ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00024992
A Safety & Security Officer
Security Service Provider
Graham Bailey IBEC
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 29/01/2020
Workplace Relations Commission Adjudication Officer: Patricia Owens
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant was a Safety & Security Officer, employed by the Respondent from 17th November 2015 up until his dismissal for serious misconduct on 7th October 2019. The Respondent is a security service provider, providing safety and security staff at client sites. In this context the Complainant attended work at the site of a client of the Respondent. The Complainant submitted that he was unfairly dismissed by the Respondent.
Summary of Complainant’s Case:
The Complainant submitted that he was employed by the Respondent as a Safety & Security Officer from 7th October 2015 up until his dismissal in October 2019. He submitted that he was always hard working and flexible, that he was honest and respectful, that he had achieved distinction in a security supervisory and management course which he attended and that he never had any warnings throughout his employment.
He submitted that he had attended for interview for a position of supervisor (2 positions were available) in September 2019 and was successful up to the final round for one of those positions. He submitted that he “had to let the local guy win” because he found him “more suitable for that place.”
He submitted that soon after he was advised of the outcome of that interview process, on 13th September, he received an email from the Respondent advising him not to report for duty and inviting him to an investigation meeting. He advised that the purpose of the investigation meeting was to consider an allegation that he had left his post in the Control Room for extended periods of time. He submitted that the Security Operations Procedure stated that there should be a minimum of 4 internal and 5 external patrols for both security officers on the night shift. The procedure also stipulated that the internal patrol should be a minimum of 40 minutes duration and the external patrol should be a minimum of 50 minutes duration. He submitted that compliance with this requirement necessitated the absence of a security officer from the control room for four and a half hours per shift. He also advised that the patrol routes were not specified and that each officer had their own routes and routines. He submitted that if he had been doing anything wrong he would have been notified and reported by his colleague. He further advised that officers were in constant contact with each other by radio and so were aware of the other officer’s location at all times. He confirmed that breaks were not scheduled but were taken by agreement between the 2 officers on duty on the night shift. He submitted that he wasn’t doing anything different from his colleagues and all officers often joined their patrol and break time and took breaks “as much as required”.
He submitted that his explanation during the investigation process wasn’t given any respect and wasn’t taken account of and as a result he was dismissed. He submitted that the Respondent moved to dismissal, having “skipped all the warning procedures.” He submitted that the dismissal was on the ground of his nationality, that the Respondent just wanted rid of him, as they had chosen an Irish candidate for the supervisory position. The Complainant submitted that the dismissal had severe financial impact on him and his family as he could not access welfare payments due to the dismissal. He also submitted that he had made attempts to secure other employment within the security industry but that these efforts were unsuccessful once the prospective employer learned of the dismissal. The Complainant advised that he was seeking compensation for the unfair dismissal.
Summary of Respondent’s Case:
The Respondent confirmed that the Complainant had been employed by them as a regular, part-time Safety & Security Officer from 17th November 2015 until the date of termination of his employment i.e. 7th October 2019. During this time, he worked on site at a large multinational, providing security services to that client. The Respondent submitted that in September 2019 the Client Manager contacted the Respondent to advise of concerns regarding the Complainant activities on night shifts. These concerns centred around unusual door swipe activity.
The Respondent submitted that due to the concerns raised the Complainant was invited to attend an investigation meeting and was afforded the opportunity to be represented at that investigation by either a colleague or a trade union representative. The Respondent advised that, in line with their Disciplinary Policy, the Complainant was placed on paid suspension pending the outcome of the investigation. The Respondent submitted that the Complainant was accommodated with an alternative date to the initial investigation meeting date as he was unable to attend and was again accommodated when he attended the wrong venue for the second meeting scheduled. The Respondent advised that, the Complainant was accompanied by one of his colleagues when he attended the investigation meeting. The Respondent also submitted that, at the investigation meeting, the Investigating Manager outlined the issues of concern and “attempted to gather a greater understanding of the Complainant’s reasoning and/or explanation for the purported anomalies in swipe records.” The Investigating Manager noted the representations made in relation to the variance in time required to check an area, broken doors and areas where swiping is not necessary. The Respondent submitted that because of the representations made no decision was made at the initial meeting and the Investigating Manager decided to visit the site to check the layout of the premises, to consider what time might be reasonable for patrolling the areas required and to consider the question of doors that remained open or were broken.
After that site visit the Investigating Manager convened a second meeting under the investigation process and again put the concerns regarding the Complainant’s swipe records to the Complainant. She pointed out that his records were notably different from those of his colleagues, and highlighted instances where there was evidence that he swiped into the “quiet room” and did not swipe again for 3 hours. She sought an explanation for this pattern and the fact that this differed significantly from other officer’s patrol patterns. The Respondent submitted that the Complainant confirmed that he was calling his wife.
The Respondent submitted that, following a thorough investigation and consideration of the facts, the Investigating Manager was “unable to find a viable explanation as to how the Complainant was patrolling the site without badging and so was left with no alternative but to conclude that the Complainant was taking extended time away from his duties.”
