Complainant

Respondent

Anonymised Parties

Security Officer

Security Company

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-00011284-001

12/05/2017

In the circumstances of this matter, it is noted at the   outset of this hearing that there was no appearance by or on behalf of the   Respondent, a Registered Limited Company. The Respondent had not made any   application for an adjournment or otherwise engaged with the WRC.

The Complainant confirmed he entered into employment as a Security   Officer on the 24^th October 2009 and he was furnished   with his P45 on the 31^st March 2017. The Complainants working hours were approximately 36 per   week, paid €10.75/hour which equated to a gross weekly pay of €387.00.

In the course of his employment, the Complainant had moved   between numerous sites and then ultimately to the Respondent Company on the 1^st   April 2016 under a Transfer of Undertakings. Following an unspecified   incident with a colleague and a separate incident with a client employee who   refused to follow security protocol on or about October 2016 the Complainant   was issued with a Letter of Concern dated the 12^th December 2016 .   Although the Complainants explanations   were accepted said letter issued with a further caution.

On or about the 20^th December 2016, the   Complainant was investigated in relation to an allegation of sleeping on   duty. Following the investigation, it was accepted that the Complainant had   not been sleeping on duty but was using the bathroom, due to illness, but had   failed to close the gate and consequently the clients premises were not   secure. Accordingly, following a Disciplinary Meeting on the 30^th   January 2017 and the Complainant was issued with a First Written Warning on   the 7^th February 2017.

The Complainant attended a site removal meeting on the 7^th   March 2017 and in the course of this meeting was offered alternative work   with the Respondent Company outside the jurisdiction which was unacceptable.   A second meeting was held on the 24^th March 2017 wherein the   Complainant was informed that his employment was terminated with notice.

The Complainant referred his complaint to the Workplace   Relations Commission on the 12^th May 2017 and the Respondent   Company were informed of same on the 8^th June 2017.

The Complainant confirmed he had taken up alternative employment   on the 11^th April 2017 as a Security Officer and he was working   approximately 42 hours a week at a rate of €11.50 per hour.  

It was submitted on behalf of the Complainant that he was   dismissed because of third party pressure from the Respondent Company’s   client. In particular, it was submitted that despite the acceptance that the   Complainant was not sleeping at work, the client requested his removal from   the particular site.  

It was submitted that third party pressure to dismiss has   been and continues to be grounds where a dismissal may be justified, however the Complainant sought to rely on the case   of Merrigan -v- Home Counties Cleaning Ireland Limited (UD 429/1996) wherein   the Tribunal stated that ..”the job of   an employee cannot be at risk at the mere whim of a third party to the   employmenr relationship..”.

The Complainant further relied on Sheehan -v- Keatings   Bakery (UD 738/1989) wherein the Tribunal outlined that in such situations as   third party pressure the employer has “..   a very high duty..” in relation to its obligations towards the employee   before deciding whether to terminate. Further, the Tribunal stated that the employer   should take other steps such as requesting a meeting at the highest level with   the third party to have the details of the allegations clarified.

Ultimately, it is submitted on behalf of the Complainant   that he was unfairly dismissed when his employment was terminated following   the request of a third party and the Respondent Company did not meet with the   third party to discuss this matter and accordingly terminated his employment   on the mere whim of a third party.

There was no appearance on behalf of the Respondent   Company at the hearing of this matter, the notification of the hearing date   having issued to its correct registered address on the 14^th August   2017. There is no record of the Respondent Company contacting the Workplace   Relations Commission to indicate any difficulty with attending or seeking an   adjournment. Following the hearing of   this matter, the Respondent Company has not contacted the WRC with an   explanation for its non-attendance.

Further, it is noted that the Respondent Company has not   engaged with the WRC or furnished any submissions or documentation.   Accordingly, in the aforementioned circumstances no evidence has been   proffered on behalf of the Respondent Company in defence of these complaints.

Section   6(1) of the 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.” Section 6(2)-(5) further defines the   circumstances constituting an unfair dismissal and what is deemed not to   constitute an unfair dismissal. In   relation to the burden/onus of proof, Section 6(6) provides: “In determining for the purposes of this Act whether the dismissal of   an employee was an unfair dismissal or not, it shall be for the employer to   show that the dismissal resulted wholly or mainly from one or more of the   matters specified in subsection (4) of this section or that there were other   substantial grounds justifying the dismissal.” Section 7(3) of the Act provides that “financial loss”, in relation to the   dismissal of an employee, includes any actual loss and any estimated   prospective loss of income attributable to the dismissal and the value of any   loss or diminution, attributable to the dismissal, of the rights of the   employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to   superannuation;” There was no   appearance on behalf of the Respondent at the hearing and no evidence was   proffered in discharge of the onus of proof.

Section   8(1B) of the Unfair Dismissals Act 1977 requires that I make a decision in   relation to a claim of unfair dismissal, consisting of a grant of redress in   accordance with Section 7 of the Act.   As no evidence was proffered on behalf of the Respondent at the   hearing, it has not discharged the burden/onus of proving that the   Complainant’s dismissal was not unfair and consequently, I find that this   complaint is well-founded.

Section   7 of the Act provides for the various forms of redress available upon a   finding of unfair dismissal including reinstatement, re-engagement and   financial compensation (not exceeding 104 weeks remuneration in respect of   the employment from which s/he was dismissed, calculated in accordance with   Regulations under Section 17 of the Act). It is noted that the Complainant   has sought compensation.

In   circumstances where the Complainant has since commenced employment with a new   employer, I consider an award of compensation in respect of financial loss   attributable to the dismissal under Section 7(1)(c)(i) of the Act appropriate. I am also satisfied that he has mitigated   his losses by quickly securing alternative employment.

I   order the Respondent to pay the Complainant   €1,500.00 being the approximate equivalent to four weeks wages as being just and reasonable   having regard to all the circumstances.

Unfair Dismissal third party