitions. Often, he received requests from his employer to work 60 to 70 hours per week and, on numerous occasions, received requests at short notice, to work 24 hour-shifts. He always complied. The Adjudication Officer will search in vain for any clause within the S.I. providing for such hours. As confirmation of hours of work, a number of his payslips are included. He made no attempt to deceive. He removed the bottles from under the CCTV cameras in the full knowledge that they were overhead. Neither did he take the bottles for personal profit or sale. His actions on 15th March were totally out of character and were based on an all-consuming fear, not just for his health and safety, but for his life and the economic wellbeing of his family in Pakistan. Meeting minutes also confirm that he acknowledged, and apologised to his employer for, his actions. Also, he returned seven of the ten bottles on the same day upon which he had removed them, with a commitment to return the final three. However, his dismissal took effect in the interim. Unfair Dismissals Act, 1977. He believes that he was unfairly dismissed for the following reasons: There were no disciplinary sanctions in place at date of dismissal. At the date of his dismissal there were no disciplinary sanctions in force. In such circumstances, management had a duty to give serious consideration to any other sanction short of dismissal. However, they were precluded from doing so by their own Disciplinary Procedure. It will be noted that dismissal is the only sanction which can be considered for cases of alleged gross misconduct. No sanction short of dismissal is possible, which raises serious questions about, for example, the purpose of any appeal and the established principle that any sanction must be proportionate to the alleged offence. In the case of the Respondent there is only one sanction permissible in circumstances such as the instant case. This issue was raised by the Union at both the disciplinary and appeal meetings. The minutes of each will confirm management’s acceptance that consideration of a sanction other than dismissal is simply not possible. Management breached the terms of SI 146/2000. 22. SI 146/2000 provides as follows: ‘…procedures…must comply with the general principles of natural justice and fair procedures which include: That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances. The phrase ‘any other relevant or appropriate evidence, factors or circumstances’ is important. COVID-19 presents a whole new set of ‘factors’ and ‘circumstances’, and many industrial relations practitioners are predicting that the WRC/LC will deal with the economic and industrial implications of this pandemic for years to come. In the instant case management considered his actions but the decision to dismiss took none of the COVID-19 ‘factors’ or ‘circumstances’ into consideration. The dismissal was disproportionate to any alleged offence. In Frizelle v New Ross Credit Union Ltd [1997] IEHC 137 the High Court (Flood J) stated: ‘The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee’. The ‘gravity and effect of dismissal’ on him was devastating for him and his family. He simply could not risk contracting COVID-19. His overwhelming desire at all times was to continue working so that he could continue to provide for his family in Pakistan. 26.Section 6(1) of the Unfair Dismissals Act states: ‘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’. The Act, like S.I. 146/2000, requires that ‘all the circumstances’ be considered. As outlined above, we contend that, in this case management’s failure to do so, renders this dismissal unfair. Section 6 (7) of the Unfair Dismissals Act, 1977, as amended by the Act of 1993 states: “Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer or the Labour Court or the Circuit Court, as the case may be, considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal. In this case the employer failed to comply with important requirements of the Unfair Dismissals Acts or SI 146/2000. All the relevant case law requires that fair procedure and natural justice is an absolute imperative in cases of dismissal. In all of the circumstances he believed that he was unfairly dismissed from his employment and he is seeking reinstatement as the appropriate remedy.

 CONCLUSION:- The Complainant believes that the dismissal was disproportionate to the alleged offence. In effect he was dismissed in respect of three bottles of hand sanitiser. He provided eleven years sterling service, with no previous disciplinary issues, during which he complied with all of the requests of his employer, some of which were most unfair. In such circumstances, dismissal seems harsh and unfair. If he is guilty of a crime, it is a crime of passion in which his overriding desire was to protect the economic wellbeing of his impoverished family in Pakistan. In light of the above and taking all the circumstances into consideration it is his respectful request that the Adjudicator finds in his favour and decide accordingly.

Substantive Matter

I note that the facts of this case are not in dispute.

The Complainant has accepted that he took 10 bottles of hand sanitiser from the client company of the Respondent where he was employed to protect its premises and property.

I note that when he was confronted with the evidence of removing the property from the site he admitted to his actions and returned seven of the bottles.

In his defence his stated that this was a ‘crime of passion’ as he needed the hand sanitiser for his family/friends where he shared a home.

He was very remorseful for his actions and it has had major implications for his family at home where he sent much of his earnings to support them.

He has argued that these are very difficult times with the implications of the Covid pandemic.

I find that the Complainant was employed as a security officer and his total responsibility was to protect the client’s premises and property.

I find that he failed to do so.

I find that he removed ten bottles of hand sanitisers in two tranches.

I find that he did not own up to this until he was confronted by management.

I find that he did not pay for these goods in advance of taking them.

I find that he is employed in a position of trust and he has breached that trust.

I find that in this case case, you cannot quantify dishonesty based on the value of what was taken.

I find that the Complainant has fundamentally breached his contract of employment.

I find that the dismissal was substantively fair.

Procedural matters

I note that the Complainant was informed of the charges made against him.

I note that he was placed on suspension with full pay pending the conclusion of the investigation.

I note that he was offered the right to representation, the right to view the CCTV footage, which he declined.

I note that he was represented by his trade union official at the disciplinary hearing and the appeal hearing.

I note that he was summarily dismissed for theft and breach of trust.

I note that he was offered the right of appeal which he accepted.

I note the case made by his representative, the crime of passion, the fear of Covid, the need to protect his family and the alleged breaches of the Working Time Act.

I find that the Complainant was afforded fair procedure throughout this process.

I find that under the circumstances, dismissal was a fair outcome and was proportionate. The Complainant stole from his employer’s client company. He was employed to prevent this and he failed. He fundamentally breached his contract of employment and the trust placed in him.

In all the circumstances I find that this dismissal was procedurally fair.

2)Minimum Notice and Terms of Employment Act CA 40896-002

Summary of Complainant’s Case:

Summary of Respondent’s Case:

Findings and Conclusions:

I have found above under the Unfair Dism8isakls claim that the dismissal was not unfair.

I find that the Complainant was summarily dismissed.

I find that the Respondent was entitled to terminate the employment without notice in this case.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent was entitled to terminate the employment without notice due to the misconduct of the Complainant.

I have decided that this complaint was not well founded and so it fails.

Dismissal for theft of hand sanitisers in Covid setting, minimum notice