Complainant

Respondent

Anonymised Parties

Security Guard

Residential Centre

Representatives

Jack Nicholas, BL.

David Pearson

Act

Complaint/Dispute Complaint: Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020750-001

24/07/2018

The Complainant contends he was unfairly dismissed after he submitted a grievance.

The Complainant was employed as a Porter / Security Operator from 6 May 2017. Around April he and some colleagues complained about their duties outside their job description, deep cleaning of bathrooms etc.   By letter dated 24 April 2018 from Manager M receipt of the complaints was acknowledged. On 13 June 2018 the Complainant received a warning from Manager M wherein the Respondent claimed that the Complainant did not perform his contractual obligations. There was no investigation and the Complainant was not given the opportunity to state his position, nor was he provided with an appeal mechanism. He then lodged a formal grievance, which was acknowledged on 20 June 2018. On 22 June 2018 the Complainant was informed of a disciplinary hearing to be held on 24 June 2018 to consider an allegation of gross misconduct. The hearing on 24 June was adjourned by Manager M as the Complainant wanted to speak with his representative. SIPTU wrote to Manager M advising that they were representing the Complainant and Manager M Replied that the Respondent does not recognise trade unions. Manager M then conducted a disciplinary hearing on 2 July 2018 although the Complainant had requested an adjournment in order to be represented which request was refused. At the hearing Manager M confirmed gross misconduct was the result of the investigation and the Complainant was dismissed. Solicitors for the Complainant and SIPTU both separately requested an appeal and the Respondent replies complaining that multiple parties are claiming to represent the Complainant. Some correspondence ensued in July from SIPTU, and the Respondent again confirmed that it did not recognise trade unions. On 19 July 2018 the Complainant received his P45.   It is submitted that there is reference to the Disciplinary to representation and this does not exclude trade unions or solicitors. Under the Respondent’s procedures, there is clear delineation between the investigator and the actions to be taken on foot of the investigator’s report. It is submitted that the Respondent unfairly dismissed the Complainant on foot of breach of the procedures and by the fact that no appeal was provided.

The dismissal of the Complainant was due to gross misconduct and there were substantial grounds justifying the dismissal. The Respondent operates a refugee centre.   The Respondent Company is required to maintain a proper and full active night porter supervision role for the residents in the centre. The Complainant was issued with a verbal warning on 13th June 2018. This warning related to an incident on 24 April 2018 where the Complainant was recorded entering the employee staff room at 0.56am and exiting at 05.50am.   During this period the Complainant was not performing his scheduled duties as required and was not at his post and accessible to residents. On 22nd June the Complainant was invited to a disciplinary hearing into allegations that on the nights of 20th and 21st June he was witnessed sleeping from 03.50am to 06.05am and 03.00am to 06.15am respectively, times when he was on duty. The Complainant chose not to be represented and he was suspended with pay pending the outcome of further investigations. The Complainant sought a number of adjournments to disciplinary meetings called, and on 2nd July the Respondent granted no further adjournments and proceeded with the hearing on that date.   The Complainant refused to participate and declined to answer any questions or view the CCTV footage. By reason of his failure to provide any response and by reason of his failure to participate in any way in the disciplinary meeting, the Respondent was left with no alternative but to dismiss the Complainant.      

I note the serious nature of the charges against the Complainant, and he did not help his case by   declining to provide any defence.   However, the fact that the same Manager conducted the investigation and disciplinary hearings and administered the penalty is a flaw in the process. It has long been established that there should be a separation of these steps in any disciplinary process to ensure natural justice. I also note the denial of the Respondent for the complainant to be represented by a representative of his choice.  In these circumstances I find the dismissal to be unfair. I find the Complainant contributed somewhat to the situation in which he found himself and I must take that into account when considering redress. I find compensation to be the appropriate remedy as re-instatement and re-engagement are not appropriate in the circumstances.   I declare the Complainant’s complaint to be well founded and I require the Respondent to pay to him the sum of €3,000 compensation.