Complainant

Respondent

Parties

Ciaran  Kelly

Securitas Security Services (Ireland) Limited

Representatives

Liam Sheridan Liam J. Sheridan & Co. Grainne Quinn, BL                                       Sean Mulligan, Witness

Conor O'Gorman – (IBEC)  TO ISSUE BY EMAIL TO: cases@ibec.ie                         Michelle Collins, HR Manager          Brian Doyle, Key Account Manager   Gail Maher (Employer Executive, IBEC)  Declan Thomas (IBEC) DAY  2           Tiago Ra Bola (Witness) DAY 2

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-00044208-001

19/05/2021

I confirm the hearing was heard over two days. The hearing was reconvened for a second day due to number of witnesses and also the technical difficulties by a witness on Day 1.

At day one of the hearing the company agreed to correcting the spelling of the company name and the company agreed to same, so it was updated from “Service” to “Services” on all the documentation relating to this case.

At the outset of Day 2 (15 November 2022) of the hearing I reconfirmed that the company name was correct, and the spelling was corrected on the form and then confirmed as correct and reminded the parties of the principals of the hearing including that it was a public hearing with evidence given under oath or affirmation and the parties would be named in decision.

The evidence heard on Day 1 by Ms Michelle O’Connor, HR Manager for the Respondent and paused starting Mr Brian Doyle’s evidence due to technical issues.  Therefore, we proceeded with his evidence on day 2.

There were also extra attendees at Day 2 of hearing namely, - Mr Declan Thomas (IBEC) for Respondent and Mr Tiago Ra Bola for the Respondent.

A new IBEC representative Mr Declan Thomas was present.  He stated the IBEC representative dealing with this case, Mr Conor O’Gorman was double booked for today’s hearing as he also had Labour Court hearing also today and had requested a postponement which was not granted. So, on the hearing date he has requested a postponement as it was Day 2 of hearing and his IBEC colleague has worked on and heard Day 1 evidence. 

On response Ms Grainne Quinn, BL for the Complainant said they were not on notice of this request to ask for a postponement today.  Ms Quinn also stated it is not unusual to have a separate new person to assist in managing from representative today.  She also hadn’t the opportunity to consult with her Solicitor or client reference this request for postponement.  I allowed her this time and she reverted with request to continue the hearing today due to cost of legal representatives etc. I heard all the requests for a postponement and confirmed I was continuing with the hearing as all the parties had been notified correctly and IBEC representative had opportunity to be briefed by IBEC colleague and be prepared accordingly therefore, I refused the request for postponement.

The dismissal was confirmed by Securities Security Services Ireland (Limited) as occurred therefore the burden of proof was theirs to confirm it was a fair dismissal, so they proceeded with their case accordingly.

Mr Ciaran Kelly, Complainant stated he worked as a Security Officer working guard duty on site at the client premises. An incident took place on the morning of 9 December 2020 when a contractor approached the guardhouse where he was based.  He gave his name and Company he worked for, advising that he had an appointment on site with a representative from the client premises that morning.  Mr Kelly confirmed the individual showed an email on his phone which confirmed details of his appointment, but he said that he needed to get access to a toilet on an emergency basis.  The visitor in question was clearly in distress and I told him to go to Reception in the main building and use the toilet and return to me to get his pass to enable him to proceed on to the main building for his meeting. 

Mr Kelly contacted his supervisor who is based in the main building to advise him that this individual was on his way and his supervisor told him not to allow him admission, but he explained the sensitivity of the situation to him and that he was en-route to the main building. The individual returned to the guardhouse within 10 minutes.  He was processed and given his pass to continue on to his meeting. 

Mr Kelly continued working for the remainder of the day but got a call that night from the Area Manager to say that he was being suspended due to breach of contract pending an investigation. Mr Kelly stated it is clear from the subsequent communication that the Respondent had already formed the opinion that there was gross misconduct on his part not taking into consideration what were established practices around what security officers are to do in such circumstances. During the subsequent investigation and disciplinary hearing there were clear misrepresentations of what happened and what was said in communication with other staff.  Mr Kelly stated that it is clear that the Respondent had already decided they were going to terminate his employment.  The Respondent refused to give the submissions made by him at investigation hearing, disciplinary hearing and appeal hearing any reasonable consideration. 

Given the nature of the incident and the accepted practice that had developed the decision to terminate his employment was completely disproportionate to the alleged breach of duty on his part.

Ms Grainne Quinn, BL, the Complainant representative confirmed that Mr Kelly commenced working for Securitas Security Services Ireland (Limited) on the 15 March 2013 in the role of security officer for a facility management company. The terms and conditions of employment were presented. Mr Kelly transferred to the employment of the Respondent on the 5 March 2017. Despite this transfer Mr Kelly never received the Respondent’s employee handbook until the 7 January 2021 despite having requested same through his Co-Ordinator Sean Conway on a number of occasions. Mr Kelly worked 36 hours per week at the site. Mr Kelly was paid €864.20 gross fortnightly. On the 25 February 2021 the Respondent dismissed Mr Kelly unfairly.

Ms Grainne Quinn, BL stated during Mr Kelly’s time working for Securitas Security Services Ireland (Limited) it was always emphasised by the Respondent the importance of treating everyone with whom he came into contact in the course of his employment with dignity. This is clear from section 2 of the Assignment Instructions. The security officers “act as an ambassador for Securitas and for our customers”. They must work “in a spirit of mutual respect and co-operation. Always approachable and willing to help”. It goes on at page 7 to state

“It is very much a part of the Security Officers responsibility to project the correct image on behalf of Securitas and the customer. It is often the case that you will be the first-person greeting clients and staff and your actions and manner will form an important first impression. There is no second chance to make a good first impression.

The Security Officer has a variety of roles which will be detailed in this document but none as important as dealing with the public positively and effectively. Both staff and visitors must be treated with the same high level of respect and courtesy. A Security Officer’s public relation skills shape the public’s view of both the client and the Securitas Organisation”.

In bold text it continues

“The importance of a Security Officer displaying a smart, courteous and professional image at all times whilst on duty cannot therefore be overemphasised”.

Ms Grainne Quinn, Complainant BL stated Mr Kelly also had to do training on Dignity at Work through the client premises. The Guardhouse duties and responsibilities, include “to assist the patrol guard/facilitate access for the emergency services in cases of emergency. To carry out all dealings with staff/visitors/contractors in a firm/fair and courteous manner”.

Ms Grainne Quinn, BL stated an incident took place on the morning of the 9 December 2020 when a man approached the guardhouse where Mr Kelly was based. He gave his name and the company he worked for to Mr Kelly, advising that he had an appointment on site with a representative, that morning. He had an email on his phone which confirmed details of his appointment.

The man said that he had travelled that morning from Dublin and needed to get access to a toilet on an emergency basis. The person in question was clearly in distress and Mr Kelly told him to go to the reception in the main building to use the toilet and return to Mr Kelly to get his pass to enable him to proceed on to the main building for his meeting. Mr Kelly activated the staff barrier.

Then Mr Kelly contacted his supervisor, Mr Ray Daly who is based in the main building to advise him that this individual was coming to use the toilet. He gave the details of the visitor’s name, company, vehicle and who he was visiting to Mr Daly. Mr Daly told him not to allow him admission, but Mr Kelly explained the sensitivity of the situation to him and that he was en-route to the main building. The security men in the control room could watch the man the entire time on the CCTV footage. Mr Daly, one of the other security guards or the receptionist granted this man access to the main building to allow him to use the bathroom.

Nobody other than Mr Kelly was disciplined for this incident as far as Mr Kelly is aware. The individual returned to the guardhouse within 10 minutes where Mr Kelly had his visitor pass ready for him.

Later that day Mr Kelly raised the issue with Mr Daly indicating that he would have let someone use the toilets in the event of an emergency such as what had occurred once they had identified themselves, like this man did, with an email. He did not say he would let anyone in to use the toilets.

Ms Grainne Quinn, BL stated it is unclear which process the Respondent company choose to follow thereafter, the one in Mr Kelly’s terms and conditions of employment or the Securitas Coaching, Counselling & Disciplinary Procedure & Policy, which was given to him on the 4 February 2021, after the findings of the investigation had been concluded.

Ms Grainne Quinn, BL stated at 2.49pm that day Ms Louise Bagnall, Branch Manager emailed Ms Michelle Collins, HR Manager that due to the “seriousness of this officers’ actions and his complete disregard to our clients safety rules and security procedures” Ms Bagnall had no choice but to suspend him. Despite such a significant and draconian decision being made about his employment, the Respondent allowed Mr Kelly to continue working for the remainder of the day until 7pm with no indication of the serious decision they had reached. At no stage prior to this had Ms Bagnall spoken to Mr Kelly about the incident to ascertain what occurred. The language in this email would also suggest the suspension was a disciplinary measure.

It was only that night that the Area Manager, rang Mr Kelly to say that he was being suspended due to breach of contract pending an investigation. It is unclear how a breach of contract was determined prior to an investigation. The Area Manager also stated the client contact wanted Mr Kelly off site. They say that matter was predetermined from that time on.

Despite Ms Bagnall lodging the complaint against Mr Kelly she then appears to have undertaken part of the investigations “gathering all the necessary reports”. Thus, there was no independence for the investigation.

Ms Grainne Quinn, BL stated Ms Bagnall indicated in her email dated the 9 December 2020 that she would write to Mr Kelly that evening. Despite this Mr Kelly did not receive the letter of suspension until the 15 December 2020. The letter is marked the 9 December 2020. This letter shows further evidence of predetermination, recording the incident as a “serious breach of security procedures”.

The letter also notes “under no circumstances are you permitted to … communicate with either Securitas or personnel from the client premises.” To do would leave Mr Kelly open to further disciplinary action. This is entirely against natural justice and fair procedures as it prevented Mr Kelly from preparing a full defence to the accusations and organising witnesses to assist him.

Ms Grainne Quinn, BL stated Mr Kelly only became aware of the specific complaint against him on receipt of the letter dated the 16 December 2020. This notes it is a “serious a very serious offence and deemed as gross misconduct”. Clearly the matter had already been determined without once hearing from Mr Kelly. The letter again warned Mr Kelly against discussing the matter with “any employees or clients of Securitas”. This was reiterated in the email Mr Kelly received from Ms Collins dated the 16 December 2020.

Despite this letter and the letter received on the 15 December 2020 referring to the Respondent’s disciplinary policy, neither letter provided it. Mr Kelly only received the Employee handbook, which contained the procedure, on the 7 January 2021, the day before his investigative meeting with the employee handbook.

Ms Grainne Quinn, BL stated the letter dated the 16 December 2020 states “the outcome of this meeting may result in receipt of disciplinary action, up to and including disciplinary action”. Mr Kelly does not know what this meant.

The investigative meeting was scheduled for the 21 December 2020 but did not occur until the 8 January 2021.

Ms Grainne Quinn, BL stated Mr Kelly in his email of the 21 December 2020, sought that the meeting would be in person, not online and that he could have representation at same. Both requests were refused. When Mr Kelly asked Ms Collins to have his solicitor present over the phone, she laughed saying “you don’t need a solicitor”. She also implied the matter was not that serious.

Ms Grainne Quinn, BL stated Mr Kelly disputes the content of the minutes of his meeting with Ms Collins on the 8 January 2021. His answers to some questions are incorrectly recorded or not recorded at all. When Mr Kelly raised questions, Ms Collins stated she had to be impartial. Despite this Ms Collins criticised Mr Kelly that he did not put entries into the record book, “verbally is not enough. It’s not acceptable… Massive client security procedures breached”. She also states, “procedure has been broken”.

During Mr Kelly’s meeting with Ms Collins there is no mention to Mr Conway at all. Mr Kelly was never given the opportunity to refute his statement. It appears Ms Collins only sought a report from Mr Conway on the 19 January 2021 seeking “a report stating the conversation that you heard with Ray Daly on his call to Ciaran Kelly”. It is entirely inappropriate that this was only sought 6 weeks after the event, and after interviewing Mr Kelly. It is shocking that Ms Collins would direct Mr Conway as to the content of his report. This statement should never have been sought at this junction, or alternatively Mr Kelly should have been reinterviewed and given the opportunity to refute its content. This was sent to Mr Kelly on the 20 January 2021.

