EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Anton Veremeicik – appellant UD314/2014
Noonan Services Group Limited – respondent
against the recommendation of the Rights Commissioner in the case of:
Noonan Services Group Limited
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms O. Madden B.L.
Members: Mr F. Moloney
Ms N. Greene
heard this appeal at Dublin on 10th April 2015
Appellant(s): Ms Bernadette Thornton
Liberty Hall, Dublin 1
Respondent(s): Mr John Barry
Management Support Services
The Courtyard, Hill Street, Dublin 1
This case came before the Tribunal by way of an employee appealing the recommendation of a Rights Commissioner under the Unfair Dismissals Acts 1977 to 2007, ref: r-137313-ud-13/JT.
The determination of the Tribunal was as follows:-
The respondent company provides various services to its customers. The claimant, a Lithuanian national, was employed as a security guard through its security operations department. The claimant was mainly employed by a particular supermarket chain. Usually a single security guard operated in store and would receive instructions from the store manager. The claimant was dismissed after his services were rejected by a number of stores.
The claimant had ‘site bans’ from Bray, Dun Laoghaire, Moore Street when an incident occurred in a Coolock store on 1st December 2012. A customer complained about the claimant’s attitude towards her and her son. The woman’s son was playing with a toy gun and the woman complained that the claimant had approached her son several times had shouted at them and asked them to leave the store.
During the investigation meeting conducted by RF on 11th December 2012 he put to the claimant that the store manager had confirmed that the claimant had shouted at the customer. He contended that this was a lie and everything was lies and that the customer had a mental disability. RF had received similar complaints about the claimant’s attitude from the managers of other stores. The claimant maintained that he had done nothing wrong and that the problem was with the customer company and not him. The claimant was accompanied to the meeting by his shop steward. He refused to sign the attendance sheet or the minutes.
The claimant had received a site ban from the Moore Street store for taking a break without informing the manager. The normal practice is to notify the manager when taking a break so that the manager can be extra vigilant.
The claimant was invited by post to a disciplinary meeting to be held on 19th December 2012 in relation to complaints that he made inappropriate advances to a female employee in the Bray store, the confirmed incident in Coolock, the confirmed unauthorised break while in the Moore Street store and site bans from four different stores. The claimant failed to attend the meeting or contact the company. He presented for work at the store. A further meeting was arranged for 2nd January 2013 which the claimant failed to attend or make contact in connection with meeting. He presented for work at the store. A further meeting was arranged for 8th January 2013 and the letter stated that if the claimant did not attend a decision would be made in his absence. The claimant went on sick from 3rd to 17th January 2013 but did not submit the certificates until later. The company was not aware of the claimant’s illness at the time.
The claimant was issued with a final written warning in January 2013 and within that letter detailed improvements that the company expected the claimant to make. He was offered the opportunity to appeal. The claimant never directly appealed the warning but raised it during a grievance procedure meeting on 13th February 2013 concerning his pay between 3rd and 17th January 2013. The company then facilitated an appeal meeting on 15th March 2013 which the claimant put off due to illness. A further meeting was arranged for 22nd March 2013, after a disciplinary meeting held on 19th March 2013. The company delayed issuing any sanction following that meeting pending the outcome of the appeal meeting.
On 19th February 2013 the company informed the claimant that a complaint had been made against him in the Nutgrove store. He was invited to an investigation meeting on 13th March 2013 to discuss the allegation and also to discuss a separate allegation from the Artane store that he was pestering employees for use of their mobile phones.
Following on from the investigation meeting the claimant was invited to a disciplinary meeting on 19th March 2013 in relation to:
inappropriate behaviour towards an employee at the Nutgrove store
the claimant’s refusal to accept any wrongdoing despite witness statements,
pestering staff at the Artane branch for use of their phones despite the manager asking to desist
site ban from the client company restricting their ability to roster him
while waiting for the investigation meeting the claimant was overheard telling a visitor that ‘she likes me, she can’t say but she likes me’ in reference to the HR Specialist who spoke with him after the meeting.
