ADJ-00004909

Complainant

Respondent

Parties

Security Manager

Retail Department Store

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-00006997-001

13/09/2016

The Complainant was employed as a Security Manager with the Respondent from 4^th September 2000. He was paid €3210.00 gross per month and was a full-time employee of the Company. 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 of unfair dismissal to the Workplace Relations Commission on 13^th September 2016. The dismissal was not disputed.

Summary of Respondent’s Position

The Complainant has been employed form 4^th September 2000 as a Security Manager. The Respondent spoke to the Complainant on numerous occasions from 2010 in relation to his poor timekeeping, failure to clock in, inappropriate conduct and failure to follow the arrest procedures of the Company. The Complainant was issued with a verbal warming on 30^th July 2010, no specified period was indicated. He was issued with a written warning on 19^th May 2012 again for an indefinite period. He was suspended ,unpaid, for 5 days in March 2015. A final written warning was issued on 15^th February 2016 again for an indefinite period. The Complainant was afforded a right of appeal on this Final Written Warning but did not do so. However the Complainant was again late for work on 19^th February 2016 and on arrival he failed to clock in. This became the subject of an investigation on 26^th February 2016. Also at that meeting further poor performance issues were identified to the Complainant, including repeated failure to wear his name badge, failure to adhere to the correct arrest procedures again and the repeated rolling of cigarettes at both the security podium and in the security office. He was informed he was suspended on full pay pending a further meeting on 27^th February 2016. However on 26^th February 2016 the Complainant was certified unfit for work and the meeting was deferred to 4^th March 2016. The Complainant gave a medical certificate to the Respondent on the day claiming he was unfit for work. The Complainant did raise a number of issues in relation to the conduct of his named Manager. A further meeting was scheduled for 14^th March 2016 at which medical evidence was produced to state the Complainant was fit to return to work on light duties. The Complainant furnished a medical certificate on 21^st March 2016 stating he was fit to return to work. A back to work meeting was held on this day and also the disciplinary process recommenced. He was advised that his employment was to be terminated with immediate effect. He was afforded a right of appeal which he did on 24^th March 2016. The outcome was to uphold the decision to dismiss.

The Respondent asserted that the Complainant had been granted fair procedures during the course of the process in accordance with S.I. 146/2000. The Respondent also referenced a number of both Irish and English Court Decisions in support of their arguments.

Summary of Complainant’s Position

The Complainant stated that he worked in a specified branch of the Respondent until December 2014 when he was transferred to his current location from where he was dismissed. He had two security guards working to him as the Security Manager. He stated that from his transfer there were difficulties with his named Manager. He stated that in June 2015 he was told by this Manager that he should consider looking for another job as things not working out and that maybe he should return to another named location. He stated that he was informed that his cards were marked. In December 2015 he was informed that his haircut was inappropriate.

He stated that he was called to attend a meeting on 11^th February 2016 at which historical issues were raised. Minutes of these historical meetings were not supplied to him although he requested them. He stated that he requested his Personal File under Freedom of Information request on 11^th April 2016 but this was not provided to him. He stated that he was issued with a final written warning on 15^th February 2016. On 16^th February 2016 he was removed from the CCTV Podium. He stated that he objected to his removal but there was no response and he stated that this indicated a bias against him.

He stated that on 19^th February 2016 at 5.45 am as he was leaving home for work the battery of his car was flat but he arrived at 5.55am and he immediately informed the named Respondent he was late. The Complainant was requested to attend a meeting with two named employees. He was not informed in advance of the nature of the meeting and he did not receive a letter. He stated that historical matters dating from 2010 were raised with him including 1 false arrest in 2014 and another in March 2015 which he was requested to justify. He had been suspended for 5 days without pay for both incidents at the time. He stated that a written warning issued to him in 2012 was also referenced and he alleged that this was in breach of fair procedures and S.I. 146/2000. The decision was to dismiss him with a right of appeal which he did. However this was a paper appeal. He was informed of the outcome on 8^th April 2016 and his dismissal was upheld.

The Complainant stated that he had been in receipt of Jobseekers Benefit to 4^th January 2017 and this was confirmed by the Department of Social Protection. The Complainant stated that he then commenced employment earning €10.75 an hour and he works 39 hours a week and payslips were provided post the hearing as requested confirming this.

On the basis of the evidenced from both Parties I find as follows –

The Complainant was employed as a Security Manager with the Respondent Company in a specified location. The evidence was that between 26^th May 2010 and 28^th November 2014 there were 8 meetings with the Complainant concerning his timekeeping and a further meeting with the Complainant in March 2015 in relation to a false arrest. The Complainant was issued with a verbal warning on 30^th July 2010 for an indefinite period and a second verbal warning was issued on 7^th February 2012 again for an indefinite period. The Complainant was issued with a written warning on 19^th May 2012 for an indefinite period. The Complainant received a sanction of a five day unpaid suspension in March 2015 for a false arrest.

The Complainant was issued with a final written warning on 15^th February 2016 following a performance review meeting held on 11^th February 2016. I note that although the notes of this meeting state it was to “review your overall performance file from December 2014, the Complainant was not informed in advance of the nature of this meeting which resulted in the Complainant being issued with a final written warning at this meeting. This is in clear breach of all fair procedures and natural justice as set out in S.I. 146/2000.

The Complainant attended a further meeting with the Respondent on 26^th February 2016 according to the notes of this meeting and it is clear from these notes that the Complainant was not aware of the nature of the meeting. Again this is in breach of all fair procedures although I do note again from the notes of this meeting that the Complainant was asked if he would like “someone present with him”. The Complainant was suspended on full pay at this meeting . I note the Complainant was on certified sick leave following this and he attended a further meeting with the Respondent on 4^th March 2016. This meeting was adjourned on foot of his medical certificate. A further meeting was scheduled for 14^th March 2016 and again on 21^st March 2016 at which his employment was terminated with a right of appeal. The dismissal letter of 22^nd March 2016 states he was dismissed for “serious breaches of company policies and procedures”. The Complainant did appeal by letter dated 24^th March 2016. However this was a paper appeal and the Complainant was not afforded an oral hearing in accordance with good practice.

I note from the notes of all the meetings provided to the Hearing that historical issues were raised which had already been the subject of disciplinary sanction. I further note that the procedures of the Respondent provide for open ended sanctions whether verbal warnings or written warnings. This is in breach of Section 4(14) of S.I. 146/2000 where it states “ Warnings should be removed from an employee’s record after a specified period and the employee advised accordingly.”

I note from the notes of the meeting of 21^st March 2016, the date of his dismissal, the Complainant requested a copy of his timekeeping and absenteeism file for the years 2013, 2014, 2015 and 2016 and he handed a written request to this effect as instructed but the evidence was that he was never provided with this information as he had requested.

Section 6 (7) (b) of the Act of 1977 as amended, provides as follows: -“to the extent (if any) of the compliance or failure to comply by the employer in relation to the employee, with the procedure referred to in Section 14(1) of this Act, or with the provisions of any code of practice referred to in paragraph (d)….of Section 7(2) of this Act.”

Section 7(2) of this Act provides as follows:- Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to – (d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of Section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.”

1. . This Code of Practice was approved by the then Minister for Enterprise, Trade and Employment on 26^th May 2000.

Unfair Dismissal – S.I. 146/2000 – Section 6 (7) (b) and Section 7(2)