Ms Grainne Quinn, BL stated Mr Kelly requested by email dated the 21 January 2021 to Ms Collins, that certain information be obtained including inter alia the record of the door reader to the control room on the day in question. This would ascertain if Mr Conway was present with Mr Daly at the time of the incident. He also sought the CCTV footage around the incident. Neither of these items have been provided to Mr Kelly. Mr Daly referred in his email to Mr O’Brien dated the 14 December 2020, to viewing the CCTV footage. Mr Kelly was never given this opportunity. Mr Kelly asked Ms Collins about the Dignity at Work course and she was not familiar with it. There is no evidence to suggest she considered this. Mr Kelly also sought a statement be obtained from Mr Gilroy and Mr O’Toole. Neither of these occurred, nor was a statement taken from Mr Brendan Mullins, who allegedly came into the control room during the alleged incident.  Securitas Security Services Ireland (Limited) the Respondent never provided Mr Mulligan’s report to Mr Kelly, until the 4 February 2021 by email. Mr Daly also refers to an email and the contractor database and authorised visitor sheet which were not provided during the process.

Ms Grainne Quinn, BL stated on the 27 January 2021 Ms Collins produced the Summary of Investigation.

The Summary of Investigation does not reflect the reality of Mr Sean Mulligan’s statement to Ms Collins. She stated he

“provided a report to state that no visitors are permitted to use the guard house bathroom. Visitors are permitted to use the bathroom facilities beside the reception. This would be permitted, once the visitors has passed the security check point requirement.”

Ms Grainne Quinn, BL stated in fact Mr Mulligan describes a similar incident during the summer which led to the security officers being informed they cannot let people use the toilet at the guard house. This was the first time those instructions were issued. Mr Mulligan raised the issue with Mr Daly as to what would happen if a person soiled themselves because they were not allowed use the guard hut toilet. Mr Daly instructed Mr Mulligan that they should be told to go off site or use the bathroom at the main building. Mr Mulligan again raised the issue with Mr Daly and Mr Conway. Mr Daly’s response was that it was not our problem. Mr Mulligan highlighted that it’s ok for him to say that but that it would be a terrible position for the Security Officer. Nowhere in Mr Mulligan’s statement does he state, “This would be permitted, once the visitors has passed the security check point requirement.”

Ms Grainne Quinn, BL stated Mr Kelly then received a letter dated the 3 February 2021 inviting him to a disciplinary meeting. This letter fails to warn Mr Kelly that the meeting could result in disciplinary action including dismissal.

The Respondent, Securitas Security Services Ireland (Limited) terminated Mr Kelly’s employment by letter dated the 25 February 2021. When discussing the CCTV footage Mr Brian Doyle, Branch Manager, said the policy in the handbook referred to the Respondent’s head office. It does not it states, “On most of Securitas Security Services (Ireland) Ltd sites”. There is no mention of head office. Further CCTV footage is covered in the Assignment Instructions which indicates it can be released once the customer approves it. Mr Kelly enquired if he could contact the client to request it. Mr Doyle states “no, there is a formal process for data requests that you need to go through, you would have to go to the Data Protection website and download a form from there and follow the process”. This is incorrect, shown the Data Protection website.

Securitas Security Services Ireland (Limited) confirmed the outcome of the disciplinary meeting was communicated to Mr Kelly by email dated the 25 February 2021.

Mr Kelly lodged an email appealing his dismissal on the 3 March 2021, on the following grounds

1.       The decision to terminate my employment was predetermined.

2.       The decision to terminate my employment was known within the company and externally prior to the disciplinary meeting.

3.       Natural justice and fair procedures were not followed.

4.       I was not provided with the allegation against me prior to the investigation.

5.       I was unaware of the procedures, if any being followed by the company.

6.       Ms Collins was not impartial during the investigative stage.

7.       Ms Collins predetermined the outcome of the investigation prior to concluding same.

8.       No weight was given to ensuring the dignity of the client is maintained as emphasised in the policy of the company and the client premises in particular section 2 of the Security Officer functions.

9.       The “Dignity at Work” course undertaken by me was not considered at all.

10.   No statement was taken from Mr Gilroy.

11.   No statement was taken from Mr O’Toole.

12.   I never received Sean Conway’s report until after the disciplinary meeting.

13.   Mr Sean Conway was relied on by the Investigator without my knowledge or sight of what he had to say.

14.   I never received Ann Cowley’s report.

15.   I never received Sean Mulligan’s report.

16.   A number of items I requested were not provided to me including the door swipe record of the relevant day and the CCTV footage from the said date.

17.   A number of items I requested were not considered including the door swipe record of the relevant day and the CCTV footage from the said date.

18.   Security Officers were not questioned about whether visitors entered the site without being on the data base and/or without visitor passes and/or the resulting disciplinary action and/or lack thereof.

19.   The decision to suspend me was disproportionate.

20.   The decision to suspend me was a form of disciplinary action.

21.   The decision to suspend me indicates my termination was predetermined.

22.   The decision to suspend me was not communicated to me for a number of hours which is unfair and contrary to natural justice.

23.   It was predetermined that I had committed gross misconduct immediately, as evidence by the decision to suspend me.

24.   The decision to suspend me was determined without any consultation with me.

25.   Natural justice and fair procedures were not followed when making the decision to suspend me.

26.   I did not receive written confirmation of my suspension or the reason for same for over a week.

27.   The decision to terminate my employment was entirely unfair and disproportionate.

28.   No other disciplinary actions were considered.

29.   The process had gone on for an inexcusable length of time causing me much stress.

30.   My personal circumstances have not been considered in reaching the decision to terminate my employment.

31.   My clean record was not considered.

32.   I was not given an opportunity to question any of the witnesses.

33.   I was not given the opportunity to call witnesses on my behalf.

34.   I was not warned of the possibility of my employment being terminated.

Mr Kelly had to provide all the documentation for the appeal none of this was provided by the Respondent Company. Mr Kelly’s appeal was rejected by letter dated the 24 March 2021.

Ms Grainne Quinn, BL stated despite it being noted in the procedure in Mr Kelly’s terms and conditions of contract that the suspension would be for a short a period as possible, the investigation meeting did not occur until the 8 January 2021, 4 weeks later. The investigation was not concluded until the 27 January, 7 weeks from the incident. Mr Kelly was suspended in total for 11 weeks. During this time Mr Kelly met employees of the client premises who had heard he had been dismissed. This caused great distress to Mr Kelly and family members who were present for these comments.

It is clear that the Respondent had already formed the opinion that there was gross misconduct on Mr Kelly’s part not taking into consideration what were established practices around what security officers are to do in such circumstances.

Ms Grainne Quinn, BL stated it is clear that the Respondent had already decided they were going to terminate Mr Kelly’s employment. The Respondent refused to give the submissions made by Mr Kelly at investigation, disciplinary hearing, and appeal any or any reasonable consideration. Given the nature of the incident and the accepted practice that had developed the decision to terminate his employment was completely disproportionate to the breach of duty on his part. 

Mr Kelly lodged a complaint with the WRC.

Ms Grainne Quinn, BL stated since being unfairly dismissed Mr Kelly has sought other employment. Mr Kelly has a small part time business which has unfortunately been very badly hit due to Covid.

Legal Submissions

Relevant Legislation

Section 6 of the Unfair Dismissals Acts 1977-2015 states

“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

…

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(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, if [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.]”

Thus, the burden rests on the employer to show inter alia:

a)       There was a justifiable reason to dismiss;

b)      The Defendant acted “reasonably”;

c)       The Defendant afforded the Plaintiff fair procedures;

d)      The sanction was proportional, including that other lesser sanctions were considered.

Ms Grainne Quinn, BL stated it is not the function of the Court to establish the guilt or innocence of the employee. Rather it is whether a reasonable employer in the Respondent’s position and circumstances at the time would have done what the Respondent did. This is the standard the employer’s actions must be judged against. The burden of proof is on the employer in an Unfair Dismissal claim to show that the dismissal was fair. This means that the employer needs to be able to show that fair procedures were applied. If fair procedures were not applied, then this negates any decision by the employer to dismiss.

In the case of O’Riordan v Great Southern Hotels UD 1469-2003, the EAT set out the appropriate test for determining a claim relating to gross misconduct stating

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the accused of wrongdoing. The test for the Tribunal in such cases is whether the respondent has a genuine base to believe on reasonable ground arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

The procedures for the dismissal were grossly unfair and failed to comply with general principles and disciplinary procedures as set out in the Industrial Relations Act 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 SI 146/2000.

1.       That details of any allegations or complaints are put to the employee concerned. Mr Kelly did not find out the allegation against him for some time. Some of the statements against him were never put to him.

2.       The employee concerned was given the opportunity to respond fully to any such allegations or complaints. As some of the statements against him were never put to him, he was never given an opportunity to refute them. Mr Kelly was never given an opportunity to question the complainants. Mr Kelly was not allowed to discuss the matter with other employees so he could not put a full defence forward.

Trevor Murtagh v TLC Health Services Ltd (2014) UDA 425/2012, is on all fours with the position here as the Claimant was denied access to the CCTV footage until the close of the process, on the grounds that it “showed nothing”. Here Mr Kelly has never seen the CCTV footage despite Mr Daly referring to it. Mr Kelly has requested it on numerous times.

In Cathal Crilly v Vinmoe Traders Ltd (2014), the EAT were critical of a disciplinary meeting where the Claimant was not provided with the CCTV footage, and the person making the allegation against him was not present.

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. Mr Kelly’s personal circumstances, his representations were not taken into account. The entire matter was predetermined from the very start.

The employer must ascertain the full facts before taking any disciplinary action. The investigation must be

“Comprehensive to the degree that the outcome could be assured to provide a basis for conclusions to be drawn on the balance of probabilities following the conduct of the Respondent’s disciplinary process.”

Therefore, there is a duty on the employer to

1.       Fully investigate the circumstances of the alleged offence;

2.       Carry out this investigation prior to taking any disciplinary action;

3.       Give the employee the opportunity to defend himself against the charge;

4.       Ensure parity/equality between employer and employee at any hearing. It is also essential that the employee has the right to representation at any hearing particularly if his job is in jeopardy.

Ms Grainne Quinn, BL representative for the complainant stated that this did not occur here.

Mr Kelly, Complainant was suspended that evening for “breach of contract” prior to any investigation having occurred. Suspension is listed as a disciplinary sanction in Mr Kelly’s terms and conditions of employment. The High Court has been very critical of suspensions, like here that are unnecessary.

Ms Grainne Quinn, BL stated even if the allegations against Mr Kelly were upheld, dismissal is an entirely disproportionate penalty. Mr Kelly is entitled to have a fair and proportionate penalty imposed on him. No other sanction was considered. There was a range of disciplinary options open to the Respondent namely – first verbal warning, written warning

In Michael McCrann v Marks and Spencer Ireland Ltd (2014) UD 3/2013, the EAT found similarly to hear that

“It is clear that it was open to the decision makers to consider sanctions other than dismissal in regard to the alleged breach … However, no other sanction was considered. The sanction of dismissal was disproportionate to the alleged actions of the claimant and was contrary to fairness and natural justice.”

Janet Mooney v Oxigen Enviromental (2014) UD 1525/2012, is also relevant where the EAT found

“an employer is obliged to apply fair procedures and act reasonably when sanctioning an employee for any misdemeanor… [as] the claimant had an unblemished record [and] there was no evidence that there was an investigation or a suspension in this matter… a clear warning would have sufficed for this first offence and on the face if it the sanction of dismissal was disproportionate”

The Claimant is seeking reinstatement.

Ms Grainne Quinn, BL stated in light of the foregoing, the Claimant hereby seeks a finding that he was unfairly dismissed.

The Complainant, Mr Ciaran Kelly then gave evidence under oath.

Mr Kelly confirmed he has worked in security for many years.  He did training when he started including Dignity & Respect training from Securitas Security Services Ireland (Limited).  The take away was that visitors and clients had to be looked after very well.

Mr Kelly stated there was a previous incident reference guard house toilet and he said it wasn’t allowed for public use.  Mr Kelly confirmed he was doing temperature checks as Covid was fully under way.

The Complainant stated the visitor came to the guard house from his car, 3 cars back and walked up showing him an email that he was visiting and asked could he use the toilet as he was bent over.  Mr Kelly let him down via the barrier and he called Mr Ray Daly his colleague to escort him to the toilet.  Mr Kelly confirmed he could not access the site from there.  He stated there were three staff members at reception.  He couldn’t get into reception and go to the toilet after quick auto temperature check.

The Complainant, Mr Kelly stated while the visitor went to the toilet, he processed other people and then the visitor came back up to get clearance and access to meet the client representative he had planned to meet.  Mr Kelly stated he regrets not logging it in the day diary but he was so busy.

