Complainant

Respondent

Parties

Ramzan  Ali

OCS - One Complete Solution Ltd

Complainant

Respondent

Anonymised Parties

Representatives

 Did not attend.

Hannah Rowe , Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00061685-001

19/02/2024

The Complainant was offered a Security Officer position on 5 March 2020. He commenced employment with the Respondent on 7 March 2020 and was based in a client store. He earned €11.65 per hour.

The Complainant was promoted to Security Store Detective on 14 June 2023 and received €15.10 per hour. Employment ended on 31st October 2023.

This complaint was received by the Workplace Relations Commission on 19th February 2024.

The hearing of the complaint took place over two days, 9th July 2024 and 30th January 2026.

The complainant attended the remote hearing on 9th July 2024 but not the second remote hearing on 30th January 2026.

The complainant submitted three written statements to the respondent, these statements read as follows:

1st Incident Report.

I am writing this statement to explain the incident that occurred at Tesco, Rathmines, Dublin 6 on Monday 7th August 2023 at 1621 hrs. I was working as a store detective at the shop and it was like a normal working day for me when Mr. XYZ came in with a few shopping bags and a shopping basket.

Due to his previous shopliftings, I became extremely vigilant, and I was closely watching him on the CCTV cameras. After packing his bags with groceries and alcohol he walked through the fire exit without paying. Despite my request for the stuff to be returned he quickly walked and left the store.

I grabbed him from behind when he refused to stop. Then he tried to hit me, but he fell down. The man is seen to have displayed aggression and spat on me. Then he started reaching into his pockets and I became concerned that he might be carrying a weapon.

As I tried to stop him again, he tried to bite me and I got very careful might be he have some disease in case he was carrying a syringe, but he kept resisting and running away.

To retrieve the stolen items, I dragged him to the shop and I kept holding his arms until the other security officer came to my help, we called the guards, they asked the man if he was carrying any weapon and he replied No. I would like to add here that I have not punched the person on his face except hit him on his arms when he hit me and tried to bite me.

The whole incident was recorded on the store cameras and staff can verify this.

2ND Incident Report.

I am writing this report to explain the incident that occurred in Tesco, Drumcondra, Dublin 9 on Thursday,21st September 2023, at around 18:50.

I was working as a security detective in the shop when this man was also there doing his shopping. I was watching him on CCTV when he put several items in the shopping bag and also hid several items in his jacket.

I kept observing him and went to the exit door. He was pretending that he was going to pay for his shopping and went to the self-service checkout. He scanned only one can of beer, but did not pay. The he left the can in the checkout while talking with the Tesco staff and started walking towards the exit.

When he came to the door I asked him to give back the items and he gave me a few. The I asked him to give me the rest of the items from the bag and his jacket. He abused me terribly and hit me in the face. My nose started bleeding and in self-defence I hit him back.

I called the Garda, but nobody arrived.

I was waiting in Tesco until my shift was over. I was in a lot of pain so I went to the hospital, but the waiting was too long so I came back home. Then I called the duty manager and texted to my manager as well.

Third document.

Incident Report: Unfair Dismissal – OCS Security Company.

Subject: Unfair Dismissal – Store detective.

Summary: I am submitting this incident report to address the unjust termination from my position as a store detective with OCS. Two distinct incidents led to my dismissal, and I believe they were mishandled please see the OCS policy documents copy.

First Incident: On 7th August 2023 at 1621 hrs, I received a written warning following an incident at Tesco. However, Teso’s manager clarified that the situation was not attributable to my actions. Despite this clarification, the written warning was issued by Security Company creating an unwarranted mark on my record.

Second Incident: In a subsequent incident, I found myself in a situation requiring self – defence. Regrettably, this led to my termination. I firmly believe my actions were justified given the circumstances and that my dismissal was disproportionate.

Documentation: Attached, please find statements supporting my innocence in the first incident. Additionally, 2nd statements any available evidence supporting the legitimacy of my self-defence actions in the second incident is provided.

Request: I request a thorough review of both incidents. I believe in the interest of fairness and justice, the actions taken against me should be re-evaluated.

Conclusion: I appreciate you attention to this matter and trust that a fair investigation will be conducted to rectify the unjust termination.

The Complainant was dismissed from his employment with the Respondent for gross misconduct, following a thorough process, undertaken by the Respondent to ensure maximum fairness and transparency was afforded to the Complainant, in accordance with fair procedures and natural justice.

