Complainant

Respondent

Anonymised Parties

Security Guard

Property Management Co.

Representatives

Hugh Hegarty SIPTU

Regan O’Driscoll, C C Solicitors

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-00014017-001

19/09/2017

The employer is a management company and provides a 24-hour security presence for its estates. The claimant commenced employment on or about 11/11/12. On 21/11/16 the claimant got a 12 month written warning. On 1/12/16 the claimant got another written warning. On 29/8/17 the claimant was dismissed for 3 incidents. The complainant contends that he was unfairly dismissed. This is based upon the assertion that the sanction is disproportionate to the offence, that there is a demonstrable bias on the part of the disciplinary officer and that the claimant was denied his right to natural justice and fair procedures (i.e. the investigation was conducted by a party who also acted as witness, by the delay in conveying the outcome to the disciplinary hearing and by the failure to afford the claimant a right of appeal).

The complainant contends that he was unfairly dismissed. This is based upon the assertion that the sanction is disproportionate to the offence, that there is a demonstrable bias on the part of the disciplinary officer and that the claimant was denied his right to natural justice and fair procedures, whereby the investigation was conducted by a party who also acted as witness, by the delay in conveying the outcome to the disciplinary hearing and by the failure to afford the claimant a right of appeal.

The claimant commenced employment on or about 11/11/12. He was employed pursuant to a written contract of employment and the respondent provided him with a copy of their disciplinary procedure. The employer is a management company and provides a 24-hour security presence for its estates. It has 8 employees in total. The employer is responsible for 700 apartments, 24 shops and a car park. There are about 10 screens in the security room linked to 100 cameras. An important part of the job is monitoring these screens. On 21/11/16 the claimant got a 12 month written warning. On 1/12/16 the claimant got another warning in writing.

On 29/8/17 the claimant was dismissed for 3 incidents. It was found that on 1/5/17 the claimant cumulatively spent 4.5 hours away from the security office, leaving it unattended in breach of his duties. It was found that on 17/5/17 the claimant attended for work when he had previously been informed that he was not rostered for work and when asked to leave the site he refused to leave. It was found that on the same day the claimant upon being unable to gain entry to the security office used extreme force to open the door and damaged the lock.

The claimant was suspended by letter (19/5/17). An investigation hearing took place on 2/6/17 in the presence of the claimant and his union representative. In relation to the latter incident, CCTV footage showed the claimant forcibly opening the door of the security office. This was witnessed by contractors working in the security office at the time.

Parties are in agreement re. the validity of the 2 previous warnings. With regard to the delay in the outcome to the disciplinary hearing, the respondent argued that a 2   month delay is not unusual in such circumstances – and that the claimant was suspended with pay. With regard to the conduct of the investigation, it appears that this was undertaken by an (untrained) investigator and that it fell short of the required standard (e.g. claimant did not get statements or the opportunity to put questions to key personnel). With regard to the appeal, the respondent alleges that no appeal was sought by the claimant. In contrast with previous correspondence (to the respondent), the claimant did not produce evidence of postage of the letter seeking such an appeal (i.e. it was not registered). The investigation into the breaches of discipline was conducted by the key witness to the proceedings. The claimant took up alternate employment on October 6th, 2017.

Allowing for contributory negligence on the claimant’s part the adjudicator upholds the claim and awards €1,000 compensation to be paid within 42 days.

Dismissal; Investigation.