The claimant’s attitude was that he was innocent of everything and that some of the people making allegations against him had psychological issues and were out to get him. The notes of the meeting were not available to the Tribunal, nor were the complaints regarding the Nutgrove incidents or the grievance meeting.
At the appeal of the final written warning the claimant explained his non-appearance at the meetings by stating that he was told not to go by his shop steward, that he was sick and that he did not understand the process. He said he was ‘fit for work but not fit to concentrate on that’. The Services Director went through the allegations and the claimant confirmed that he understood why he received the sanction in his absence.
The witness listened to the claimant to hear if there was any reasonable explanation, remorse or understanding for his behaviour but the claimant denied responsibility for any of the incidents and accused some individuals of mental health issues. He believed the employee in Bray had it in for him and in Moore Street that it was the manager’s fault. In reference to the Coolock incident the claimant had worked in security at a Social Welfare office and explained that he knew the type of people who were on social welfare and that they had no respect. The customer was trying to provoke him and told him to ‘go home’ to his own country.
The Services Director upheld the final written warning in writing on 25th March 2013. The claimant was dismissed by letter of 27th March 2013.
Summary of Claimant’s Case:
The claimant gave evidence. Regarding the incident in Coolock, the store was quiet when the woman came in with three children (he thought). One was clicking a toy gun and fired it at the claimant but nothing came out. He looked at the mother expecting her to apologise or tell the child to stop messing. He did not say anything and decided to stay away from them. He believed she was trying to provoke him. The child continued to run round the store. He used to work security in a Social Welfare office and had to stop children running around. He told the child to stop messing loudly so the mother would hear. She shouted at the claimant that the toy gun was not real and was verbally abusive. He told her she had to watch her children and she told him to go back where he came from. He asked her to leave the store. She asked for the Gardaí to be called which the manager did, but they never arrived. He asked the manager why she did not ask the customer to leave.
He was 8 years with the company and believed he handled the situation correctly from a security point of view. In hindsight he would have ignored the woman. He attended an investigation meeting on 11th December 2012 but did not attend the three disciplinary meetings he was invited to.
He read the letter which included the statements ‘you confirmed that the incident on Saturday 1st December in the [store name] Coolock Store did happen,’ and ‘you confirmed you did take an unauthorised break while working in [store name] Moore Street on Monday 3rd December 2012.’ The use of ‘confirmed’ led him to believe that the company had already made up its mind and that they were bullying him. He spoke with his shop steward and told him that he felt bad. The shop steward told him not to go if he felt bad. He did not inform the company that he would not be attending. He did not attend the second meeting as he believed the company was going to go against him and so he went on sick leave. He hoped the situation would go away.
There were complaints every month against security guards; it was part of a security officer’s life. Some managers would not investigate the complaints as they understood the security guard was just doing their job.
At the appeal of the final written warning he did not agree with the accusations. He was just doing his job. He compared himself to a Lithuanian parable of a wolf in a forest. He felt like the wolf watching people who were doing wrong and causing problems for security and it was his job to remove them before they did. Regarding the incident of inappropriately touching an employee’s hair he contended this was a once off and he was only putting her pen back in her ponytail where she kept it. No one viewed the CCTV to see what really happened.
The claimant gave evidence of his loss. He claimed jobseekers until September 2013 when he commenced a college course until May 2014 and thereafter has been on illness benefit.
The Tribunal is satisfied that a full fair and thorough investigation was conducted followed by a disciplinary process and that procedures were followed. It appears that at all stages he had trade union representation. He was given the opportunity to rectify his behaviour in the final written warning but despite this, he continued to behave in an unacceptable manner which resulted in gross misconduct. Despite numerous letters inviting him to the disciplinary meetings he failed to attend or engage on all three separate occasions. At all stages, including before the Tribunal, the claimant failed to recognise that his behaviour was unreasonable and unacceptable for a security officer.
Having regard to all the circumstances the Tribunal finds that the dismissal was fair and accordingly upholds the recommendation of the Rights Commissioner.
Sealed with the Seal of the
Employment Appeals Tribunal