Background to the Respondent.

OCS is a global facilities services business with 120,000 staff members and 8,000 customers across Ireland, the UK, Europe, APAC, and the Middle East. The company provides services in the areas of cleaning, catering, hard services, pest control, security, and facilities management.

Background to the Complainant

The Complainant was offered a Security Officer position on 5 March 2020. He commenced employment with the Respondent on 7 March 2020 and was based in a client store. He earned €11.65 per hour.

The Complainant was promoted to Security Store Detective on 14 June 2023 and received €15.10 per hour. His employment was terminated on 31 October 2023 by reason of gross misconduct.

Sequence of events leading to the Claim

·       On 7 August 2023, an incident occurred in the client store where a physical assault took place between the Complainant and a customer.

·       Mr Michal Kozacki (Line Manager) and Mr Mark Dunne met with the Complainant on 8 August 2023. They discussed the video of the assault that was online and informed the Complainant that he was suspended with pay pending an investigation. They also asked the Complainant to provide a detailed statement of the incident.

·       Following the meeting Mr Kozacki emailed Ms Natalie McGrath (Senior HR Advisor) stating that he met with the Complainant to discuss the incident. He attached the minutes of the meeting, store receipts, a witness statement and the video that was circulated online.

·       On 9 August 2023, a letter was sent to the Complainant outlining that he was suspended with pay pending an investigation into suspected gross misconduct relating to “Dangerous behaviour, fighting or physical assault” and “Failure to carry out reasonable instruction or follow the company’s rules and procedures”.

·       The Complainant emailed Mr Kozacki a statement regarding the incident on 10 August 2023

·       A letter inviting the Complainant to an investigation meeting on Monday 14 August 2023 was sent to him on 11 August 2023.

·       TheinvestigationwasconductedbyMrRazvanPuan(FMContractsManager). MrPartickRoche(notetaker),theComplainantandMrBrianWilders (Colleague) were also present. They discussed the incident, how he reported theincidentandviewedvideofootageoftheincident.

·       Mr Puan emailed Ms McGrath after his investigation stating that the matter should proceed under the disciplinary procedure.

·       An outcome letter was sent to the Complainant on 1 September 2023. The following points were outlined as the reasons that the matter progressed to the disciplinary stage:

·       “It is clear from the investigation that you displayed dangerous behaviour, fighting or physical assault.

·      You did not follow the correct processes and procedures of the company.

·       This is Gross Misconduct under our Disciplinary Policy.”

·       A letter inviting the Complainant to a disciplinary hearing to be held on Tuesday 5 September 2023 was sent to him on 1 September 2023. A copy of the disciplinary policy was also included.

·       The hearing was conducted by Mr Jason Cremin (Key Account Manager). Mr Ranko Radojcic (note taker), the Complainant and Mr Brian Wilders (Colleague) were also present, where this was discussed.

·       On 13 September 2023 Mr Cremin emailed Ms McGrath with his outcome of the hearing, indicating that a final written warning was appropriate.

·       The outcome was sent to the Complainant on 13 September 2023. The following were cited as the reasons for the final written warning:

·       “It is clear from the investigation that you displayed dangerous behaviour, fighting or physical assault.

·       You did not follow the correct processes and procedures of the company.

·       This is Gross Misconduct under our Disciplinary Policy

·       Consideration has been given to the fact that you stated you were in fear for your safety and that of other people”.

The letter outlined that the final written warning would be disregarded after twelve months and that repeat behaviour would result in further disciplinary action.

·       On 21 September 2023, another incident occurred in the client store where a physical assault took place between the Complainant and a customer. The Respondent received a timeline of the incident on 26 September 2023.

·       On 27 September 2023, a letter was sent to the Complainant suspending him with pay pending an investigation into suspected gross misconduct relating to “Dangerous behaviour, fighting or physical assault” and “Failure to carry out reasonable instruction or follow the company’s rules and procedures”.

·       A letter inviting the Complainant to an investigation meeting on Friday 6 October 2023 was sent to him on 4 October 2023.

