EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Employee - (claimant) UD2285/2011
Employer - (respondent)
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: Mr R. Maguire, B.L.
Members: Mr F. Cunneen
Ms. E. Brezina
heard this claim at Dublin on 19th April 2013, 6th January 2014 and 7th January 2014.
Claimant: Mr. Brendan O'Hanlon, Mandate Trade Union, O'Lehane House,
9 Cavendish Row, Dublin 1
Respondent: Ms. Fiona Higgins, IBEC, Confederation House, 84-86 Lower Baggot Street, Dublin 2
On 19th April 2013
Mr. Eamon McCoy, IBEC, Confederation House, 84-86 Lower Baggot Street, Dublin 2
On 6th January 2014 and 7th January 2014
The determination of the Tribunal was as follows:
The claimant worked as a Security Officer for a supermarket outlet and commenced his employment on 21st June 2004. After an issue arose in relation to his security licence, the claimant was dismissed on 20th September, 2011.
The respondent is a supermarket chain and the claimant worked in store C.
The Shrink & Security Manager (TL) told the Tribunal that Security Officers must carry a valid security licence at all times. The onus is on each officer to renew his licence. On 7th July, 2011 an inspector from the PSA checked for valid licences for security officers. Following an investigation meeting with the claimant on 12th July 2011 the claimant was told it was his responsibility to hold a valid licence and he was put on unpaid leave to resolve the issue as this was the process with the company at the time.
TL stated that the reason the claimant was allowed two weeks and not dismissed at the time was to give him fair process rather than dismiss him on the spot. The claimant was informed at the start of the investigation meeting of 12th July, 2011 that an investigation was being carried out. When asked why there was no mention of the potential result of dismissal at that meeting, TL responded that the claimant understood the consequences.
He asked the claimant if he had any correspondence from the PSA but none was provided. He was subsequently furnished with a copy of the claimant’s cheque dated 11th January 2011. It was not uncommon for the Personnel Manager (TC) to sit in on meetings and pose questions. A follow up investigation meeting was held with the claimant on 26th July, 2011. When the claimant stated that he held a valid licence, TL stated that this was not the case and that he, the claimant, did not hold a valid licence at this stage.
A third investigation meeting was held with the claimant on 9th August, 2011 to outline the seriousness of working without a licence. The claimant was subsequently suspended with pay for three days as part of the disciplinary process.
A fourth investigation meeting took place on 12th August, 2011 in order to take the facts into consideration and to clarify matters. Correspondence furnished by the claimant’s representative was taken at face value. Disciplinary meetings were held on 30th August, 2011 and 13th September, 2011.
The respondent did not provide TL with any training in relation to disciplinary matters and it was he, in consultation with TC, who made the decision to dismiss the claimant. He stated that he should have studied up on the respondent’s disciplinary process during the course of the meetings. He had, however, carried out a two day training course with his previous employer. He believed that a full and fair investigation was carried out. The normal process when a security officer did not hold a valid licence, was to place the officer on unpaid leave for two weeks to allow time for the matter to be resolved. TL believed if pressure was put on the PSA, a licence could be issued within two weeks. When asked why other staff were treated differently and could continue working while awaiting licence renewal, TL indicated that as the claimant’s licence had been revoked, this was a different issue to renewal of licence. The fact that the claimant’s licence had been revoked was not the deciding factor in his dismissal.
By letter dated 20th September 2011 the claimant’s employment was terminated. He was offered a right of appeal.
JT carried out the appeal hearing. He found that the claimant had ample opportunity to retain a valid PSA licence in the period November 2010 to July 2011. He also found that the bond of trust had been broken as the claimant had failed to notify the company that he did not hold a valid licence for the nine month period and he lied to the company. The claimant had provided false and misleading documentation to the company. JT upheld the sanction of dismissal.
The claimant was employed as a Retail Security Officer and he commenced employment on 21st June 2004. There was variation in his role. One of his duties was to detect fraud in the company. In the event of a customer shoplifting he reported this directly to his Manager. He was familiar with the company’s honesty policy and signed a copy of that policy. He was also provided with a contract of employment. He worked from 10 pm to 6 am in Store C. The claimant was familiar with the requirement to be in possession of a current PSA licence to carry out his role. He worked as part of a three person team.
On 18th October 2010 he made an application to the PSA to renew his licence and enclosed a cheque for €80.00. An advance of €80.00 had already been given to him by the respondent.