Mr Kelly stated he said to Mr Ray Daly he was coming down and he said don’t let him down and he said he had to as he was going to soil himself.  Mr Kelly stated he was bone fide as he checked his email. He felt the Respondent, Securitas Security Services Ireland (Limited) would have gone off the head due to an accident if the visitor soiled himself.

The Complainant stated he received a call to say he was suspended that night.

Mr Kelly confirmed he met two colleagues while on suspension while out with his wife and they said he was dismissed.

The Complainant stated Ms Collins, HR Manager said he didn’t need a Solicitor so he didn’t feel it was very serious and he wasn’t a union member so he was on his own.

Mr Kelly stated he asked if the investigation meeting could be in person, however, Ms Collins, HR Manager said it had to be via Zoom.  Mr Kelly stated that Mr Conway (Line Manager) would give evidence.

The Complainant also stated his colleague was with him in the hut when all this happened.

The Complainant also stated that CCTV should have been used and it would have cleared up a lot of issues and he asked the witnesses he mentioned should have been spoken to.  Mr Kelly stated the rules/procedures were changing during Covid all the time.  They had requested a toilet but never got it. Mr Kelly stated he feels the incident wouldn’t have happened then.

Under cross examination the Complainant, Mr Kelly confirmed he received policies to sign off on his training versus in person training.

The Complainant stated he accepts he breached procedures but only did this so the person wouldn’t have an accident.  Mr Kelly stated on occasion rules were breached before and there was no issue.  He stated he didn’t do a temperature check but he had to do automatic machine temperature check and Mr Ray Daly walked him to the toilet.

Mr Kelly stated the visitor was in dire need for the bathroom and he felt that the dignity and respect was law per Securitas Security Services Ireland (Limited) as far as he was concerned.  He felt there was no security breach and he did the right thing and if the incident occurred, he felt he would be in bigger trouble.

The Complainant stated if he knew he would get into trouble he wouldn’t have done it but he thought he was doing the right thing at the time of the incident.

Mr Kelly, Complainant stated they requested assignment instructions to be left in the guard hut but they were not left there.  He was aware of them then.

The Complainant stated he knew he was a guest of Securitas Security Services Ireland (Limited) due to email he showed him before he let him in.

The Complainant, stated he also knew that his colleague was going to escort him to the toilet.

Mr Sean Mulligan, Witness for the Complainant then gave evidence under oath.  He stated he had been working on site since 2014 and is still working for the company.

Mr Mulligan stated that in relation to the toilet at the guard house about a month before a colleague let a member of the public use the toilet and the manager gave out to her for doing this and he subsequently drafted 2 laminated signs saying the toilets were for security staff only.  Mr Mulligan asked what do we do if persons are desperate to use the toilet and the Manager said that’s not our problem.  He subsequently spoke to Managers again reference using the toilet if required by the public and the two managers said, send them to use the main toilet in the main building.

In relation to this incident Mr Mulligan was asked his opinion of what he would do.  Mr Mulligan stated hindsight is great and he said he was fearful it would happen so he would allow a person to use the toilet at the guard house and wouldn’t let him soil himself.

Mr Mulligan stated Covid temperature check was necessary per procedures.  He also accepted security pass was necessary before access.

Evidence of Mitigation of Loss

The Complainant, Mr Kelly in terms of redress if his case succeeds has asked for his job back on that site or alternative company site.

I enquired into this loss and mitigation efforts and the parties confirmed the following.

He earned €408 per week gross for 36 hours as outlined in the claimants claim form which was not contested by the respondent.

Ms Grainne Quinn, BL confirmed loss from March 2021 when he was dismissed by saying that he started looking for work at this time but there was high unemployment in his area. He was unemployed therefore for 12 months. 

He was then re-employed part time as hotel porter at €11 x 30 hrs in March 2022 with loss of €150 per week when working x 3 months.

The respondent representative from IBEC said there is no evidence shown for the 3 months of his time with no work that he made efforts to get work. 

The Complainant stated that there are 3 letters to show he sought work in the meantime dated June 2022.

Ms Grainne Quinn, BL stated he is working with Aldi 2 weeks after the hotel in June and then he became sick for 2 months later and for 2 months was unemployed and only returned to work as a bus driver just this month but is awaiting garda vetting.

He was unavailable for work when unwell and was on illness benefit at this time.

He has a small pest control ad hoc business x 3 months per year also.

The IBEC representative on behalf of the Respondent, Securitas Security Services Ireland (Limited) stated the case concerns a claim by Mr Ciaran Kelly (hereafter referred to as “the claimant”) under the Unfair Dismissals Acts 1977 to 2015.  The claimant was dismissed for allowing an unauthorised person on site in breach of the Assignment Instructions.

The Respondent stated that the fact of dismissal is not in dispute, the claimant was dismissed by virtue of his own conduct, fair procedures were observed throughout and consequently the dismissal is not in breach of the Act.

Background to the organisation

Securitas Security Services Ireland Ltd (hereafter referred to as the respondent) is a private security firm providing a range of security services across the country. The respondent recognises SIPTU for collective bargaining and all employees are encouraged to be member of SIPTU.

Background to the Claimant

Mr O’Gorman stated the claimant was employed with the respondent. The claimant was trained on relevant site procedures.

Factual Background

Mr O’Gorman stated in December 2020 the claimant allowed an unauthorised person to enter the client’s premises to use the bathroom. The claimant failed to follow the Assignment Instructions by allowing an unauthorised entry and failing to report this incident or log it in the report book.

The claimant was suspended on full pay and an investigation commenced. The claimant was provided with all information being considered by the investigator, he was advised of his right to representation, the allegation against him and the possible outcome of the investigation. No decision was made until after the claimant had responded to the allegations.

The investigation concluded at the end of January 2021. The main finding of the report was:

·       Ciaran admits that he did not follow procedure.

·       His actions have put the contract in serious jeopardy.

·       Ciaran never wrote a report on this incident or logged it in the report book, despite being fully aware of the main function and responsibilities of a Security Officer is to observe and report and the 4 P’s.

·       Permitting an unauthorised person on site left if in a vulnerable state and open to serious risk, whereby the ramification of this could be infinite. This could have been a person that was trying to access the site to cause harm. This is why the strict protocol of pre-registration for visitors is a strict requirement before any visitor is permitted on site.

