ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00000270
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00000408-001 | 23/10/2015 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00000408-002 | 23/10/2015 |
Date of Adjudication Hearing: 08/03/2016
Workplace Relations Commission Adjudication Officer: John Tierney
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation:
I was dismissed by letter dated the 4th June 2015, a copy of which is attached, citing gross misconduct as the reason for same. It is quite clear from this letter that my case was prejudged by the company and they unfairly dismissed me having been in the employment of the company or previous undertakings since 2003. A letter of appeal was submitted by my solicitor on the 11th June 2015 setting out my appeal, a copy of which is attached. Further correspondence was sent by my solicitor on the 17th July 2015 seeking written confirmation of the outcome of the appeal. I had been advised at a meeting on the 29th June 2015 that I had the choice of being dismissed or working on a security contract with another company which was highly unsuitable. Such was confirmed by letter dated the 27th July 2015. Such letter placed me under duress and sought to put me in a position where I must accept a unilateral change to my terms and conditions of employment or in the alternative be dismissed. Following subsequent correspondence between my solicitor and my employer, on the 22nd September 2015 I was informed that my employment was terminated with the company. In the same letter, the Respondent further stated that “The company cannot put the contract at risk because of your actions”. From the perusal of the letter, it is clear that no complaint was made by the client of the Respondent and therefore to state this is disingenuous. Such concluded a highly improper disciplinary procedure which failed to meet the standards of fairness and natural justice. Following on from the internal appeal process I was issued an ultimatum the object of which was to obtain the termination of my employment with the company. On such decision being questioned the objections of external parties were offered up to justify my dismissal. In addition the ultimate sanction of dismissal was excessive and disproportionate in the extreme. |
I was dismissed summarily and did not receive my statutory notice on the termination of my employment. |
The Respondent sought to procure a dismissal of the Claimant by way of flawed disciplinary procedure and secondly, and in an effort to correct such flaws, by an ultimatum of alternative employment which was detrimental to the Claimant or dismissal.
Respondent’s Submission and Presentation:
In a letter from the Security Operations Manager to the Claimant it was confirmed that he was suspended with pay for the alleged matters;
Presenting for work in an unfit manner
Consuming alcohol during working hours.
Engaging in gambling within a licensed premises during working hours
Sleeping during work hours.
The respondent outlined the procedures used as per the Claimant’s contract and good practise. He was show a copy of CCTV footage in regard to the above matters. Following the investigation and disciplinary procedures it was decided that his behaviour was tantamount to gross misconduct and they had not choice but to terminate the employment relationship.
However, on appeal it was decided to offer the Claimant an alternative posting. This was mainly due to his long service (18 years). However, the Claimant solicitor who argued that the alternative posting was unsuitable but it was the only available vacancy at the time. After prolonged efforts to accommodate him and the refusal of the client to take him back on site due to his behaviour, there was no alternative but to let him go.
In regard to the Claimant’s solicitor’s claim that the client did not make a complaint. It was, in fact, the client who asked the Claimant to leave the premises on the day of the incidents.
Decision:
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
[Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 9(3) of the Protection of Employees (Employers’ Insolvency) Act, 1984 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 9(4) of that Act.
Section 79(6) of the Employment Equality Act, 1998 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 82 of the Act.
Section 25 of the Equal Status Act, 200 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.]
Issues for Decision:
Was the dismissal fair in the circumstances?
If it was did it gross misconduct constitute gross misconduct?
Legislation involved and requirements of legislation:
Section 8 of the Unfair Dismissals Act 1977 – 2001
Section 11 of the Minimum Notice & Terms of Employment Act 1973
Decision:
I have considered the submissions made by the parties. In dealing with the events involved in the Claimant’s case, I am satisfied that the Respondent conducted a thorough investigation and provided written records of the meetings that took place. The Respondent made it clear to the Hearing that the matter they believe constituted gross misconduct was gambling during work hours as this was recorded on CCTV. The definition of gross misconduct was cited from the company’s disciplinary procedure. Although, no doubt , the other matters contributed to the dismissal decision.
The Claimant did not express any remorse or regret about the incidents and rejected the only alternative that there was to being dismissed.
I therefore conclude that a dismissal for gross misconduct was fair and reasonable in all the circumstances. The claims fail.
Dated: 21st October 2016