UDD229

SUBJECT:

1.Appeal of Adjudication Officer Decision No(s). ADJ-00026268, CA-00033192-001.

BACKGROUND:

2.The Worker appealed the Decision of the Adjudication Officerto the Labour Court on 4 June 2021 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place in a virtual setting on 27 January 2022. The following is the Determination of the Court:-

DETERMINATION:

This is an appeal by Mr David Murray from a decision of an Adjudicator Officer (ADJ-00026268) dated 29 May 2021 under the Unfair Dismissals Act 1977 (“the Act”). The Adjudicator held there was no breach of the complainant’s rights that rendered the dismissal unfair and found the complaint was not well founded.

The Notice of Appeal was received by the Labour Court on 03 June 2021 and a remote hearing conducted on 27 January 2022. For ease of reference the parties are referred to in this Determination using the same designation as they had at first instance. Hence, Mr David Murray is referred to as “the Complainant” and STT Risk Management is referred to as “the Respondent”.

Background

The Complainant commenced employment on 21 November 2016 and worked as a security agent for the Respondent, which provided security services on the Luas light rail system. He was dismissed for gross misconduct in September 2019, following an investigation into allegations of misconduct and gross misconduct.

Submission of the Respondent

The Respondent submits that the Complainant was a good security agent, who showed initiative and intelligence, however, his performance and attendance were tarnished by ongoing issues. Management sought to address these issues through counselling sessions and performance reviews, however, the Complainant became withdrawn and difficult following his failure to secure promotion to a team leader position.

Thereafter, followed a series of incidents the most serious of which occurred on the night of 5 June when the Complainant was captured on CCTV footage cycling around Jervis Street Luas platform on a child’s bike, for over a period of 11 minutes, weaving in and out of awaiting passengers, colleagues, Luas staff and members of the public.

He was on duty and in uniform. This event on its own was a serious breach of health and safety rules, Luas bye laws and company policies.

The other incidents of poor behaviour occurred on 26 March 2019 when the Complainant stood motionless on a tram for the duration of his patrol; on 3 June 2019, when he refused a reasonable instruction from a Team Leader; and a further incident of unprofessional behaviour with Team Leaders on 13 June 2019.

The Complainant was advised following the March incident on a tram, that it would be overlooked, provided no further incidents occurred. The Respondent attributed the Complainants poor behaviour on these occasions to his disappointment at not being promoted to a team leader position.

The Respondent submits that throughout this period the Complainant was on a final written warning for poor timekeeping and attendance. Only four weeks prior to the incident on the night of 5 June, the Complainant had a final written warning reduced from twelve-months to six months duration on appeal. The warning was accepted by the Complainant after it was reduced and not appealed further.

The Complainant was fully aware that it was a final written warning.

The Respondents submits that of the four allegations, the most serious related to the allegation on 5 June when the Complainant was observed riding a bicycle on the platform of a Luas station.

The Respondent became aware of this incident when it was brought to their attention on 10 June 2019 by the company with which they have their contract. Before an investigation could proceed, the Complainant was certified sick and was on leave from 16 June to 12 July. An investigation was progressed promptly in his return from leave.

The Complainant attended an investigation meeting on 29 July 2019, conducted by Mr Patrick Whyte, Operations Manager, in relation to his behaviour on the four specified dates.

Mr Whyte found that the Complainant did not contest the allegations put to him about unprofessional behaviour on a tram on 26 March, and on the Luas platform on 5 June. The Complainant referred to personality difficulties with certain team leaders, in defence of his behaviour on both the 3 June and 13 June. Mr Whyte recommended that a formal disciplinary hearing be initiated.

The Complainant attended a disciplinary meeting on 11 September 2019, conducted by Mr Harry Seymour, Security Services Director, at which he was given an opportunity to put forward any mitigating evidence in his defence.

Following that meeting a decision was made to dismiss the Complainant from his employment for gross misconduct. The Complaint appealed that decision, which was heard by Mr Eamonn Gibney on 15 October 2019. The decision to dismiss was upheld.

The Respondent submits that the investigation and disciplinary process were conducted in line with the Company’s’ disciplinary procedure. There were substantial grounds to dismiss the Complainant for gross misconduct, and that decision was within the range of reasonable responses a reasonable employer would consider in similar circumstances.

The Complainant’s behaviour on 5 June 2019 on a platform in use by commuters was dangerous and reckless. A tram system incorporates a fixed light railway powered by electricity that interacts with other traffic and road users. There is an increased risk of accidents that could result in serious injury or death if someone is knocked in-front of a travelling tram.

The Luas light rail infrastructure is covered by by-laws, one of which forbids the use of skateboards or other devices with wheels from being used on the platforms. The Complainant’s role as a security agent was supposed to prevent this type of behaviour. He was the architect of his own downfall.

Furthermore, the Complainant’s general behaviour was unacceptable. He was on a final written warning, which had been reduced on appeal, when he was investigated for multiple incidents of unprofessional behaviour.

Dismissal could have ensued following a finding against him for continued and ongoing offences, even if gross misconduct was not alleged against him.