·       The investigation was conducted by Mr Gareth Daniel (Operations Manager). Mr Ranko Radojcic (note taker), the Complainant and Mr Brian Wilders (Colleague) were also present. In summary they discussed the Complainant’s role and the incident, the Complainant also confirmed he received training on how to handle situations like this and agreed that he “crossed the line”

·       Mr Daniel emailed his investigation report to HR on 7 October 2023 and stated the matter should proceed to the disciplinary process.

·       An outcome letter was sent to the Complainant on 13 October 2023. The following points were outlined as the reasons that the matter progressed to the disciplinary stage:

·       “It is clear from the investigation that you displayed dangerous behaviour, fighting or physical assault.

·       You admitted to not following the correct processes and procedures of the company.

·       This is Gross Misconduct under our Disciplinary Policy”.

·       A letter inviting the Complainant to a disciplinary hearing on Monday 16 October 2023 was sent to him on 13 October 2023. A copy of the disciplinary policy was also included

·       The hearing was conducted by Mr Witold Fender (Operations Manager). Mr Aidan Maxwell (note taker), the Complainant and Mr Brian Wilders (Colleague) were also present. A discussion was held regarding this issue, including how long the Complainant was working for the respondent, what training he received and the incident in question.

·       Following the hearing, Mr Fender emailed Ms McGrath on 20 October 2023 stating that he considers the Complainants actions as gross misconduct and recommend dismissal based on:

·       “Dangerous behaviour, fighting or physical assault” - as employee admitted he was involved in the fight with the customer,

·       “Failure to carry out instructions and follow the Company’s rules and procedures” which caused damage to the Company name – as employee admitted he didn’t follow instructions passed to him during the trainings and didn’t follow company procedures.

The letter outlined that one week’s notice would be provided in line with the disciplinary policy and informed the Complainant of his right to appeal.

·       On 27 October 2023, the Complainant emailed Ms McGrath outlining the incident and attached a photograph of himself showing blood on his nose. The Complainant also posted a letter containing the same information to the Respondent.

·       Ms McGrath emailed the Complainant on 3 November 2023 to enquire if he wished to appeal the disciplinary outcome and if so to identify his grounds for appeal.

·       Ms McGrath emailed the Complainant again on 10 November 2023 to follow up on the previous email.

·       The Complainant responded to Ms McGraths email on 10 November 2023 stating that they misunderstood the fight, and he was trying to protect himself. He stated that he never got a verbal warning even though that is what is in their policy.

·       A letter inviting the Complainant to an appeal meeting on Wednesday 15 November 2023 was sent to him on 13 November 2023.

·       The appeal was heard by Ms Lorraine O Neill (Director of Security Services). Mr Patrick Roche (note taker), the Complainant and Mr Brian Wilders (Colleague) were also present. In summary, they discussed the incident, how long the Complainant worked for the Respondent and the training the Complainant received.

·       Ms O’Neill emailed Ms McGrath on 17 November 2023 stating that she decided to uphold the decision of summary dismissal due to the following:

·       The Complainant was involved in two incidents. Post the first incident the company took into consideration his impeccable record being an employee since 2020 and allowed him to resume his employment.

·       The second incident 4 weeks later was more of an aggravated incident, the Complainant did acknowledge his training. He also referred to the reality of working on the ground as opposed to training. Whilst this is a certain factor, and we are very mindful of the role and individual’s behaviours being a store detective and with the company providing all the relevant training and tools to be equipped to the role, she believed he acted in a manner which was not acceptable.

·       She took into consideration what the Complainant had said during the appeal meeting, but the incidents were clear and warranted the decision to dismiss to be upheld.

·       An outcome letter was sent to the Complainant on 20 November 2023 stating that the sanction of dismissal was upheld and listed the following reasons:

·       “You have been involved in 2 incidents of this nature and in the first instance consideration was given and a final written warning was issued.

·      The second incident was 4 weeks later and could not be self-defence.

·       You acknowledged that you have received and understand the relevant training but failed to follow it”.

·       The Complainant lodged his complaint with the WRC on 27 March 2023.

Respondent’s Position

·       The work of a security guard is to prevent security breaches from happening by proactively watching out for suspicious behaviour, mitigating risks as they appear and contacting law enforcement authorities when serious incidents are identified. Simply put, a security guard is expected to keep people, property, and assets safe and secure. That work requires a mix of risk assessment, judgement, and restraint in assessing threats and determining an appropriate response to provide in each situation.

