ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006071

Parties:

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 13/02/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Location of Hearing: Room G.05 Lansdowne House

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1946 - 2015 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).

Background:

The Complainant commenced employment as a security guard with the Respondent on 19th October 2014. He was paid a monthly salary of €1,800 for a 36 hour week. His employment was terminated on 29th October 2016. The agreed method of redress is compensation.

CA-00008307-001 Complaint under the Unfair Dismissals Act, 1977.

Summary of Respondent’s Case:

The Respondent submitted that he had had numerous issues with the Complainant's work over the period of the Complainant's employment, particularly in relation to problems with patrolling. The Respondent presented a number of records to support this contention.

Things came to a head following an investigation into the Complainant's patrols on the night of 26^th -27^th September and 8^th - 9^th of October 2016.   At a meeting held on 13^th October the Respondent submits that the Complainant admitted that he had lied regarding a suspicious car, he had accepted that he falls asleep on a regular basis thus missing patrols, that he was not completing reports contemporaneously and that he had submitted reports which were false and misleading.

The Respondent wrote to the Complainant on the same day, summarising the meeting and suspending the Complainant from 13^th to 24^th October.   In direct evidence the Respondent said that he had not got satisfactory answers from the Complainant at the meeting held on 13^th October and that he stood by all he had written in his letter to the Complainant on the same date.

The Complainant replied in writing to the Respondent in a letter dated 25^th October. In this letter the Complainant denied he had admitted to lying about the suspicious car or falling asleep thus missing patrols. Following receipt of this letter the Respondent decided that a meeting with the Complainant was warranted and he called him on 29^th October to set up such a meeting.

However, before any such meeting could be arranged the Respondent received another letter from the Complainant, dated 2^nd November (in which the Complainant again denied that he had accepted that he regularly fell asleep when working and the other allegations which had been made against him in the letter of 13^th of October).   In direct evidence the Respondent stated that when he received the letter of 2^nd November he decided the Complainant was not grasping what was going on and he had lost trust in the Complainant, so he wrote to him, terminating his employment.

Regarding the meeting that took place on 13^th October the Respondent agreed that the Complainant did not have a representative present, that he had not asked the Complainant if he wanted a colleague to represent him, nor did he give any warning as to what the end result of the dialogue might be.   In evidence he said that he had decided to suspend the Complainant ( immediately following the meeting of 13^th October) because he felt the Complainant had been lying to him.

Summary of Complainant’s Case:

The Complainant stated that he had a good employment record, he had no written warnings and he thought all was well, although he acknowledged he had missed a couple of patrols.

Regarding the incident with the suspicious car the Complainant said he had seen a suspicious vehicle and had decided to keep an eye on it. Because of this he had missed a few patrols.

The Complainant was asked to attend a meeting with the Respondent on 13^th October regarding the incident. In direct evidence the Complainant stated that he was called a liar right from the start of the meeting. He did not accept a lot of what was put to him at the meeting. He did accept that he should have contacted the Gardaí about the suspicious car.

Following this meeting the Complainant received a letter from the Respondent saying he had admitted to falling asleep and missing patrols and that he had lied about the suspicious car. He wrote back to the Respondent on 25^th October stating that he did not accept the contents of the letter of 13^th October.   He then got a call from the Respondent on 29^th October during which the Respondent said he did not like the content of the letter and not to come back to work that night or the next day but to ring the Respondent on the following Monday. The Complainant rang the office on the Monday and was told by a colleague that there was no roster for him. The Complainant rang the Respondent and was told to come to a meeting on 3^rd November.

Around this time the Complainant got legal advice on his situation and he wrote a letter to the Respondent on 2^nd November again denying that he had admitted to the wrongdoings as laid out in the Respondent's letter (13^th October). The Complainant also wrote that having sought legal advice he was looking for a return of unlawfully deducted wages and that he had referred the issue to the WRC.

The Complainant tried to rearrange the meeting scheduled for 3^rd November but to no avail. On the 7^th November the Complainant spoke with the Respondent on the phone and he was told that there was a letter in the post to him.

The Complainant received a letter from the Respondent on 8^th November, dated 3^rd November, which among other things stated that his employment had been terminated as the Respondent had lost all confidence in his ability to carry out his duties.

The Complainant gave evidence on his attempts to find work since the termination of his employment with the Respondent. He has been employed since the termination. He is signed up with several agencies and has sent his CV to several potential employers. He is getting assistance from Intreo and intends undertaking a Forklift and Manual Handling course in the near future, to increase his chances of getting employed.

Findings and Conclusions:

In deciding on the fairness or otherwise of this dismissal a number of questions need to be answered.

Without doubt there were problems relating to the Complainant's performance. The Complainant admitted that he had made some errors in relation to filling in forms and not contacting the Gardaí in relation to the suspicious car. However, these problems were not of such magnitude as to warrant dismissal. Indeed the Respondent was not going to dismiss the Complainant until he received a letter from him denying the issues in question.

The Complainant had a clean disciplinary record. The problems highlighted by the Respondent may well have been sorted out if a performance management programme had been put in place. In this instance the Respondent decided to dispense with any attempt at solving the problems by agreeing a course of action with the Complainant once he received the latter of 2^nd November. The Respondent's method of solving the problem was to dismiss his employee.    In the circumstances outlined I do not believe the Respondent acted reasonably.

An employer is bound to show not only had he substantial grounds justifying dismissal but also that he followed fair and proper procedures before dismissal. In relation to procedures a number of questions need to be answered.

(i) Did the Respondent adhere to its Disciplinary Policy and was that Policy fair?

From the evidence adduced it is my belief that the Respondent did not follow the company Disciplinary Policy.

(ii) Was the Complainant given adequate details of the allegations so as to be in a position to adequately address them?

The Respondent had written to the Complainant in advance of the meeting of 13^th October listing the questions that he wished answered. However, the Respondent did not warn the Complainant in advance of the possible severity of the sanction that might be taken against him.

(iii) Was the Complainant afforded an opportunity to defend himself and have his arguments and submissions listened to and evaluated by the Respondent in relation to the threat to his employment?

The Complainant was not made aware of his right to representation prior to the meeting of 13th October. He did not have representation at this meeting which ultimately led to his dismissal. Nor was he made aware in advance that the outcome of the meeting could result in disciplinary sanction being taken up to and including dismissal.  

(iv) Was the Complainant informed of his right to appeal the decision to dismiss?

Decision:

Section 6(1) of the Unfair Dismissals Act provides:

 “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.

I do not believe there were substantial grounds to justify a dismissal and the decision to dismiss was disproportionate. The Complainant was not afforded due process.

For these reasons I believe that the Complainant was unfairly dismissed and therefore his claim under the Unfair Dismissals Act, 1977, is upheld.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

I order the Respondent to pay the Complainant compensation of €9,000 which is five months wages.

This is to be paid within six weeks of the date below.

CA-00008307- 002 Complaint under the Industrial Relations Act, 1969.

The complaint under this Act refers to the matters outlined above. The processing of a claim both under unfair dismissals legislation and by an Adjudication Officer under industrial relations legislation is prohibited.

Dated:   15th May 2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

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