The Respondent submitted that the outcome of the investigation was confirmed to the Complainant and that, because of the findings of the investigation, the Complainant was invited to attend a disciplinary meeting on 2nd October 2019. The Respondent advised that the Complainant was again afforded the opportunity to be represented and was again accompanied to that meeting by one of his colleagues. The Respondent further submitted that at the disciplinary meeting the Manager discussed the facts of the case again with the Complainant and asked for any further representations which he might wish to add. The Respondent submitted that the Complainant failed to add anything further and noted that all noteworthy representations were reflected in the minutes of the investigation meetings. This meeting was adjourned to consider all relevant information.
The Respondent submitted that a second meeting was held to communicate the decision of the disciplinary process to the Complainant. Despite having been advised of his right to be accompanied the Complainant attended on his own and the Respondent submitted that he was again reminded of his right to representation at the outset of the meeting. At that meeting the Manager confirmed the outcome of the disciplinary process to the Complainant as follows: “you have been found to have taken extended breaks from your shift over extended periods of time. You admitted to this pattern explaining it by breaks, phoning your wife and patrolling without badging. This behaviour is not acceptable, and this pattern amounts to serious misconduct.” The Respondent submitted that, arising from this finding, the Complainant’s employment was terminated with immediate effect.
The Respondent submitted that the outcome of the disciplinary process was confirmed, in writing, to the Complainant and that he was advised of his right to appeal the decision. The Respondent submitted that the Complainant did not avail of the internal appeal process.
The Respondent submitted that:
· “the Complainant was fairly dismissed as he was dismissed as a result of his conduct
· having considered all the facts, the responses and explanations were not considered reasonable nor sufficient such as to mitigate the extreme seriousness and far reaching implications of his actions
· the Complainant’s actions amounted to gross misconduct
· when considering what sanction to apply the company had regard to the seriousness of the allegations and also the representations made by the Complainant within the process”
The Respondent submitted that in considering matters of dismissal for gross misconduct certain principles must be applied which have been established over time and that in that context it is not for this hearing to re-investigate the matters that led to the Complainant’s dismissal but rather to consider whether a reasonable employer in the same position and circumstances would have reached the same determination. The Respondent submitted that their decision to dismiss was reasonable and fair in the circumstances and no unfair dismissal took place.
The Respondent also submitted that the actions of the Complainant destroyed their trust and confidence in him and rendered the continuation of the employment relationship impossible, that his actions contributed wholly to his dismissal and that the Complainant had been afforded all the benefits of fair procedure , in line with the Respondent’s policy, the WRC Code of Practice on Grievance & Disciplinary Procedures (SI 146/2000) and the universal principles of natural justice. In these circumstances the Respondent submitted that this dismissal was a fair dismissal.
Findings and Conclusions:
From the complaint form, the Respondent’s submission and from the evidence adduced at hearing it is clear that many of the events described in the complaint are not in dispute.
Section 6 (1) of the Unfair Dismissals Act states that “the dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances, there are substantial grounds justifying the dismissal”. The Act provides that every dismissal of an employee will be deemed to be unfair unless the employer can show substantial grounds justifying the dismissal.
Issues for Adjudication
Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.
The Respondent submitted that they were made aware of concerns by the Client Manager that the Complainant was showing a highly unusual pattern of “swiping”. The Respondent submitted that they examined those swiping patterns between 1st July 2019 and 19th August 2019 and found that the Complainant’s swiping records demonstrated that he swiped into the “Quiet Room” on several occasions and did not swipe again for long periods of time. In some instances, this gap in swiping was more than 3 hours. The Respondent submitted that the Complainant was asked for an explanation of this swiping pattern as part of the investigation. This account of what occurred was not disputed by the Complainant and is reflected in supporting documentation provided by the Respondent. I noted the swiping records provided for the period in question which demonstrated the gaps in swiping activity and minutes of investigation meetings of 19th September 2019 and 26th September 2019 which demonstrated that these matters were put to the Complainant for response.
At the hearing the Complainant submitted that the gap in swiping activity was based on a combination of issues- that he sometimes combined all his breaks with a patrol, that some areas could be patrolled without swiping and that some doors were not working. The Respondent submitted that the Investigating Manager had attended the site as part of the investigation and had considered these matters. The Respondent submitted that no evidence was found of doors not functioning as expected and that this explanation was not credible. When this was put to the Complainant during the investigation he confirmed that he was also on the phone to his wife. At hearing the Complainant confirmed that at times he took his breaks and went to the “Quiet Room” to phone his wife and that he was sometimes on those calls for up to 2 hours. The Complainant submitted that he did not think this was unreasonable as he had personal issues to deal with and others were also taking long breaks.
I note the minute of the meeting of 26th September 2019 where the Investigating Manager put it to the Complainant that no other Security Officer had lengthy gaps in swiping, that there was no evidence of doors not working and that gaps in the Complainant’s swiping were up to 3 hours long. The Investigating Manager put it to the Complainant that such gaps could not be accounted for by normal break time. I note that the Complainant stated, “I agree it’s too long but I was calling my wife.”
