Cape Wrath Hotel Ltd Citywest Hotel (Represented by Irish Business and Employers' Confederation) v Nicholas Reddin (Represented by Mr Simon Donagh B.L Instructed by Sean Ormonde, Solicitors)
| Jurisdiction | Ireland |
| Judgment Date | 15 March 2018 |
| Judgment citation (vLex) | [2018] 3 JIEC 1502 |
| Docket Number | FULL RECOMMENDATION DETERMINATION NO.UDD1817 ADJ-00003158 CA-00004462-001 |
| Date | 15 March 2018 |
| Court | Labour Court (Ireland) |
Labour Court (Ireland)
FULL RECOMMENDATION
UD/17/93
DETERMINATION NO.UDD1817
ADJ-00003158 CA-00004462-001
Chairman: Mr Foley
Employer Member: Mr Marie
Worker Member: Mr Hall
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
1. Appeal of Adjudication Officer Decision No.ADJ-00003158.
2. The Employee appealed the Decision of the Adjudication Officerto the Labour Court on 15 June 2017 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 9 January 2018. The following is the Determination of the Court:
This matter comes before the Court as an appeal by Nicholas Reddin (the Appellant) against a decision made by an Adjudication Officer in his complaint under the Unfair Dismissals Acts, 1977 to 2015, that he had been unfairly dismissed by his then employer Cape Wrath Hotel Limited (the Respondent).
The Adjudication Officer made his decision on 5 th May 2017 and this appeal was received by the Court on 14 th June 2017. The Adjudication Officer found against the Appellant and his complaint was dismissed.
The Appellant was employed by the Respondent from 21 st January 2006 as a Security Operative until his dismissal on 10 th December 2015. The Appellant received a salary of €550.00 per week. The fact of dismissal is not in dispute.
The Respondent operates a hotel. On 1 st November 2015, a female guest made a complaint regarding the Appellant as regards his actions on the night of 31 st October / 1 st November 20156.
The guest stated that she was approached by a Security Guard, the Appellant, in the early hours of Sunday morning in the hotel bar. She complained that the Appellant had told her that he was aware that she had been kissing a man on the Friday night and that he had CCTV footage of it and had been watching it.
The guest complained that the Appellant had brought her and her female friend to the security base and showed her CCTV footage of herself and the male person. The Guest stated that the Appellant had made lewd comments to her while playing the footage.
The Respondent's operations manager, Mr JO'F, contacted the client who had arranged the event which the guest was attending and the client re-stated the complaint and emphasised the seriousness of the incident.
The guest called to the hotel on Tuesday 3 rd November and she complained that she and a female friend were approached by a security guard who had shown them CCTV footage and who subjected herself and her friend to offensive and inappropriate language and that several sexual remarks were made towards her. The guest was asked to provide a written statement which she subsequently did.
The Appellant approached a female guest in the hotel lounge and, according to his account given at a disciplinary hearing, after she ‘ got smart with him’ he asked her if ‘ she knew what she did the night before’. According to his own statement, provided as part of the investigation process, ‘ she said something I can't remember what it was and I said do you remember the way you were carrying on last night’ …‘you and a male in private area of the hotel for staff acting inappropriate’
This grave misbehaviour was compounded by his then informing the guest that he had seen CCTV footage of her with a male friend and his offering to show the footage to the guest. The Appellant brought the guest into the security base without the authorisation of management and consequently in breach of security procedures. The Appellant further breached those procedures by showing the CCTV footage to the guest in the presence of another security guard, MH, who was his supervisor.
In the event that the Appellant had considered what he had seen on the CCTV to be an assault on the premises he was obliged to report that to the security manager, HR and the Gardai via an incident report. The claimant did none of these things.
When considering the appropriate sanction, the Respondent had regard to the seriousness of the allegations and to the account given by the Appellant in response to those allegations.