The PSA wrote to the claimant on 1st November 2010 indicating that his cheque had been returned by the Bank as there were no funds available to meet the application. He was asked to furnish a replacement cheque or postal order to enable them to proceed with his application. It was his intention to issue a further cheque to the PSA but it slipped his mind. He received a further letter from the PSA on 10th November 2010 reminding him that he had not issued a replacement cheque and that his licence could be revoked. He immediately telephoned the PSA and told them he was remiss but that he would attend to the matter.
The onus was on the claimant to rectify the matter and he saw no need to notify the respondent about the issue. He accepted he was sloppy and slow in rectifying the matter and issuing a replacement cheque and actually meant to resolve the matter. His two colleagues had also encountered difficulties with the renewal of their licences and they remained in employment while the issues were being rectified.
The claimant received a letter dated 29th November 2010 from the PSA in which they stated their intention to revoke his licence and offered him a right of appeal within a month.
As the Store was busy the month of December 2010 the matter slipped his mind and he eventually posted a replacement cheque to the PSA on 11th January 2011 together with a new application form. Following a letter from the PSA dated 11th February 2011 the claimant immediately telephoned the PSA and he believed the matter was being dealt with.
The claimant attended a meeting with JL on 12th July 2011 in relation to his licence. Following that meeting he visited the PSA offices. His cheque dated 11th January 2011 was still in his file. The PSA asked him to change the date to 11th July 2011, he completed a new application form and was issued him with a receipt. He presented this receipt to the respondent. He understood that his licence application was in order and that the PSA were processing his application for the renewal of his licence. In total the claimant had made three attempts to pay for his licence and completed three separate application forms.
The claimant attended several investigative meetings regarding his security licence between 12th July 2011 and 12th August 2011 followed by two disciplinary meetings on 30th August 2011 and 13th September 2011. During the course of these meetings the claimant told the respondent that his licence had been revoked but did not give the respondent an explanation as to why it had been revoked. Following the meeting on 12th July 2011 the claimant was placed on two weeks unpaid leave to resolve his licence issue. At no stage had the respondent asked him if he was in receipt of correspondence from the PSA. However, he presented the respondent with a copy of an email from the PSA on 26th July 2011 which indicated that his licence application had been approved and would be forwarded to him in the following ten days.
He received a new licence towards the end of July 2011. This was backdated to the expiry date of his original licence. He was issued with a new licence number. It was never his intention to discredit the company. He was never prosecuted by the PSA. He was suspended with pay for three days on 9th August 2011 pending further investigation.
At no stage during the course of the meetings had the claimant been advised that he could be faced with disciplinary action.
TC provided support to TL during the investigation and disciplinary process to ensure it was fair and reasonable. He had vast experience in disciplining staff. TC felt the sanction of dismissal to be the most appropriate in the circumstances. The company’s name had been brought into disrepute.
The claimant was dismissed from his employment on 20th September 2011. He chose to appeal his dismissal. His appeal hearing was held on 6th October 2011 and the sanction of dismissal was upheld.
The claimant has not secured alternative employment following the termination of his employment.
The Tribunal carefully considered the evidence adduced during the course of this three day hearing.
The evidence adduced showed that there was no discernible procedure followed in respect of the dismissal. There was no clear movement from an investigation to a disciplinary procedure. The respondent was unclear, at an advanced stage, who was making decisions in relation to the discipline of the claimant. The purpose of the two-week leave given to the Claimant during the process was unclear.
As a matter of fact at the time of the claimant’s dismissal he was in possession of a valid security licence. In all the circumstances the Tribunal believes the sanction of dismissal was excessive.
However, the claimant had committed an offence and had exposed the respondent to huge risk when in fact he knew he was doing so. Even if the Tribunal fully accepts that the claimant intended to resolve the issue he was still working illegally for a prolonged period of time in that he did not hold a valid security licence. The Claimant is a highly educated man who gave evidence of having his professional qualifications recognised in the UK. The company had made him aware of the importance of his licence. The Claimant should have ensured that he was not working without a valid licence and he failed to do so.
In those circumstances, the Tribunal is satisfied that the claimant contributed heavily to his dismissal. The Tribunal is not satisfied on the evidence presented that the Claimant made adequate efforts to mitigate his losses, in that he made limited attempts to secure employment in limited fields since his termination.
Because of the conduct of the disciplinary procedures and the excessive sanction, the Tribunal finds that the Claimant was unfairly dismissed from his employment. The Claimant sought reinstatement. The Tribunal does not believe this to be appropriate in the circumstances. The Tribunal awards the claimant €22,000.00 under the Unfair Dismissals Acts, 1977 to 2007. The Tribunal also awards the claimant €3,516.92 being the equivalent of four weeks pay under the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal