Gordon Deegan
A security officer working on the Luas was fired after CCTV footage captured him riding a child’s bicycle around a Luas platform close to moving trams.
During the 11-minute incident, the security guard, in uniform, could be seen cycling up and down the heavily populated platform, weaving in and out of members of the public and cycling next to moving trams and waving to passengers.
The security guard - on a final written warning for poor time keeping and attendance at the time - was sacked for gross misconduct in September 2019.
The security guard’s behaviour on the day of June 5th 2019 was deemed by his un-named employer “not only to be dangerous to himself but also to passengers on the platform and those travelling on the Luas”.
The man sued for unfair dismissal at the Workplace Relations Commission (WRC).
Reasonableness
However, WRC Adjudicator, Niamh O’Carroll Kelly has found that the decision to sack the security guard “was within the band of reasonableness”.
Ms O’Carroll Kelly stated that the security guard “was the author of his own misfortune”.
Ms O’Carroll Kelly concluded that she could find “no breach of the complainant’s rights which could render the decision to dismiss him unfair”.
She stated that the security guard was on a final written warning at the time of the incident of June 5th 2019 and he was fully aware of that having had its duration reduced on appeal.
The employer pointed out to the WRC that Luas by-laws forbid the use of skateboards and other devices with wheels on the tram platforms.
The hearing was told that the reason for this particular by-law, is because the platforms tend to be packed with people at various times of the day and the risk of accidents are significantly increased due to the concentration of people and their close proximity of the moving trams.
Furious
The man's employer has a contract with another un-named company, and they were made aware of the bike incident during a weekly management meeting with the company.
The company left the man's employer in no doubt that they were furious about the incident and stated that it tarnished both their reputation and the reputation of the man's employer.
The employer told the WRC that the decision to terminate the security guard’s employment was within the band of reasonableness.
The employer argued that this was taking into account the seriousness of the security guard’s actions and the danger he put not only himself in but the passengers and other employees of the respondent who were on the Luas at the time and the fact that he was on a final written warning.
The security guard was employed in his role since December 2015. His employer regarded him as a good employee, but there was an ongoing issue in relation to his time keeping.
Promotional position
The employer argued that the security guard’s behaviour changed following an unsuccessful attempt for a promotional position, and he became withdrawn and very difficult after that.
SIPTU official, Des Courtney represented the security guard in the case and Mr Courtney argued that the decision to dismiss the security guard was disproportionate.
Mr Courtney stated in light of the fact that the security guard was not suspended and allowed to work on until the date of his dismissal, the decision to dismiss for gross misconduct is fundamentally unfair.
However, addressing this ‘novel argument’, Ms O’Carroll Kelly stated that whilst this is a case where the employer could easily have justified suspending the security guard, they took a more conservative approach, and one which was less damaging to the man’s reputation by leaving him in his role until the conclusion of the disciplinary process.
She stated: “There is no legal obligation on a respondent to suspend an employee during the disciplinary process nor are they barred from a finding of gross misconduct if they opt not to suspend.”