The Respondent wrote to the Appellant on 2 nd November 2015 and invited him to attend an investigation meeting. That letter advised the Appellant of the allegations being made as regards events of 31 st October / 1 st November 2015 and notified him of his suspension. The Appellant was unable to attend that scheduled meeting.
A second letter issued to the Appellant on 13 th November 2015 inviting him to an investigation meeting on 17 th November 2015. Enclosed with that letter was a copy of the written statement made by the guest which gave rise to the investigation. That investigation meeting was carried out by Ms CF accompanied by Ms SW, both of whom were HR officials with the Respondent.
A second investigation meeting was held on 24 th November 2015 again chaired by Ms CF. At that meeting the Respondent confirmed that the investigation process was concluded and that the matter would then proceed to a disciplinary hearing.
A disciplinary hearing took place on 26 th November which was chaired by Ms LL, Financial Controller for the Respondent accompanied by Mr SR.
By letter dated 9th December 2015 the Appellant was invited to a disciplinary outcome meeting with Ms LL which took place on 10th December. At that meeting the Appellant was informed that he was to be dismissed for gross misconduct with immediate effect. A letter issued to the Appellant on that date advising him that
‘due to the nature of the allegations against you, all of which you accepted to be true, the company was left in a position where the bond of trust between the employer and the employee had been completely destroyed, rendering your position with the company untenable’
That letter also advised the Appellant of his right of appeal and the arrangements in place for the making of such an appeal.
An appeal hearing took place with Mr AS, Group Director on 14 th December 2015 following which the decision to dismiss the Appellant was upheld.
The Respondent submitted that a fair, transparent and thorough disciplinary process had been followed. The Respondent decided to dismiss the Appellant. That decision was proportionate and is what a reasonable employer in the same position and circumstance would have done.
The Appellant had no record of ill discipline prior to the incident at issue in the within matter.
At no time during his employment was the Appellant provided with procedures regarding who could or could not be permitted to enter the security base and neither was he ever given verbal instructions or guidelines in that regard. In practice, non-security personnel and persons who were not members of staff were often permitted entry to the base.
On 30 th October into 31 st October the Appellant was stationed in the security base of the hotel which houses the screens that receive CCTV footage from the cameras placed throughout the premises. During the course of that shift a colleague security guard, Ms BO'N, informed him that a couple had been engaging in a sexual act in one of the restricted areas of the hotel. She said that she had explained to the couple that that the location was not an area to which guests had access and they had left.
The Appellant later noticed a guest in a very intoxicated state and learned it was the female guest who had been involved in the incident described by Ms BO'N. At the end of his shift on the morning of 31 st October he left the premises.
The Appellant next reported for work on the evening of 31 st October. When he reported to the security base his direct supervisor, Mr MH, showed him CCTV footage which depicted a couple engaged in a sexual act on a corridor. He identified the female guest as the lady he had seen in an intoxicated state the previous morning. He was a little concerned by what he saw because it seemed that the parties involved, especially the female, were inebriated.
When clearing the lounge in the early hours of the following morning he began speaking to two female guests who were seated in the bar area, one of whom he immediately recognised as the female guest he had seen on the CCTV footage. He asked her if she had any memory of the night before and where she had been or what she had been doing. When he indicated that he had CCTV footage of the guest in a compromising position she asked to see that footage.
The Appellant was worried for the guest and when she asked to see the footage he agreed.
When he arrived at the security base with the guests the door was locked and Mr MH allowed them to enter. Mr MH then played the CCTV footage. Because of the guest's behaviour and inappropriate comments the Appellant insisted that they leave the security base and return to the public area of the hotel which they did.
The Appellant was informed on 2 nd November that a complaint had been made against him and that he was being investigated for gross misconduct. He was not informed of the identity of the guest who had made the complaint against him and he was prohibited from making contact with that person.
Investigation meetings took place on 17 th and 24 th November 2015 and a disciplinary meeting took place on 26 th November 2015.
The Appellant was not given an opportunity to question any of the following people in relation to what had happened and their version of events:—His colleague BO'N...
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