EMPLOYMENT APPEALS TRIBUNAL
CLAIMS OF: CASE NO.
Olatunji Lyinolakan -claimant UD906/2011
MN1044/2011
against
Tesco Ireland Limited-respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms M. Levey B.L.
Members: Mr J. Horan
Ms N. Greene
heard this claim at Naas on 4th December 2012
and Dublin on 15th April 2013
and Dublin on 20th September 2013
Representation:
Claimant: Ms Amanda Kane, Mandate Trade Union, O'Lehane House,
9 Cavendish Row, Dublin 1
Respondent: Ms Mairead Crosby, IBEC, Confederation House, 84/86
Lower Baggot Street, Dublin 2
Background:
The claimant was employed as a security guard in the respondent company. The respondent is a large food and goods store of which it is one of a chain of stores. The claimant contends that he was unfairly dismissed. The respondent contends that the claimant was fairly dismissed on grounds of serious misconductin that he used excessive force.
Respondent’s case:
The Tribunal viewed CCTV footage of the incident in question.
The footage showed six youths congregating outside the store for a period of time, interfering with shopping trolleys and signs, urinating and making monkey gestures towards a security guard. A number of youths entered the store and appeared to be physically aggressive towards the guard. One of the security guards (WR) restrained one youth on the floor. A youth in shorts followed the claimant into the store on a couple of occasions and then he smashed the security gates. He went outside, took off his shirt and returned gesturing at the claimant. Eventually, the claimant struck the youth with a shopping basket.
The Tribunal heard evidence from the Personnel Manager (LC). On 02nd September 2010, the night of the incident, she was on duty. She was due to finish at 10.00 pm but she was still in the store until at least when the incident happened at 10.30 pm or 10:35 pm. She was in an office when she heard noise/commotion. She made her way towards the checkout area and saw the claimant hit a youth on the back with a shopping basket. The other security man (SW) was “holding–off” another youth. The first youth that was struck sat down on a ledge near her. The security gates had been knocked to the ground but she could not say how this had happened.
When asked to explain the strike she said that she could not say if it was a light or hard strike. There was a lot of shouting and screaming. She recalled that the youth complained that his ankle was sore. She asked SW if he had called the Gardaí and he said he had. She told both security guards that there was no need for the situation to happen i.e. the physical aspect of the situation.
The security personnel job was to protect the customers and the shop. They were provided with training by the security officer. They are required to have a PSA license.
When the Gardaí arrived the two youths were still shouting. The Gardaí arrested the youth that SW had been restraining. The Gardaí arrested the youth that the claimant had struck with the basket. No ambulance was at the scene but there was an off-duty ambulance person on or about the scene.
It was put to the witness that it was alleged that racial abuse was shouted at the security men and when asked if she heard the abuse she replied “No”.
Cross-examination:
In cross-examination the witness confirmed that she was asked to write a statement about the incident. She typed the statement on 04th September. On viewing the CCTV footage she acknowledged that the youth involved had used force to knock down and damage the security gates. She was called to a meeting to be held on 16th September, which was an investigation into the matter. A manager from another store (JM) was appointed to carry out the investigation. At the meeting JM asked her to read through her statement.
The witness explained that she did view the CCTV.
The Tribunal heard evidence from JM. He explained that all of the employees know the respondents policy that if there is an investigation an employee can have a representative present and a note taker is present. The CCTV footage is shown to the employee and a copy is given to the union representative if requested.
He met the claimant to investigate the incident. Documents were opened to the Tribunal. The witness explained that the incident was a fight/scuffle in the lobby of the store. JM advised the claimant as to the seriousness of the matter. He suspended the claimant because health and safety had to investigate. He also met the other security guard. The claimant had a representative when he met him.
He met the claimant again on 23rd September. He watched the CCTV a number of times. He carried out two investigations into the two security guards. There were two different outcomes in that he felt that security guard SW did exactly what was needed at the time: he felt that what SW did was the proper action. SW restrained the person until the Gardaí arrived and that was correct.
Regarding training of security the respondent has its own “In-house” training as well as the PSA training that is needed.
The witness opened transcript of the meeting to the Tribunal. He explained that the claimant said that if he knew the seriousness of the meeting he would not have attended.
JM felt that the claimant inflamed an already volatile situation by striking the youth. He did not think someone should pick up a basket and that “they are trained security guards”. The claimant struck the youth twice with the basket. The claimant “seemed to lose it, he went into a rage”. He had to have a second meeting to clarify if “Racial comments” were made. He asked the claimant why he struck the youth and the claimant said that he “just lost it for a moment”. It was noted however that this was not recorded in the notes of the meeting. The claimant also said that he had not any training. However towards the end of the investigation he found training cards for the security staff. These were only examined after the decision was made to dismiss the claimant.