·       The Complainant is a trained and experienced security guard who has worked with the Respondent for 4 years. The Complainant attended threats and violence training on 4 October 2022, this training shows employees what to do in threatening and violent situations. Section 2.3 of Appendix 35clearly outlines how a security officer should deal with shoplifters. The evidence above has shown that the Complainant departed from the standards expected of him in terms of his training and company rules. Instead of seeing to it that the shop lifter was controlled, and Gardai were called, he took it upon himself to avenge abusive behaviour towards the shop lifter. This behaviour had the potential to discredit the Respondent’s image and reputation as well as that of the client’s business and could have exposed both companies to civil claims. This conduct cannot be condoned, particularly for a person who had an active final written warning for a similar incident.

·       The evidence has shown that the customers in both incidents were abusive and aggressive, however it was the Complainant who initiated physical contact. During the incident on 7 July 2023, the complainant “grabbed the back of his jacket” and the video shows the Complainant stood over the customer while he was on the ground and punched him. During the incident on 21 September 2023, the Complainant “grabbed” the customer’s arm and the Complainant was seen pushing the customer.

·       Even if the customers in both situations were abusive and violent towards the Complaint, his actions must be considered as going beyond self-defence and be categorised as an attack in revenge of the customer’s conduct. The Complainant’s actions crossed the line and he also admitted this, where he took the law into his own hands instead of causing the customer to leave the store or calling for back-up support, restraining the customers and handing him over to Gardai.

·       Given the large numbers of security guards that the Respondent employs, it cannot tolerate such conduct as it is dangerous, risky and, as explained above, exposes it to claims and reputational damages. After the first incident, the Respondent would have been within their rights to dismiss the Complainant having determined through an impartial and fair process that he breached the Respondent’s policy on managing threats and dealing with abusive customers or shoplifters and engaged in dangerous behaviour. The initial sanction of a final written warning was lenient for such gross misconduct, having considered all the factors.

·       Given that a similar incident occurred eight days after the Complainant received a final writing warning, the Respondent was within their rights to dismiss the Complainant having determined through an impartial and fair process that he breached the Respondent’s policy and engaged in dangerous behaviour.

·       In accordance with the Unfair Dismissals Act 1997 – 2015, the dismissal of an employee shall be deemed not to be unfair if it results wholly or mainly from the conduct of the employee. Having considered all the facts, the responses and explanations of the Complainant were not considered reasonable nor sufficient such as to mitigate the extreme seriousness and far-reaching implications of his action.

·       In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

·       It is the Respondent’s position that a “reasonable employer in the same position and circumstances” would have reached the same determination in the circumstances of the within case. The Respondent has shown that it has a fiduciary duty to deal with employees who are accused of breaching its rules. This duty requires it to uphold and enforce its rules on how its employees are expected to handle shoplifters and deal with violent incidents, to protect the interests of its business, its employees, its clients, and members of the public who enter the premises that it is entrusted to protect.

·       In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the accused of wrongdoing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

·       At the core of any organisation is the need for satisfactory standards of behaviour and conduct. The Respondent’s Disciplinary Policy is very clear that “dangerous behaviour, fighting or physical assault” are forms of gross misconduct. The policy is also very clear that you are “liable to summary dismissal if you are found to have acted in any of the following ways”. As such, the Respondent’s decision to dismiss was reasonable, fair, and appropriate in the circumstances, and no unfair dismissal took place.

·       The Complainant noted in his claim that he was given a final written warning straight for the first incident and after the second incident he was dismissed. The Respondent acted in line with their disciplinary policy and imposed a progressive sanction short of dismissal at first due to mitigating circumstances.

·       The subsequent actions of the Complainant destroyed the company’s trust and confidence in him and rendered the continuation of the employment relationship impossible, therefore justifying dismissal. This position has been upheld by the Employment Appeals Tribunal on several occasions, including in Knox Hotel and Resort Ltd, UD 27/2004 where the Tribunalstated that:

“[The claimant’s actions] destroyed the respondent’s trust and confidence in the claimant and rendered the continuation of the employment relationship impossible, thereby justifying her summary dismissal”.

·       The dismissal of the Complainant was procedurally as well as substantively fair. The Respondent adhered to fair procedures and the company’s policy, the Code of Practice on Grievance and Disciplinary Procedures (S.I.146/2000) and the universal principles of natural justice at all times prior to dismissal.

