Labour Court Database __________________________________________________________________________________ File Number: CD89750 Case Number: AD8985 Section / Act: S13(9) Parties: PARAGON SECURITY SERVICES LIMITED - and - IRISH TRANSPORT AND GENERAL WORKERS' UNION |
Appeal by the Union against Rights Commissioner's Recommendation C.W. 220/89 concerning the dismissal of a worker.
Recommendation:
5. Having considered the submissions from the parties the Court
does not find adequate grounds for altering the Rights
Commissioner's recommendation.
The Court accordingly rejects the appeal and so decides.
Division: Ms Owens Mr Keogh Mr O'Murchu
Text of Document__________________________________________________________________
CD89750 APPEAL DECISION NO. AD8589
INDUSTRIAL RELATIONS ACTS, 1946 TO 1976
SECTION 13(9)
PARTIES: PARAGON SECURITY SERVICES LIMITED
(REPRESENTED BY THE FEDERATION OF IRISH EMPLOYERS)
and
IRISH TRANSPORT AND GENERAL WORKERS' UNION
SUBJECT:
1. Appeal by the Union against Rights Commissioner's
Recommendation C.W. 220/89 concerning the dismissal of a worker.
BACKGROUND:
2. The worker concerned commenced employment with the Company as
a security guard on the 24th May, 1988. He was initially placed
on a six months probation period and this was extended for a
further three months as the Company maintain that his previous
probation had been unsatisfactory. He was advised by Management
that his work performance would be closely monitored during the
extended period. He had previously received warnings about
breaches of Company regulations and not completing the duty log to
record incidents which occurred during his shift. He had received
a final written warning on the 10th March, 1989. On the 18th
March, 1989 the worker was on duty at a location in Blackrock, Co.
Dublin. He was on a 10 p.m. to 6 a.m. shift. During one of his
patrols he received an eye injury as the result of a stone
throwing incident. His injury was treated by a duty night nurse
and his supervisor was called to the scene. The supervisor
reported the incident to the Gardai and the worker concerned made
a statement to them about the incident. The worker then resumed
his patrol and finished his shift at 6.00 a.m. The Company claims
that the worker again breached regulations by not completing the
log and by not wishing to have the Gardai called to the scene. At
a subsequent meeting with the Company on the 19th April the worker
was advised by Management that his employment was being
terminated. The Union rejected the Company's action on the
grounds that, in the special circumstances obtaining at the
incident, the omission by the worker was purely an oversight. The
dispute was referred to a Rights Commissioner on the 9th October,
1989. On the 13th October, 1989 the Rights Commissioner issued
his recommendation as follows:
"I recommend that the Union and the worker accept that the
dismissal was fair."
(The worker was named in the Rights Commissioner's
recommendation). The Union rejected the recommendation and on the
27th October, 1989 appealed it to the Labour Court under Section
13(9) of the Industrial Relations Act, 1969. A Court hearing was
held on the 24th November, 1989.
UNION'S ARGUMENTS:
3. 1. The Company's decision to dismiss the worker concerned, on
the basis of the incident in which he was an innocent victim,
is indefensible. The Company's suggestion that the worker
refused to call the Gardai is not true. The Company's
statement that the worker's failure to complete the duty log
deserves dismissal ignores the fact that the worker, despite
his injury continued and completed his duty. He had given the
details of the incident to his supervisor and made a statement
to the Gardai.
2. The Union contends that if there was a neglect of duty on
this occasion then it was the fault of the Company. It must
be noted that this was a situation where an employee was
injured in an assault and yet he was allowed to carry on
working. Any reasonable employer would have insisted that the
worker go home and arrange transport for him if necessary, no
matter how the person felt about continuing with his duty.
Not to do so was ignoring the possibility of shock and after
effects of the assault.
3. The Company refers to the written warning issued to the
worker in March, 1989 as the result of a previous incident.
The Union does not dispute receipt of this warning. However
it is most unreasonable that this is taken into account in a
situation where a worker is accused of neglect of duty
following an assault. The worker was the innocent victim of
an assault and surely this must be considered as extenuating
circumstances in the situation where he did not perform his
duty correctly. The incident of the 18th March must be
considered an exceptional situation and looked at in isolation
from previous warnings. Not to do so is unfair to the worker
who was trying to improve his record. The Union asks the
Court to recommend that he be re-instated and compensated for
the period involved.
COMPANY'S ARGUMENTS:
1. When the supervisor arrived at the location where the incident
occurred he observed a small cut over the worker's left eye.
At this point the Gardai had not been called by the worker
concerned who said it was not necessary to call them. The
supervisor then called the Gardai and advised the worker to go
home. The worker insisted that he was alright and was able to
complete his duty. The worker failed to carry out the
following duties that night:-
1. He failed to record any details of the stone throwing
incident in the duty log.
2. He failed to notify the Gardai.
3. He failed to record his injury and subsequent
treatment by the night nurse in the log.
4. He failed to record the arrival and departure of the
Gardai in his log.
5. He failed to leave any written report for the client
on the incident. Given that the worker concerned had
received a final warning for past breaches of Company
regulations Management were left with no option but to
dispense with his services.
2. It is the custom and practice of the Company to enter into
a written agreement with its employees which is signed by both
parties. This certifies the worker's knowledge of and
acceptance of his conditions of employment. A copy of the
agreement is available on each job for each reference at any
time by any employee. Included in the agreement are the
disciplinary procedures which also include dismissal as is set
out in Section 30 (details supplied to the Court). During the
worker's comprehensive training programme he was made fully
aware of his rights, duties, responsibilities and obligations
under this contract of employment. From the commencement of
his employment with the Company the worker's performance and
conduct were unsatisfactory.
3. The worker's probationary period was extended by the
Company. At the end of the extended period of probation he
was retained in employment on condition that the Management
would continuously monitor his performance. He received a
final warning after investigation and representation for his
performance and conduct on 10th February, 1989. After this
final warning was issued, the worker clearly understood and
accepted that his "work would be closely monitored in the
future" and should the Company "find any discrepancies" in his
work he would be dismissed. At all times the Company has
strived to improve the worker's performance and conduct and to
retain him in employment.
4. His performance had put at risk other employee's jobs and
he could not be relied upon to carry out his duties which he
was trained for and which have been set out in writing.
Despite intensive training and assistance the worker has
failed to reach the required standard. Accordingly, the
Company had no option but to dismiss him. The Company
therefore strongly contend that given the preceding
circumstances its decision to dismiss the worker was both fair
and reasonable.
DECISION:
5. Having considered the submissions from the parties the Court
does not find adequate grounds for altering the Rights
Commissioner's recommendation.
The Court accordingly rejects the appeal and so decides.
~
Signed on behalf of the Labour Court
Evelyn Owens
_______________________
4th December, 1989 Deputy Chairman.
T.O'D./J.C.