I note that at the subsequent disciplinary hearing the HR Manager put these matters to the Complainant but did not receive any further information or explanation.
At the hearing the Respondent was of the view that they had acted reasonably in concluding that the Complainant’s behaviour was unacceptable and that the sanction of dismissal then applied was proportionate. The Complainant was of the view that the Respondent’s behaviour was not reasonable, that a lesser sanction, short of dismissal would have been appropriate, providing him with an opportunity to address any areas of concern. The Respondent confirmed that action short of dismissal had been considered and that they had examined the possibility of re-locating the Complainant to another site. The Manager who conducted the disciplinary hearing gave evidence that this option was not viable due to reputational risk and as the respondent’s trust and confidence in the Complainant was irreparably damaged.
In considering this matter I examined the detail of the swiping records provided. From that examination I noted that of night shift swiping records provided for 16 nights gaps of more than 3 hours were evident on 2 occasions, gaps of between 2.5 hours and 3 hours were evident on 6 occasions and gaps of between 2 and 2.5 hours were evident on 4 occasions.
From the evidence adduced at hearing and supporting documentation provided I noted that at every stage of the investigation process the Respondent advised the Complainant of the issues of concern, provided him with relevant details and evidence, afforded him his right to representation and an opportunity to respond to the concerns raised. It is also clear that the Respondent did consider the Complainant’s responses and that in so doing she attended the relevant site to walk the layout of that site, checked for faulty doors, ran error reports to check if doors were left open and compared the Complainant’s swiping records with those of colleagues covering the same site. At the end of that process the Investigating Manager found that the Complainant’s swiping records were notably different from his colleagues and that there were not obvious faults/open doors that could explain that difference. I note that the Complainant was provided with a second opportunity to explain the swiping records in light of those initial observations and that he continued to explain the records on the basis of a combination of breaks, phoning his wife and not swiping through different areas. The Investigating Manager found that his explanation was not credible and so referred the matter to be considered under the Disciplinary Procedure.
In reviewing this matter, I am persuaded by the swiping records and by the Complainant’s failure to provide a satisfactory explanation for the disparity between his swiping records and those of his colleagues that any reasonable employer in the same position and circumstances would have arrived at the same conclusion.
Based on the above I find that the Respondent carried out a thorough and impartial investigation in accordance with fair procedures and natural justice. I also find that the conclusions reached by the Respondent in the investigation were reasonable based on the evidence.
From the evidence adduced at hearing and supporting documentation provided I noted that throughout the Disciplinary Process the Respondent advised the Complainant of the findings of the investigation, provided him with relevant details and evidence, afforded him his right to representation and an opportunity to respond to the findings. I noted that the Complainant did not provide any additional information or explanation and did not avail of the opportunity to appeal the outcome of the disciplinary process.
There can be no doubt that the Complainant was taking extended time away from the normal duties and activities expected of a Security Officer while working night shifts. The records examined demonstrated that the Complainant was not carrying out his normal patrol duties for more than 2.5 hours during 50% of the 16 nights reviewed, this pattern was not consistent with that of his colleagues and he did not provide any satisfactory explanation for his actions during those times. In these circumstances I consider it reasonable for an employer to consider the matter under their disciplinary procedure and reasonable to apply a disciplinary sanction. The question that remains to be considered is whether or not the Respondent acted in a reasonable manner in coming to the decision to dismiss.
In the case of Noritake (Irl) Ltd. V Kenna (UD 88/1983) the Labour Court noted that the test for reasonableness as follows:
1.Did the company believe that the employee conducted himself as alleged?
2.If so, did the company have reasonable grounds to sustain that belief?
3. If so, was the penalty of dismissal proportionate to the alleged misconduct?
The issue was also considered in the case of Bank of Ireland v Reilly  IEHC 241 where Noonan J noted that s6(7) of the act makes it clear that a court may have regard to the reasonableness of the employers conduct in relation to a dismissal and states that “the question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned.”
In this case it is not disputed that the incidents occurred. The Complainant accepted that the swiping records were accurate. The Complainant did raise one procedural issue in his complaint form but did not expand on this at hearing. The issue raised was that the respondent had skipped stages of the procedure. However, when I examined this issue I noted that the Respondent’s Disciplinary Procedure made specific provision for cases of serious misconduct and the respondent had acted in accordance with their own policy and I am satisfied that the Respondent did carry out the investigation and the subsequent disciplinary procedure in accordance with natural justice and fair procedures. At the hearing the witness who conducted the disciplinary hearing gave evidence of having considered options other than dismissal and clarified why that option was not viable. In these circumstances I am of the view that the decision to dismiss falls within the “range of reasonable responses of a reasonable employer”
Based on the above I find that the decision to dismiss was fair.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Having carefully considered all of the evidence adduced and based on the considerations and findings outlined above it is my decision that the Complainant was not unfairly dismissed.
Dated: 18th August 2020
Workplace Relations Commission Adjudication Officer: Patricia Owens