The Respondent submits that other avenues short of dismissal were considered. Demotion was not an option, as there was no level below the Complainant’s grade. The company had exhausted all reasonable attempts to performance manage the Complainant. It demonstrated the extent it went to in trying to get him to perform in a consistent manner.

The complainant’s final written warning was reduced from 12 to 6 months on appeal, which demonstrates the company were willing and trying to work with him, as he was a good security officer when he was focused and diligent.

There was no agenda to dismiss him, and the fact that he was dismissed two weeks before his final written warning expire was something that was in his control. The company disciplinary procedure provides that an employee who is found to be guilty of gross misconduct will be summarily dismissed without notice.

The investigation and disciplinary process was conducted in line with company procedures and in accordance with SI 146/2000. The Complainant was afforded fair procedures, he was informed of the allegations against him, he was afforded representation which he availed of in the form of his union representative. He was afforded the opportunity to put forward evidence and mitigation. He was informed of the outcome at each stage of the process and the rationale behind this. He was afforded an internal appeal by an independent person which he exercised.

Complainants’ Submission

SIPTU, on behalf on the Complainant, accepts that the matter under investigation was a serious matter, but takes issue with the way that the investigation was managed.

It submits that management conducted a fundamentally flawed investigation and disciplinary process, that breached the terms of SI 146/2000 and the Complainants right to fair procedures and justice. Furthermore, the sanction of dismissal was disproportionate to any alleged offence.

SIPTU submits that the process was flawed in a number of ways.

The March incident was definitively dealt with by Mr Whyte at that time and to re-examine the matter at a later point constitutes a type of double jeopardy, which was manifestly unfair. Mr Whyte also investigated the later incidents and so could not be viewed as impartial in his findings. There was a lack of records throughout, with no agreed minutes of meetings.

SIPTU further submits that if the matter under investigation was as serious as asserted, it should have been handled in a different manner. The established jurisprudence takes a very restrictive view of what constitutes gross misconduct justifying dismissal. In support of their position SIPTU referred the Court to the case of Lennon v Bredin M160/1978, where the Employment Appeals Tribunal stated:-

“Section 8 of the Minimum Notice and Terms of Employment Act 1973 saves an employer from liability for minimum notice where the dismissal is for misconduct. We have always held this exemption applies only to cases of very bad behaviour of such a kind that no reasonable employer could be expected to tolerate the continuance of the relationship for a minute longer. We believe the legislature had in mind such things as violent assault or larceny or behaviour in the same sort of serious category. If the legislature had intended to exempt an employer from giving notice in such cases where the behaviour fell short of being able to fairly be called by the dirty word ‘misconduct’ we have always felt that they would have done so by adding such words (after the word misconduct) as negligence, slovenly workmanship, bad timekeeping, etc. They did not do so”.

While the Respondent has discretion over whether or not to suspend an employee pending an investigation, the failure by the employer to suspend the Complainant in this case is of crucial importance and calls into question the allegation of gross misconduct.

The Complainant continued to work unimpeded, despite the alleged seriousness of the matters under investigation. SIPTU contends that if the allegation of gross misconduct is brought into question, a question then arises as to whether the decision to dismiss was disproportionate to the alleged offence.

SIPTU also submits that the Complainant was on a final written warning, with two weeks remaining, when he was dismissed without notice for gross misconduct. If he had received two weeks’ notice, his final written warning would have expired. In this case, SIPTU submits that the sanction of dismissal was disproportionate to any alleged offence.

The Complainant seeks compensation from the Court as redress, rather than re-instatement or re-engagement. Following the Complainant’s dismissal in September, he sought to upskill rather than seek alternative employment. It is accepted that in such circumstances no loss arises and the maximum award the Court can award is four weeks’ pay, however, the Complainant seeks that the Court make a finding that his dismissal for gross misconduct was unfair.

The Relevant Law

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

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,
(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.

Section 6(7) of the Act provides:

“(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour 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, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.”

Deliberation & Findings

Where the fact of dismissal is not in dispute, it is for the Respondent to establish that a dismissal was not unfair. In this case, the complainant does not deny the allegations made against him and accepts the serious nature of those allegations. He states, however, that the decision to dismiss was disproportionate, and that the procedures followed were flawed, making the dismissal fundamentally unfair.

The role of the Labour Court in cases of unfair dismissal, is not to consider what it would have done in the same set of circumstances, but rather to assess whether the response of the employer lay within a range of reasonable responses.

In assessing if a dismissal falls within a ‘band of reasonableness’, the Court applies the test of reasonableness to the nature and extent of the enquiry carried out by the respondent prior to the decision to dismiss the claimant, and the conclusion arrived at by the respondent that, on the basis of the information resulting from such enquiry, the claimant should be dismissed.

Guidance is provided to employers in S.I. 146/2000, which is a Code of Practice for disciplinary and grievance processes.

The essential elements of the Code of Practice set out that allegations must be investigated; a worker under investigation must be afforded the right to be heard; the worker has a right to be represented at all stages; if the investigation finds that there is a case to answer, there must be a separate disciplinary hearing and there must be a right of appeal of any sanction.

