Complainant

Respondent

Anonymised Parties

A General Operative

A Contract Cleaning Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Criminal Justice Act 2011

CA-00014782-001

04/10/2017

The Complainant says he was dismissed in the aftermath of his having made an allegation against a security guard, operating as a Contractor on the same premises as he was, that the said security guard was selling cannabis. The Complainant however concedes that his language was not as definitive as this.

The Respondent says it let the Complainant go during the probationary period in circumstances where he was not satisfactorily performing the work he was engaged to do.

The Complainant had started his employment with the Respondent in November of 2016. The Complainant was a General Operative and was assigned the task of maintaining a multi storey car park in an urban centre in Co. Meath. The Complainant was expected to make sure that the lifts, stairwells, entrances etc. were all kept bright, clean and welcoming. There is agreement between the parties that the Complainant was not in charge of Security and that the client (car-park owner) had separately engaged a Security Company to ensure the safety of the car park users.

There is also agreement between the parties that there was a tendency amongst some local youths to use the car park as a point of gathering. This did not necessarily present as a security issue and I was not advised that there had been trouble associated with these youths. However, the Complainant stated that there was an issue with empty cartons and bags and bottles as well as with the cigarettes butts left behind by these young lads. The task fell to the Complainant to pick up after these individuals.

The Complainant was on a probationary period from November 2016. In February and March of 2017, a number of complaints came in from the client regarding the standard of the cleaning being provided by the Respondent Company per the Contract (as being performed by the Complainant). The Complainant said he was doing the best that could be expected of him in the circumstances. His Employer disagreed citing the fact that the previous position holder had never had complaints made about his work and had been able to get everything done in the three hours assigned to him to complete the task.

On the 9th of March 2017, the Complainant met with his line manager and the client in the environs of the Multi storey car park. It is not clear whether this meeting was by chance or by design. In any event, it is accepted by both parties that the Complainant asserted his belief that his job was being made all the more difficult by reason of the fact that the Security Guard was not effectively ensuring that the kids that had been loitering and using the premises as some sort of meeting place, were not being moved on. This gave rise to increased work as far as the Complainant was concerned. He complained that the job fell to him to pick up and clean up after these persons.

The Complainant indicated that there was a pervasive smell of cannabis in the car park and he made the connection between the youths and the presence of this smell. Most importantly the Complainant suggested that the Security Guard was not performing his function when he failed to remove these youths and at this point the Complainant appears to have said something along the lines of…

“He might as well be selling weed to those kids”

I do not find that that the comment was meant as anything other than to suggest that if the Security Guard was not going to move the smokers on he might as well be serving the cannabis to them.

The Complainant did not make an allegation that the Security Guard was selling drugs. The Complainant offered no reason for thinking that he reasonably believed that the Complainant was selling drugs. The Security Guard and the Complainant did not know one another particularly well. The Complainant simply believed that the Security Guard was not doing his job particularly well and it was he, the Complainant, who bore the brunt of this fact.

The Complainant’s line manager stated that he believed the Complainant’s demeanour was angry and blunt and generally unacceptable in front of the client.

Within a few days of this meeting the Complainant was stopped in a supermarket by the same Security Officer who was very angry with the complainant for having alleged that he was selling drugs to the kids. The Complainant was very upset about this turn of events as both men lived locally.

It was explained to the Complainant that the client had taken the matter to the Security Guard in the aftermath of the meeting on the 9th of March and that the Respondent could not be responsible for the interaction between them as neither was within the scope of the Respondent ‘s direction.

The Complainant was disappointed that the Security Guard had not been disciplined as a result of the fact that the security guard had accosted the Complainant in the supermarket. The Employment continued, albeit the standard of work did not improve and co-employees complained.

On the 13th of April 2017, the Complainant was notified that his Employment was being terminated in consequence of his not having performed satisfactorily during the course of his probation period. The Complainant was very surprised at this turn of events. He had not been forewarned nor was he given any opportunity to improve his performance.

The reality is that the complainant having less than 52 weeks employment, was in the invidious position of having no legislative protection when he was dismissed in the manner that he was. To this end, I note that the Complainant was treated most shabbily be this Employer. The Complainant was handed his letter of termination in the stairwell of the complex where he worked. The Complainant was further humiliated in the way in which he was asked to return his uniform. The Complainant was not shown the statements which had been purportedly prepared contemporaneous to his dismissal.

I cannot however afford the Complainant the protection offered by the Protected Disclosures legislation as I do not accept that the Complainant made or intended to raise a concern about a relevant wrongdoing which had been brought to the Complainant’s attention in connection with his employment. The Complainant did not raise an issue concerning the commission of an offence (ie the selling of drugs). The Complainant made a sarcastic remark concerning the security guard’s inability to guarantee security in the workplace. This remark got inaccurately conveyed to the Security Guard who believed he was being accused in the wrong.

This Employee’s employment was terminated during the period of his probation. The decision was based on ongoing complaints concerning his standard of work. The Complainant rejected the suggestion that his work was in any way not up to standard. Whilst I might see flaws relating to the manner in which the Complainant was dismissed, the Respondent is entitled to make a decision based on the Complainant not being able to do the job properly and/or for not improving his performance. Indeed, I would accept that the Respondent may have based it’s decision on the Complainant’s seeming unwillingness to accept that his work was not up to standard, choosing instead to blame others (ie the security guard).

The decision to dismiss the Complainant was not by way of penalising him for having reported a wrongdoing as is envisaged under the Protected Disclosure Act of 2014.

The Complainant’s case under the Whistleblower’s legislation fails.