·       Ciarán is working in the company for over 7+ years now and his lack of regard for his responsibilities is completely unacceptable.

They stated the matter was the subject of a disciplinary hearing on 19 February 2021. As in the investigation the claimant acknowledged his failure to follow procedure and explained the reason for his breach being he felt the need to assist the person seeking to enter the premises.

IBEC stated the disciplinary manager was not unsympathetic to the situation. However, in the context of a complete failure to follow client Security procedures or Covid screening procedures, it was concluded that irrevocable breach in the bond of trust between the parties had occurred resulting in the claimant’s dismissal and that the claimant, Mr Kelly was advised of his right to appeal the dismissal, which he did.

An appeal hearing took place in March 2021. The claimant set out 34 separate grounds of appeal. Many of these were factually inaccurate and related to procedural objections. None of these objections were upheld and the decision to dismiss stood.

Respondent arguments

Section 6 of the Unfair Dismissals Acts 1977-2015 states

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,

Consequently, the dismissal of the claimant was not unfair as it results wholly from the conduct of the employee. Namely, Permission was granted [by the claimant] to an unauthorised person on site and instructions as per the Assignment Instructions were not followed.

The fact of dismissal is not in dispute and the complainant's dismissal was both substantively and procedurally fair.

Fair Procedures

IBEC stated the respondent at all times conducted the process within the bounds of the company union agreed disciplinary procedure, the LRC Code of Practice on Grievance and Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. In particular:

·       The claimant was aware at all times of the allegations against him

·       The claimant was provided with an opportunity to respond to those allegations and to present his version of events

·       The matter was investigated fully before a decision was made

·       The claimant was represented throughout the process

·       The assessment of the facts and the decision made considered the representations made by the employee and was an impartial determination of the facts

·       The claimant was provided with the opportunity to appeal

In submissions to the WRC the claimant’s representative has reiterated many of the procedural objections raised at appeal. Their submissions claim that a full investigation was not conducted, no substance has been provided to this assertion.

IBEC stated what is not in dispute are the facts of December 2020. The claimant was clear in his statement to the investigator and this version of events corroborated by all and is not in dispute between the parties. Those facts being:

·       The claimant permitted an unauthorised person on the client’s site.

·       His reason for doing so was the person requested to use the toilet.

·       This was a breach of procedure.

·       The claimant knew he had breached procedure and accepted this.

IBEC stated none of these facts are in dispute. It was well established case law that the standard for assessing the fairness of a dismissal is that of a reasonable employer. The issue before the Adjudicator is not reinvestigate the substantive issue but rather to ask the question; how would a reasonable employer have dealt with the situation?

Substantive Issue

IBEC stated it is common case between the parties that the claimant allowed an unauthorised person on site in breach of procedure. In assessing the reasonableness of the decision to dismiss it is vital to consider the context in which this breach took place. It was in December 2020 that the claimant allowed this unauthorised entry, at that time COVID case were rapidly increasing across the country.

They stated in an ordinary situation it would be considered serious that a security guard would allow unauthorised entry to a site. When that unauthorised entrant may bring COVID with them it is catastrophic.

They stated in addition to the security and health and safety issues that the claimant’s conduct gave rise to, his actions could also have damaged the relationship between the respondent and the client company.

IBEC stated given the seriousness of the breach, the claimant’s failure to follow his training and his attitude to same, we submit that this matter falls on the dismissal end of the band of reasonableness.

Conclusion

IBEC stated considering all the above, in all ways we believe the dismissal was substantively and procedurally fair and we ask the Adjudicator to find in our favour.

Oral Evidence

Ms Collins, HR Manager for the Respondent gave evidence under oath/affirmation. Ms Collins confirmed she carried out the investigation and knew the Complainant on a professional capacity.

Ms Collins stated the Branch Manager raised the incident and they received all the information to conduct the investigation. Ms Collins carried out the investigation and Mr Ciaran Kelly the Complainant was suspended as it was a very serious incident.

Ms Collins confirmed the allegation was that during Covid a contractor wanted to use the bathroom onsite.  He was granted permission to use the bathroom which was against protocol.  Ms Collins stated she was told by the Branch Manager this occurred. She stated a number of procedures including pre agreed approvals needs to be done in advance of meeting onsite; they need to be done the day before and they would only be allowed in if they had prior approval.  They cannot be allowed onsite otherwise.  There was also Covid restrictions in place reference access.

Ms Collins stated she met the Complainant, Mr Kelly who said he didn’t follow procedures because they were badly in need to use the bathroom facilities so he had no other option but to allow the person on site.  Mr Ciaran Kelly did not seek any other approval.  Ms Collins stated she also spoke to others onsite. Ms Collins concluded her investigation to say protocol was breached and didn’t uphold their security obligations.  Ms Collins stated she accepts it was a difficult situation as the person was in distress but said it was still a breach of rules we can’t deviate from.

Under cross examination Ms Collins, HR Manager confirmed that Mr Ciaran Kelly, Complainant was working on the site for 7+ years and had a lot of experience.  Ms Collins confirmed Mr Kelly received a handbook or procedures as part of the TUPE, however, the Complainant said he didn’t get this until the investigation commenced.   Ms Collins stated they have a dignity and respect policy.  She confirmed that the Complainant attended training with the client.  Ms Collins stated she didn’t look at that training that Securities Security Services Ireland (Limited) provided him.   Ms Collins stated she did not base her investigation on anything other than the training they gave him.  She confirmed that one of their values is helpfulness.  It was stated they are often the person who gives the first impression and who are required to deal with the public.

Ms Collins, HR Manager sated Mr Ciaran Kelly, Complainant was taking his responsibility to be helpful and courteous on the day of incident.  She confirmed there was no policy regarding the use of any toilet or the security toilet.

Ms Collins stated there is reception and a further security office at reception after the security hut and they have cameras there also.  CCTV covers the full area from the security gate (barriers) to the reception where the bathrooms are.

Ms Collins stated the person who needed to use the bathroom said the person showed him an email to confirm a meeting with someone onsite and he then rang down to confirm to the reception he’d be coming down to solely use the bathroom.

Ms Collins stated she became aware of the incident when Mr Ciaran Kelly, Complainant was suspended.  Louise Bagnal the Branch Manager suspended Mr Kelly and she raised the matter to her.  They stated that Ms Collins received an email from Ms Bagnal about this.

