EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Nightsafe Security Services Limited UD1324/2014
- Appellant
against the recommendation of the Rights Commissioner in the case of:
Sean Irwin
- Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms. M. McAveety
Members: Mr. L. Tobin
Mr O. Nulty
heard this appeal at Monaghan on 21st March 2016
Representation:
Appellant(s) : Peninsula Business Services (Ireland) Limited, Unit 3 Ground Floor, Block S,
East Point Business Park, Dublin 3
Respondent(s) : Mr. Niall Phillips, Assistant Branch Organiser, SIPTU, Liberty Hall, Dublin 1
This case came before the Tribunal by way of an appeal by an employer against the recommendation of a Rights’ Commissioner References: r-142823-ud-14/SR.
The determination of the Tribunal was as follows:-
Background:
The respondent (employee) was employed as a Security Officer on the premises of one of the appellant’s clients (MCC) in Monaghan town from the 5th December 2005 to the 5th December 2013 on a weekly gross wage of €510.43. The respondent had worked on this site for a previous employer for a period of seven years.
On the 18th October 2013 the client contacted the appellant to request the removal of the appellant from their site. A vehicle had been stolen from the premises five days previously, which was the second time this has occurred while the respondent was on duty, the first being seven years previous.
The appellant notified the respondent on the 21st October 2013, an investigation took place and the appellant found the respondent was not responsible for the incident. The appellant discussed the matter at length with the client. The client wanted the respondent removed from their premises despite the appellant making representations on the respondent’s behalf. Alternative positions were offered to the respondent - temporary work in Dublin or a position in Roscrea, Co. Tipperary. The respondent turned down the offers.
On the 5th December 2013 the appellant dismissed the respondent quoting “third party pressure” or “some other substantial grounds” as grounds for his dismissal. The respondent appealed the decision citing he was entitled to a redundancy payment. The appeal was rejected. The respondent filed a claim for unfair dismissal before the Rights Commissioners who found he was unfairly dismissed and awarded him €13,000.00. The appellant appealed the decision to the Employment Appeals Tribunal.
Appellant’s Position:
The Contracts Manager (FM) and the Managing Director (TH) gave evidence. They submitted that a thorough investigation was carried out and it was found the respondent had no involvement in the theft of MCC’s vehicle. The management of MCC also agreed but they, MCC, did not want the respondent to remain working on their premises.
FM told the Tribunal that had spoken to management of MCC and was told that the appellant could lose the contract if the respondent was not removed from their site. When put to him FM could not say when the respondent had been informed what the management of MCC had said regarding the security contract.
TH told the Tribunal that a full investigation had been carried out. He said that there had been no alternative but to dismiss the claimant. When asked why redundancy had not been an option TH replied that having discussed the matter with their HR department he was advised a redundancy situation did not occur and that the decision to dismiss the respondent had been and “economic” one.
TH told the Tribunal that he felt MCC had used the respondent as a “scapegoat” in this matter.
Respondent’s Case:
The respondent gave evidence. He stated that he had commenced employment on MCC’s premises in 2005 with another employer. The appellant took over the site on the 9th October 2012 and he remained onsite. There were no disciplinary issues with the respondent. On the night in question the respondent was performing his duties as per his instructions when MCC’s vehicle was stolen. This incident was witnessed by two of MCC’s employees. Following an investigation it was established the respondent had no hand, act or part in the theft of the vehicle.
The respondent told the Tribunal that he felt he should not have been dismissed over the incident of which he had no part. He stated the alternative positions offered to him were unsatisfactory, one being temporary in Dublin and the other some 450 kilometres round trip away from his home.
The respondent gave evidence of the mitigation of his losses and the position and salary he received in the employment he had secured since his dismissal.
Determination:
The Tribunal have carefully considered the sworn evidence and submissions adduced in this matter.
There was no dispute in the facts of this case or that the respondent was completely blameless in relation to the theft of MCC’s vehicle on the night of the 13th October 2013.
The alternative positions offered to the respondent were unrealistic due to their location and, in one case, duration.
The Managing Director of the appellant company stated that the decision made by the Directors of the appellant company was of an “economic” nature and the Tribunal finds this is unjust and not a substantial ground to dismiss an employee.
Taking all the circumstances into consideration the Tribunal finds the respondent was unfair dismissed. Accordingly, the Tribunal uphold the Rights Commissioners Recommendation and awards the respondent the sum of €13,000 (thirteen thousand euro) under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)