EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD817/2012
TE271/2012
CLAIMS OF:
Thomas Moore -claimant
against
Sword Risk Services Limited T/A Sword Security -respondent
And employer appeal against a recommendation of a Rights Commissioner ref: r-122761-te-12/GC.
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
TERMS OF EMPLOYMENT (INFORMATION) ACTS, 1994 AND 2001
I certify that the Tribunal (Division of Tribunal)
Chairman: Mr P. Wallace
Members: Mr B. O’Carroll
Ms H. Kelleher
heard these matters at Castleconnell on 19 December 2013 and 28 May 2015
Representation:
Claimant: Mr David O’Regan BL instructed by, Ms Jenny Fitzgibbon, Sarah Ryan B.A. Solicitor, 26 Glentworth Street, Limerick
Respondent: Ms Michelle O’Riordan, Holmes O’Malley Sexton Solicitors, Bishops Gate, Henry Street, Limerick
Summary of Evidence
The claimant was employed as a static guard working nights at an accommodation facility with a capacity of some 600 students operated on behalf of a third level institution from some time in 2007. Around September 2009 the claimant became an employee of the respondent following a transfer of undertakings in which the respondent assumed responsibility for the provision of security services at the facility.
The claimant worked three twelve-hour nights a week from 6pm until 6am on Thursday, Friday and Saturday nights. Sometime after midnight in the early hours of Friday morning the 9th of September the patrol van driver (PV) called to the facility to carry out an appraisal of the facility, including meeting the claimant, and all was well.
The claimant’s position was that after PV’s visit at around 2am on the morning of Friday 9 September 2011 an incident occurred whereby he came upon two individuals trying to gain entry to one of the accommodation units against the will of the occupants. His position was further that, on escorting the two individuals from the facility one of them assaulted him punched him to the ground and kicked him.
At around 4.30am on the morning of Friday 9 September 2011 PV received a message from the respondent’s control centre in Drogheda of an alarm at the facility and of the Gardaí being unable to gain access to the facility. PV attended the facility and using his swipes let the Gardaí into the facility. The respondent’s position was that the claimant did not make himself immediately available but appeared shortly afterwards in a dishevelled state, without his Hi-Viz jacket and with some blood on his shirt. PV was of the opinion that the claimant may have scratched his cheek on a branch of a tree at the campus.
The respondent’s position was that after the Gardaí had spoken to the claimant he had confided in PV that, after being assaulted he had removed his Hi Viz jacket and pursued one of the intruders whilst carrying a metal implement that he had taken from the boot of his car. He had then hit one of the intruders with the implement. The respondent’s position was that PV took the implement from the boot of the claimant’s car as the claimant was concerned that he was potentially going to be arrested over the events which had taken place and was more concerned about avoiding jail than preserving his job.
PV left the facility at around 5.00am taking the implement with him, at the end of his shift at 8am he gave the implement to the office supervisor to whom he had reported the incident at the facility. OS then called to the facility and met the supervisor of the facility management company (SF) to discuss the incident. OS told the Tribunal that SF had indicated that he wanted the weekend to think about the best way to proceed. It was the respondent’s position that the claimant and SF were friends and that OS was motivated by a desire to preserve the respondent’s contract with the facility.
The claimant worked the following two shifts without incident and then on Sunday 11 September 2011 phoned PV to advise him that he was unfit for work because of a work related injury. It was the respondent’s position that when SF was informed of the claimant’s being unfit for work on account of a work related injury when OS followed up with him on Monday 12 September 2011 that SF told OS that he did not want the claimant back at the facility.
The Gardaí were investigating an allegation of assault made by two students against the claimant. The claimant maintained he was the victim of an assault by the two students. The Gardaí notified the respondent that they were not taking proceedings against the claimant on the 5th of December. The respondent then engaged an investigator on the 20th of December; the claimant had been suspended without pay since the 12th of September 2011.
An independent solicitor was asked to carry out an investigation into the events. After interviewing the witnesses and meeting with the claimant on the 31st of January 2012, the conclusion of the investigation was that the claimant breached several directions from the respondent and that they were severe breaches that would allow the severest disciplinary action. The investigator is not aware of what the company procedures were; they were not used for the investigation. The investigator was also not aware of the directions that were given to the claimant. In relation to dismissal the companies Disciplinary Procedure states;
‘Stage 4 Dismissal Option 2: An employee may be dismissed without going through the previous stages of the procedure in an instance of Gross Misconduct.’
The claimant was not given the opportunity to cross-examine the witnesses; he was only permitted to comment on the completed investigation report. The claimant was dismissed by the respondent with a P45 cessation date of the 3rd of February 2012.
The claimant gave evidence of his loss and attempts to mitigate his loss.
Determination
The Tribunal find that the claimant’s dismissal was procedurally unfair. There was undue delay between the incident occurring on the 9th of September 2011, his resulting suspension without pay on the 12th of September, and the investigation starting on the 20th of December leading to the claimant’s dismissal on the 3rd of February 2012.
The Tribunal find that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and awards the claimant €1,870.32 in compensation.
The Tribunal dismisses the employer appeal of the Rights Commissioner Recommendation ref: r-122761-te-12/GC therefore affirming the award of €1,500 made under the Terms of Employment (Information) Acts, 1994 and 2001.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________ (CHAIRMAN)