Ms Collins, HR Manager confirmed she did the investigation and she said she didn’t meet Mr Daly but received his report as it was during Covid.  She stated she did meet Mr Kelly, Complainant virtually but didn’t meet with anyone else as part of the investigation she just used their reports.  Ms Bagnal gathered these reports for Ms Collins, HR Manager.

Ms Collins stated that the Managers (Mr O’Brian & Ms Bagnal) were the people who completed the reports.

Ms Collins stated she completed the investigation via meeting with Mr Kelly, Complainant and by viewing the reports that were given to him.

Ms Collins stated the allegation is, Mr Kelly didn’t follow the assignment instructions.

Ms Collins stated that she told the Complainant Mr Kelly he heard a site employee say he was dismissed prior to the investigation.  Ms Collins asked him to follow up regarding a grievance to be made about this.

The client training that the Complainant raised was not looked at.

Ms Collins stated during the investigation this incident is very serious and it is not acceptable and said a massive security breach occurred.  It was alleged that she was not impartial.

After the investigation meeting the HR Manager, Ms Collins did not follow up in relation to any of the points raised even in the minutes she confirmed she’d “look at this”.

Mr Ciaran Kelly, Complainant did not get the opportunity to respond to Mr Conway’s report.

Ms Collins confirmed they didn’t give CCTV as the client was the owner of this footage.

From the investigation report Ms Collins finding was that the incident “can be deemed as gross misconduct”.

Ms Collins confirmed she asked about him having a Solicitor and I asked did she tell the Complainant he didn’t need a Solicitor and she said no she didn’t say that and she’d encourage a representative.

Mr Brian Doyle, Key Account Manager for the Respondent gave evidence on behalf of the company after oath/affirmation.  He confirmed he was the key account manager and there for 26 years.  He has conducted a number of disciplinaries during the year and sits on ERO committee also and other Standard committees.

Mr Doyle stated he became aware of the incident when the investigation package was given to him by Ms Collins, HR Manager.

Mr Doyle stated Seán Mulligan attended the meeting with the complainant, Mr Ciaran Kelly as his representative.

His evidence continued on the second day of the hearing andI reminded Mr Brian Doyle, Key Account Manager he was still under oath/affirmation.  Mr Doyle confirmed he had 37 years + and was experienced dealing with disciplinaries prior to and including this employment.  He conducted the outcome meeting and was aware the Complainant, Mr Kelly received the invite letter and notes from the investigator.

Mr Doyle stated the meeting followed on from the investigation meeting due to breach of procedures.  He stated the alleged incident is outlined in Mr Kelly’s contract as gross misconduct.  He stated he had received all the reports and Mr Kelly then read into record a 3-page statement for Mr Doyle to consider.

Mr Doyle stated in his experience he should have stuck to the procedures so they weren’t in breach of contract with their client Securities Security Services Ireland (Limited).  Mr Doyle said Mr Mulligan the Complainant’s representative attended with him.

He said that the visitor was in a distressed state on arrival but wasn’t authorised to be on the site to use the toilet and Mr Doyle stated he did offer Mr Kelly the opportunity to see the email confirming he was visiting a person onsite but he said Mr Kelly didn’t view it.  Mr Doyle stated even if he had looked at the email that wouldn’t suffice as a person could have drafted the email to gain access if they had bad intent to do so.

Mr Doyle stated Mr Kelly the Complainant should have followed the procedures strictly as there is no option to divert to move from them.  The job is to only allow restricted authorised access to site.  Mr Doyle stated Mr Kelly’s service was 7 years approximate in that role.  Mr Doyle took us through the policies in place to confirm only restricted access to authorised people are allowed on site.  He stated he wasn’t sure if he drove his car in or walked in.  He also reiterated that the person hadn’t done a Covid temperature check before granting access also.

The Complainant stated he made a call to a colleague (Mr Daly) to lift the staff Barrier to tell him the visitor was on the way down and let him in to use the toilet.  Mr Kelly said apparently, he understood Mr Daly said don’t let him in but he already had let him in by sending him down.  It was established after using the toilet that he showed he had business onsite and went through the correct access procedures then.  On the daily log book Mr Kelly, Complainant did not log it as an unusual incident implying, he didn’t see anything wrong with what he did.  The Complainant confirmed he would do the same if someone turned up at his house if he turned up in that state and he would see no one in that state to ensure humanity and dignity at work so he didn’t want to allow someone spoil himself in his distressed state.

Mr Doyle stated that a person can be suspended if they have allegedly breached gross misconduct and its paid.

He decided that the outcome should be termination due to breach of trust and breach of procedures.  The Complainant was then offered right to appeal after decision.  Mr Doyle stated he believed other sanctions were not appropriate due to serious breach and implications for the company and he said he’d do the same again if someone turned up in the same distressed state so he felt he didn’t realise seriousness so trust was breached.

Under cross examination, Mr Brian Doyle confirmed he was a Key Account Manager for the company.  He stated he had worked his way up through the company.  He stated he is not a HR Manager but has done many HR cases for the last 22 years in his role.

Mr Doyle stated the Manager initially assigned to do the outcome meeting who sent the invite letter became unwell and he got assigned the outcome hearing then.

Ms Grainne Quinn BL, representative for the Complainant said the invite letter didn’t say that there was a risk of dismissal just possible result is to be receipt of disciplinary action.

The Complainant, Mr Kelly came into Securitas Security Services Ireland (Limited) via TUPE and his original company contract stood.  Mr Kelly confirmed that by the time the investigation report got to him even though it deemed incident gross misconduct he kept an open mind from the investigation report and made his decision separately, however, he acknowledged the employee Mr Kelly was suspended on the day of incident due to the fact the matter was initially deemed gross misconduct.

Mr Doyle stated the purpose of the outcome disciplinary meeting was to decide on sanction if any; based on evidence presented at the meeting.  It was a remote meeting due to Covid.

Mr Doyle suggested that he should have offered the visitor the option to use the toilet at the guard hut but this was prohibited according to Mr Kelly by the client and only the Security team should use this.

Mr Doyle suggested he should have escalated the issue to get second opinion from supervisor on the incident.

Mr Doyle, Key Account Manager accepts Mr Ciaran Kelly, Complainant flagged the ethos of the client references dignity and respect but Mr Doyle stated he was unaware of that.  They place weight on the fact they are the first face of company for client for the visitor to soil himself wouldn’t be a good image for the company.

