ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018871
A security guard
A provider of security services
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 27/05/2019
Workplace Relations Commission Adjudication Officer: Kevin Baneham
On the 20th December 2018, the complainant referred a complaint pursuant to the Unfair Dismissals Act. The complaint was scheduled for adjudication on the 27th May 2019. SIPTU represented the complainant. Two witnesses attended for the respondent.
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 worked for the respondent from December 2015 to October 2018, when he was dismissed on grounds of gross misconduct. He asserts that this was unfair, and the respondent denies the claim.
Summary of Respondent’s Case:
The respondent submitted that the complainant was dismissed for taking a bike that was not his property and without proper authority. The bike was placed in a corridor and belonged to a colleague. The respondent could not have staff taking things that did not belong to them. The colleague raised the issue with the on-site security manager, who referred it to the respondent. The security manager had identified the complainant through CCTV.
The disciplinary meeting took place on the 29th August 2018. The finding of the 2nd October was that the complainant’s actions damaged trust and constituted gross misconduct. The complainant’s employment came to an end on the 4th October 2018.
The respondent outlined that the complainant attended the appeal meeting of the 18th October. On the 8th November and after further investigation, the appeal confirmed the dismissal. The respondent paid the complainant one week of notice as well as the balance of holiday pay.
The respondent outlined that the security manager had given the bike to the colleague. The respondent did not know how long the bike had been in the hall beforehand. The respondent ‘s employee handbook referred to dishonesty, which includes theft or fraud.
The respondent did not dispute that a named staff member had given the complainant permission to take the bike, but this staff member was not the complainant’s line manager. The complainant should have asked someone else.
Summary of Complainant’s Case:
The complainant said at the investigation that he had permission from a named staff member to take the bike. The respondent did not interview this staff member as part of the investigation.
The complainant said that his taking the bike was a misunderstanding. The complainant took the bike with the permission of this staff member and returned it when asked to. He said that it was unclear to him how the security manager could have given the bike to the colleague.
The complainant submitted that he was unfairly dismissed by the respondent, relying on DHL Express Ltd v Coughlan UDD1738. He submitted that the dismissal was disproportionate in the circumstances and he was not given the opportunity to reform his conduct or performance. The respondent did not have regard to the complainant’s length of service. The complainant submitted that the respondent has not provided evidence that what happened placing its relationship with the client at risk.
The complainant outlined that following his dismissal, he commenced a new part-time job on the 9th December 2018, earning €250 a week.
Findings and Conclusions:
This is a complaint pursuant to the Unfair Dismissals Act. The complainant’s employment commenced on the 22nd December 2015 and ended on the 4th October 2018. He was paid €1,146 per fortnight. He worked as a security guard, assigned to a shopping centre.
The legal onus is on the respondent to show that the dismissal was not unfair. In this case, the dismissal arose from the complainant taking a bike from the shopping centre staff area. The evidence was that this was an old bike that had been left in a corridor. The complainant says that he obtained permission from a named staff member to take the bike. The complainant did this after being informed that the bike was about to be skipped.
It is a significant failure on the part of the respondent not to interview this staff member, to ascertain whether what the complainant was saying was correct. If the staff member had confirmed this version of events, this would have assisted in correctly gauging whether a disciplinary breach had occurred and if so, any sanction.
I note that the respondent has not tendered evidence of any threat to its relationship with the client brought about by the complainant’s actions. I also note that the complainant had unblemished service since 2015 and returned the bike as soon as he was asked to.
Taking the evidence together, I find that the respondent has not discharged the burden of proof placed on it by the Unfair Dismissals Act. I reach this finding as it is not at all clear that the complainant did anything wrong. There was an old bike, left in the shopping centre staff area. He asked the staff member could he use the bike and the staff member said ‘yes’. The complainant took the bike. It transpired that during this time, another staff member of the client had agreed that someone else (‘the colleague’) could use the bike for his commute home. The complainant was therefore asked to return the bike, which he did.
I find that there was no disciplinary breach. Even if I had found that there was a disciplinary breach, it is difficult to see how the complainant’s actions amounted to gross misconduct. It is difficult to see how dismissal could be justified. It follows that the complaint of unfair dismissal succeeds.
In assessing financial loss arising from the dismissal, I am satisfied that the complainant sought to find alternative employment and sought to mitigate this financial loss. He was dismissed on the 4th October 2018 and secured new employment on the 9th December 2018 (a period of nine weeks). I note that the complainant then secured part-time hours. The complainant’s weekly pay had been €573 and earned €250 per week in the new role. I award redress of €8,000, taking account of the period of no employment and the subsequent period with part-time hours.
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.
For the reasons set out above, I decide that the respondent unfairly dismissed the complainant in contravention of the Unfair Dismissals Act. I award redress of compensation in the amount of €8,000.
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Unfair Dismissal Act / gross misconduct