He felt that he did a full and thorough investigation. He dismissed the claimant by letter of 23rd November 2010. The letter was opened to the Tribunal. He felt that the claimant had to be dismissed because he felt the incident on the night and the claimant’s actions were serious misconduct.
Cross-examination:
The witness was extensively cross-examined. The witness agreed that as regards the training records/cards he did only find them “after the outcome”.
In clarification for the Tribunal regarding mitigating circumstances for the claimant JM said that he did not check with HR as to the claimant’s record.
The Tribunal heard evidence from another store manager who heard the appeal of the claimant of the decision to dismiss. The witness gave substantial evidence. He did during evidence, when asked if he considered overturning the dismissal, say that in the case you could make two or three choices.
The dismissal was upheld.
In clarification for the Tribunal it was put to the witness that the Tribunal were only hearing evidence that the claimant or other security guard did not have a key for the security shutter. The witness replied “I just assumed that he had the keys”. He did not know why the duty manager did not activate the security shutter “Because I did not ask….I just assumed” (that the security guards had the keys).
The Tribunal heard evidence from the Head of Security (JB) for 26 counties. He outlined in detail the security procedures.
He told the Tribunal that the Gardaí should have been informed from the outset. The security officers are not bouncers. The security guards only have powers of arrest for shoplifting under Common Law. They have to involve the Gardaí. In this particular instance the Gardaí should have been called and the panic buttons activated.
Cross-examination:
It was put to the witness that the Gardaí were called from early on in the incident and they were called mid incident as well. It was put to him that the security guards did not have mobile panic alarms. The witness disputed this but said that he could not confirm this.
Claimant’s case:
The Tribunal heard evidence from the claimant. He explained that on the day in question he commenced his shift at 10:00 pm. On their way into the shop they saw some youths creating a nuisance. They went into the shop to clock-in and returned to the downstairs outer area where the youths were. The youths appeared to be drunk. One customer approached them to say that she was scared.
They approached the youths or were in the vicinity of the youths and the youths started shouting obscenities and racial abuse at them. The claimant made two calls to the Gardaí at circa 10:30 pm; the Gardaí told him that they were on their way. One of the youths had been barred from the shop on a previous occasion because he had been caught stealing and because he had been racially abusive to the security guard.
His colleague told the youths that they had called the Gardaí. They went out to the youths a third time and one of the youths tried to kick them. Another youth with blond hair became involved and a scuffle ensued. The youth had the claimant in a head grip. He wriggled out of the head grip and the youth followed him shouting aggressively. The youth shouted obscenities and threats. He held out a shopping basket to scare the youth but he did not stop so he had to use the basket. He struck the youth in the middle of his body, the torso. The claimant explained that the youth threatened to kill him and his family and made other obscene threats.
The claimant stated that he was not aggressive, because if he was he would have used the basket repeatedly. It was put to the claimant that evidence was given to say that he said that he was out of control. The claimant denied saying that.
The claimant had previously suffered an injury in another unrelated incident and was out of work. For that incident he never received counselling or support nor a card from the respondent. He had lodged a negligence claim against the company months before the current incident.
He was suspended after the previous incident.
The claimant went on to describe the training that the respondent gave them.
He quoted from his notes from his training as follows:
“If in imminent danger you may use reasonable force to defend yourself.”
He felt threatened and believed that he used reasonable force. He tried to defend himself. The incident was on 02nd September and he was off for a few days and no one mentioned the incident until 09th September.
He met JM the Store Manager on 09th September. JM just told him that he was going to ask questions; that he had to find out what had happened. He was not asked if he wanted a representative. He was not told if it was an interview or an investigation. He did not ask for a representative. When he did ask for a representative the request was refused. The respondent was not concerned about him the respondent was only concerned if he had struck the youth with the basket.
A second meeting was held on 02nd October.
The claimant stated the JM was the head of the investigation and his mind was set; he did not have an open mind.
The claimant had asked if he could interview witnesses and that was refused. The claimant and his representative asked for risk assessment and that was refused, they asked for training records and they were refused. They were denied a fair hearing. They only received the training records after the first EAT hearing.
The second hearing was a disciplinary hearing and it only lasted two minutes.
The Tribunal heard evidence from the second security guard (WR). In essence he said that one of the youths had kicked him and another hit him. He had restrained one of them on the ground.
The claimant stated that he was working as a taxi driver since he was dismissed and provided details of his estimated loss.
Determination:
Having considered all of the evidence presented at the hearings the Tribunal determines the claimant was unfairly dismissed. Taking into account the information submitted to the Tribunal in respect of the claimant’s loss the Tribunal awards the sum of €19,000.00 under the Unfair Dismissals Acts, 1977 to 2007.
Loss having been established the Tribunal awards the sum of €1,188.52, this being two weeks gross wages, under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)