The Complainant contacted Mr Daly a colleague regarding the visitor going down to reception and there was CCTV on the way there. 

Mr Doyle sated he wasn’t aware the Complainant required door log for the CCTV and he didn’t require/see it either from the client.  In the reception there is a turn style and CCTV to take temperature there and the toilet was before the turn style or barriers to use them.

Mr Daly (another security person) was aware he was coming to reception and allowed him access.

Mr Doyle stated that no other security officer at reception turned him back without using the toilet. No other officers were disciplined reference this incident as he said they didn’t breach procedures.

The Complainant stated he met a fellow employee before he was dismissed who already knew he was to be dismissed.  Mr Doyle stated he ensured confidentiality.  He said he didn’t consider Mr Mulligan’s statement/evidence or he would have noted it.  Nor did he speak to the visitor in question.  Mr Kelly said he regrets all of this and it wasn’t a good Xmas.

The security guards’ job is to ensure no damage to the company either property or its reputation. Mr Doyle accepts if a visitor was to soil themselves it would have been reputation damaging to the company and client.  Mr Doyle stated that if he was in that situation, he would have followed the rules as a Security Officer.

Mr Doyle stated regarding the decision he considered all options including final warning but believed dismissal was most appropriate.  He was open minded though but due to seriousness and bond of trust was broken.  It was an unusual incident.  Mr Doyle stated he didn’t consider moving him to another site.  He didn’t consider anything other than dismissal, however, the policy and procedures were breached as he had sympathy for the visitor.  He said he wouldn’t allow that happen again either. Mr Doyle stated he didn’t list mitigating factors in his letter he issued.

Mr Doyle stated he wasn’t aware the security guards had requested a porta loo but didn’t get it.

Mr Doyle stated he didn’t call witnesses nor did he get opportunity to question those who gave evidence.

The next Witness for the Respondent was Tigo Ra Bola who was the Appeal Manager.  He took the oath and gave evidence as follows.

Mr Ra Bola stated the Complainant, Mr Kelly submitted an appeal in writing initially under 34 grounds. He stated he had experience doing previous appeals within Securitas Security Services Ireland (Limited).

Mr Ra Bola stated he held the appeal hearing on 12 March and knew the outcomes of appeal open to him were to ensure procedures were followed and to decide on sanctions.  He took time to consider written grounds and meeting them.   Mr Ra Bola stated he issued the decision responding in writing. He discussed the grounds at the meeting also.  Mr Ra Bola replied one by one to the grounds for appeal he raised.  He was satisfied that the procedure was correct and he upheld the dismissal due to evidence he heard due to breach of trust.

On cross examination Mr Ra Bola stated he was the Branch Manager with no formal HR qualifications but had experience.  He stated everything for the appeal was provided to him.

Mr Ra Bola, stated suspension wasn’t disciplinary action and there was no appeal of suspension.  He didn’t believe a lesser sanction was appropriate.

In considering my findings I am going to consider the allegation of Unfair Dismissal in line with Section 6(1) of the Unfair Dismissals Act 1977 which provides that:

“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 burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. Section 6(4)(a) of the 1977 Act provides that;

“…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 …the capability, competence of qualifications of the employee for performing work of the kind he was employed by the employer to do.”

A number of judgements were considered by the Adjudicator in arriving at my decision. Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as follows:

“it is not for the Tribunal to seek to establish the guilt or innocence of the claimant, 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 the time would have done and decided and to set this up as a standard against which the employer’s actions and decision be judged.”

The Labour Court decision of Bord Gais Eireann -v- A Worker AD1377 aptly sets out my remit in relation to disputes regarding internal investigations (and also extends to disciplinary processes brought under Section 13 of the Industrial Relations Act 1969) as follows:

“It is not the function of the Court to form a view on the merits of complaints giving rise to those investigations nor can it substitute its views for those of the investigators appointed in either case. Rather, the role of the Court is to establish if the procedures used by the Company conformed to the generally accepted standard of fairness and objectivity that would normally be used in cases such as these.”

Therefore, my role is not to substitute my views for those involved in dealing with this matter but to establish if the procedures adopted by the Respondent conformed to the generally accepted standard of fairness and objectivity that would normally be used in such cases considering the bar that constitutes gross misconduct and dismissal is a high one.

Bunyan v United Dominions Trust (1982) ILRM 404 states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

It is also relevant to consider is whether the decision to dismiss is proportionate to the gravity of the complaint and indeed as Flood J observed in Frizelle V New Ross Credit Union (1997) IEHC 137 “the decision must also be proportionate to the gravity and effect of dismissal on the employee”.

In Pacelli v Irish Distillers Ltd (2004) ELR25 the EAT stated that any investigation should have regard to all the facts, issues and circumstances.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her “submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” I note that “Procedural defects will not make a dismissal automatically unfair as an employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee. I will consider this also.

Dismissal is in general the last resort in the disciplinary policy and there needs to be substantial grounds justifying any dismissal, in this case I do not see that this bar has been met taking all the circumstances and rational for the Complainant’s decision and actions by permitting a person in distress to use the company toilet facilities notwithstanding they did not follow protocol in doing so and as a result I do not find the decision proportionate.   There was ambiguity in relation to the process to follow in the case of a member of the public needing the toilet facilities in this situation as was stated also by a colleague of the Complainant and there had been previous issues in terms of identifying a solution that was within protocol to follow in this case.

I have particularly I have also considered my responsibility to consider against the facts that a reasonable employer in the same position and circumstances at the time would have done and to set this up as a standard against which the employer’s actions and decision be judged.  In this case I do not find the facts of this case meet this requirement to make the dismissal fair to the reasons I have outlined above.

Considering all the above I find that the decision to dismiss the complainant was not within the bounds of a reasonable act by a reasonable employer.  In this case the visitor who was allowed access was in distress and the Complainant admitted and explained his reasoning for allowing him access and subsequently issuing this pass and following the correct protocol thereafter.

The claim is well founded based on the evidence provided and the claim succeeds.

I considered the request for reinstatement by the Complainant but I do not see this as an appropriate remedy due to breach of trust and the client’s business and nature being dependent on placing the Complainant on a client’s 3rd party site.  Therefore, taking into account the Complainants efforts to mitigate his loss and the circumstances of the case I award the Complainant €21,216 in compensation.