In this case, the Complainant asserts that the procedures followed by the Respondent were flawed and that he was denied general principles of natural justice.

The Complainant asserts that Mr Whyte’s involvement in the investigation process could not be viewed as impartial, and that his decision to re-examine the March incident constitutes a type of double jeopardy.

The Respondent disputes the assertion that the March incident was definitively dealt with at the time. It submits that the Complainant engaged in unprofessional behaviour on a tram while on a final written warning, and was advised that the incident would be overlooked, provided no further incidents occurred.

When further issues arose, the March incident was investigated along with the other matters, as set out in the investigation letter. The Respondent submits that it was not unreasonable for the March incident to be included as part of the wider investigation, nor was it unreasonable for Mr Whyte to conduct that wider investigation.

The company is a small one, employing four office-based staff, two of which were managers. Mr Whyte was one of those two managers. He conducted the investigation process, while the other manager, Mr Sweeney, conducted a separate disciplinary process.

Neither party proffered witness evidence in relation what conversation took place between the Complainant and Mr Whyte following the incident in March, nor is there a record of that meeting.

The Court considers that in circumstance where it is not disputed that the Complainant was on a final written warning, nor is it disputed that the Complainant behaviour on a tram in March was unprofessional, it was not inappropriate for Mr Whyte to include the March incident in the wider investigation, nor was it inappropriate that he conducted the investigation, given the small size of the management team.

The Court notes that Mr Whyte’s role as an investigator was to establish findings of fact. He did not conduct the disciplinary hearing or make the decision to dismiss the Complainant. In such circumstances, the Court is satisfied that there was no significant procedural flaw that could render any subsequent dismissal to be unfair.

In asserting that the procedures followed by the Respondent were flawed, the Complainant took particular issue with the fact that he was dismissed for gross misconduct in circumstances where he was not placed on suspension pending the completion of the investigation and disciplinary process, and that he was allowed to continue working on until the date of his dismissal. He asserts that this brings into question whether the matter can be considered to be gross misconduct.

Suspension is not a neutral act and in Governor of Bank of Ireland v Reilly [2015] ELR 229 Noonan J went further than any previous authority on the caution to be exercised with suspending an employee pending an investigation:-

“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.”

In the case before this Court, the Respondent submits that it was influenced by the O’Reilly case in assessing whether or not to suspend the Complainant pending investigation.

It found it was not necessary to do so, as it was satisfied that it could protect the reputation of the company and the Complainant during an investigation process without suspending him, through close supervision by his team leaders.

While SIPTU accepts that the Respondent has discretion over whether or not to suspend an employee pending an investigation, it contends that if the allegation of gross misconduct is brought into question, the question then arises as to whether the decision to dismiss was disproportionate to the alleged offence.

It is the view of the Court that there is no obligation on an employer to suspend an employee during a disciplinary process where there is an allegation of gross misconduct. The decision to suspend or not will depends on the facts of each case. In this case, the Court is satisfied that the Respondent took a considered approach to the question of whether or not to suspend the Complainant pending the conclusion of the investigation and disciplinary process.

They opted for an approach that was less damaging to the Complainant’s reputation by leaving him in his role until the conclusion of that process, and so sought to balance their needs with the rights of the employee. In the view of the Court, the fact that a person is not suspended pending an investigation does not automatically prevent a finding of gross misconduct at a later point.

Having had regard for all of the circumstances of this case, the Court finds that the investigation and disciplinary process was conducted in line with the Respondent’s disciplinary procedures and that those procedures were substantially in accordance with fair procedures and natural justice. The Complainant knew at all times what the allegations made against him were.

He was provided with copies of the Investigation Report and given an opportunity to view relevant CCTV footage. Although minutes were not agreed following each meeting, there was no dispute about what transpired at of each stage of the investigation and disciplinary process. Throughout both processes, the Complainant was afforded the right to be heard.

He had the right to representation, which he availed of in the form of his union representative. He was informed of the outcome at each stage of the process and the rationale behind this. He was afforded the right of appeal which he exercised.

The Court is of the view that the actions of the Complainant on 5 June 2019 were reckless, and that it was not unreasonable for the Respondent to decide that the Complainants behaviour constituted gross misconduct.

In such circumstances, the Court is satisfied that the Respondent had substantial grounds to justify its decision to terminate the Complainant’s employment summarily for gross misconduct, and that the decision to dismiss was not disproportionate. The Court is also satisfied that the investigation and disciplinary process complied with the requirements of fair procedures and natural justice.

Having regard to all of the circumstances of this, the Court accepts the Respondent’s submission that the sanction of summary dismissal imposed on the Complainant was within the band of reasonable responses open to a reasonable employer in the circumstances.

On the basis of the foregoing, the Court finds that the complaint of unfair dismissal contrary to the Act of 1977 is not well-founded. Accordingly, the decision of the Adjudication Officer is upheld.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
TH	______________________
18 February 2022	Deputy Chairman