ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001392

Complaint for Resolution:

Date of Adjudication Hearing: 16/05/2016

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 8(1B) of the Unfair Dismissals Act, 1977, and 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.

 Background

The Complainant was employed as a Security Guard from 9^th August 2014 until the employment was terminated without notice on 12^th October 2015. The Complainant was paid €10.01 an hour and he worked varied hours. The Complainant was provided with a written statement of his Terms and Conditions of employment, including the Grievance and Disciplinary Procedures of the Company.

The Complainant referred a complaint to the Workplace Relations Commission on 11^th January 2016 alleging he had been unfairly dismissed.

Summary of Respondent’s Position.

The Complainant was on certified sick leave from his employment with the Respondent following an injury while at work. The Respondent was made aware during a phone call to the Respondent that the Complainant was employed as a Security Guard with another named Employer during his employment with the Respondent. The Respondent decided to engage the services of a Private Investigator. A number of surveillance operations were scheduled and ion two of these occasions the Complainant was observed working, once on Friday 17^th July 2015 and again on Friday 24^th July 2015. The Hearing was provided with a copy, including photographs, of the surveillance report.

The Complainant was invited to attend an Investigation/Disciplinary Meeting on 10^th August 2015. The allegations were set out and the Complainant was informed of his right to bring a representative to the meeting which would be conducted in accordance with the Company procedures. The investigation was concluded on 21^st September 2015 due to the failure of the Complainant to attend a number of scheduled meetings.

A Disciplinary Hearing was convened for 8^th October 2015. This was adjourned to 12^th October 2015 at the Complainant’s request/. The Complainant did not attend the meeting agreed for 12^th October 2015 even though the Complainant was informed the meeting would proceed in his absence.

The Complainant was dismissed by letter dated 12^th October 2015. He was afforded a right of appeal. The Complainant appealed and the appeal was conducted on 13^th November 2015. The Complainant attended accompanied by his Trade Union Representative. Following a full hearing the grounds of the appeal were rejected.

The Respondent alleged that –

-          The Complainant submitted sick certificates from hi GP claiming he was unfit for work but that during this sick leave the Complainant had worked as a Security Officer with another named Employer. This was notified to him by letter dated 4^th August 2015

-          The Complainant had been involved in improper communication by email with the media regarding the business of the Company. Email was attached in a letter dated 14^th September 2015

-          The Complainant had been in touch with a competitor regarding their contract with a named business client of the Respondent where the Complainant was employed. This was communicated to the Complainant by letter dated 16^th September 2015.

-          The Complainant was provided with a copy of the Investigation Report of 21^st September 2015

-          The Complainant was notified of the outcome of the Disciplinary Meeting by letter dated 12^th October 2015. The Complainant appealed on the basis that sufficient weight was not given to the circumstances of his second employment – that sufficient weight was not given to his explanation in relation to the email to the media and that the Disciplinary Hearing of 12^th October 2015 was flawed as the respondent had refused to reschedule this meeting and the Appeal was heard on 13^th November 2015. The Complainant was notified of the outcome on 20^th November 2015.

Summary of Complainant’s Position.

The Complainant has been employed with the Respondent from 9^th August 2014. The Complainant sustained an injury while at work on 31^st May 2015 and was declared unfit to attend work by his GP. While the Complainant was on certified sick leave an anonymous phone call was made to his Employer that he was working in another establishment. The Respondent Company then employed a surveillance company to follow the Complainant and to provide evidence of another employment. The Complainant contended that he had never made a secret of the fact that he had a second employment. This he alleged was due to a lack of security of contracted hours with the Respondent. The Complainant asserted that his second employment, which also included security work, this did not pose a risk to his person. The Complainant also asserted that his GP focused on his employment with the Respondent when declaring him unfit for work.

The Complainant was invited to attend an investigation meeting on several occasions even though he was declared unfit to work. The Complainant was subsequently declared unfit for work due to stress brought about by the pressure from the Respondent to attend meetings.

The Respondent alleged he did not disclose his second employment. They further alleged that he was claiming injury sick pay from the Company while being employed elsewhere. The Complainant stated he was not entitled to claim injury sick pay from the Company as he had did not have the necessary service. The Complainant did acknowledge that he had received some payments from the Company Sick Pay Scheme. A further allegation was also made that the Complainant had sent an email which sought to undermine the Respondent. The Complainant denied this. However he did confirm that he had sought to raise concerns under an Act of the Oireachtas in relation to safety issues.

The Complainant is seeking reinstatement. The Complainant confirmed that he continues to work in his second employment on a Friday, Saturday and Sunday. He was asked to provide evidence of this employment but did not do so. The Complainant also stated at the Hearing that he did not claim Jobseekers Benefit from the Department of Social Protection. Again he was requested to provide a statement from the Department but did not do so.

Findings.

On the basis of the evidence and written submissions from both Parties I find as follows: - Both Parties confirmed that the Complainant had been issued with a written statement of his Terms and Conditions of Employment, which included the Grievance and Disciplinary Procedures of the Company.

-          Both Parties confirmed that the Complainant had been on certified sick leave since June 2015 and this certificates clearly state that the Complainant is unfit for work. These do no state that the Complainant was unfit to work only with the named Respondent.

-          Both Parties confirmed that the Complainant had received two payments from the Respondent in relation to an Injury at work even though he did not qualify for these payments as he did not have the necessary service.

-          The Complainant confirmed both at the Investigation, Disciplinary and again at the Hearing that he had been employed with the second named Employer since 2012. Both Parties confirmed at the Hearing that the Complainant did not inform the Respondent that he had been employed in a second employment during the course of his employment with the Respondent.

-          The Complainant confirmed that he had continued to work in the second employment while being certified unfit for work.

-          The Respondent conducted an investigation and the Complainant was represented and he was provided in advance with all the allegations against him.

-          The Respondent requested the Complainant to attend a Disciplinary Hearing on 8th October 2015. This was rescheduled to 12^th October 2015 in agreement with the Complainant’s SIPTU Official. The Complainant did not attend and as indicated the Respondent proceeded and found against the Complainant in relation to two of the allegations. The Complainant was afforded a right of appeal which he exercised.

-          The Appeal was heard on 13^th November 2015 and the four grounds of appeal were considered. The outcome of the appeal was to uphold the decision to dismiss the Complainant effective from 12^th October 2015.

I find that the Complainant was afforded fair procedures and natural justice in relation to the Investigation, Disciplinary Hearing and the Appeal. I note that in relation to the outcome that the Respondent upheld two of the allegations against the Complainant, namely that he was working while on certified sick leave and that emails had been sent from his phone to the media. The third allegation was not upheld as the Respondent confirmed they did not have direct evidence to uphold the allegation

I note that the Complainant failed to provide information as requested at the Hearing in relation to his employment with the second named Employer and to his statement that he did not claim Jobseekers from the Department of Social Protection.

Decision.

On the basis of the evidence and my findings above and in accordance with Section 8 of the Act I declare the complaint of unfair dismissal is not well founded.

DATE:    18^th July 2016