·       The Complainant was made fully aware of the allegations against him.

·       The Complainant was provided with an opportunity to respond fully to all allegations against him. He was met with and questioned as part of the investigation process, and a through disciplinary meeting was held where he was provided with a full and fair opportunity to present his case.

·       He was offered the right to representation as per the rules of natural justice and a colleague attended as his representative.

The Complainant afforded a fair and impartial determination of the issues. All relevant information and evidence pertaining to the matter was taken into consideration. Furthermore, the parties who were involved in the decision-making process were impartial and not previously involved with the process.

·       He was advised of and availed of is right to appeal.

·       The Respondent contends that the actions of the Complainant contributed fully to his dismissal by reason of gross misconduct. Accordingly, it is the Company’s position that the Complainant is not entitled to seek any redress under the Unfair Dismissals Acts 1997 – 2015. This is in accordance with the position taken by the Employment Appeals Tribunal on multiple occasions, including in Murray v Meath County Council UD43/1978 , where the Tribunal saw appropriate not to award any redress to the Complainant considering his inappropriate actions.

·       Furthermore, the Respondent submits that should the Adjudication Officer find in favour of the Complainant, the amount of any award of compensation must be reasonable in light of all the circumstances and take into consideration the financial loss incurred by the Complainant, including the duty to mitigate his losses, since his date of dismissal.

Conclusion

a)    To conclude, it is the Respondent’s position that there was no breach under the Unfair Dismissals Act 1997 – 2015. The Respondent’s decision to dismiss the Complainant is fully justified as it was based on a full investigation, disciplinary and appeal process.

b)    The Respondent respectfully requests that the Adjudicator finds in favour of the Respondent company. The Respondent reserves the right to submit further arguments and evidence at any stage during the hearing.

The respondent  representative has correctly pointed out the function of the Adjudication Officer in complaints of this nature:

·       In relation to the sanction imposed by the Respondent, the principles to be applied in cases of gross misconduct have been clearly established over time, and the test as set out in Looney & Co. Ltd v Looney, UD 843/1984 is as follows:

“It is not for the Tribunal to seek to establish the guilt or innocence of the claimant, nor is it for the Tribunal to indicate or consider whether we, in the employer’s position, would have acted as he did in his investigation, or concluded as he did or decided as he did, as to do so would substitute our mind and decision for that of the employer. Our responsibility is to consider against the facts what a reasonable employer in the same position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s action and decision be judged.”

·       In O'Riordan versus Great Southern Hotels [UD1469-2003], the EAT stated as follows:

"In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the accused of wrongdoing. The test for the Tribunal in such cases is whether the Respondent had a genuine base to believe, on reasonable grounds, arising from a fair investigation that the employee was guilty of the alleged wrongdoing."

This raises two questions that have to be answered:

1.       Did the respondent follow the correct procedures?

2.       Was the outcome, an outcome that a reasonable employer would have made?

I note that the respondent has stated:

·       The dismissal of the Complainant was procedurally as well as substantively fair. The Respondent adhered to fair procedures and the company’s policy, the Code of Practice on Grievance and Disciplinary Procedures (S.I.146/2000) and the universal principles of natural justice at all times prior to dismissal.

·       The Complainant was made fully aware of the allegations against him.

·       The Complainant was provided with an opportunity to respond fully to all allegations against him. He was met with and questioned as part of the investigation process, and a through disciplinary meeting was held where he was provided with a full and fair opportunity to present his case.

·       He was offered the right to representation as per the rules of natural justice and a colleague attended as his representative.

The Complainant afforded a fair and impartial determination of the issues. All relevant information and evidence pertaining to the matter was taken into consideration. Furthermore, the parties who were involved in the decision-making process were impartial and not previously involved with the process.

·       He was advised of and availed of is right to appeal.

I’m not in a position to disagree with the respondent. Fair procedures were followed, facts were obtained and a decision was made based on those facts. The decision to dismiss the complainant was a decision, I believe, that a reasonable employer would make.

It is for these reasons that I have to decide that the complaint is not well-founded.

I’m not in a position to disagree with the respondent. Fair procedures were followed, facts were obtained and a decision was made based on those facts. The decision to dismiss the complainant was a decision, I believe, that a reasonable employer would make.

It is for these reasons that I have to decide that the complaint is not well-founded.

Unfair Dismissal Act, 1977.