Complainant

Respondent

Anonymised Parties

A Security Officer

A 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-00014827-001

06/10/2017

The respondent company is an outsourced provider of security, cleaning and maintenance personnel to client organisations across a range of industries in Ireland. The complainant was employed as a security officer. His job transferred to the company in 2012 under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE) and his service was continuous from 2008.  

A letter submitted in evidence shows that the complainant was dismissed on April 7th 2017.   From January 13th, he refused to come to work because he said that the roster did not suit him.   He claims that he had an agreement with his employer to work a certain fixed roster so that he could help to mind his three-year-old son.    

On his complaint form submitted to the WRC, the complainant said that he was dismissed on May 10th 2017; however, this is the date on which the outcome of the appeal of his dismissal was confirmed. His dismissal was upheld.

At the opening of the hearing, the respondent raised a preliminary issue concerning the fact that a complaint of penalisation by this complainant has already been adjudicated upon (ADJ-00007826). This was submitted to the WRC on March 29th 2017 and my colleague, Penelope McGrath decided that the complaint was not upheld. The respondent argued that the investigation of this new complaint is an abuse of process. In the earlier hearing, the complainant alleged that his employer attempted to change his work location and his roster and, in this way, penalise him because he made a complaint under the Safety, Health and Welfare at Work Act 2005.  

The complaint under consideration here is one of unfair dismissal. The complainant was dismissed after he made a complaint of penalisation and there is no way he could have raised the fact of his dismissal in his previous action. This hearing and the decision which follows addresses the complaint of unfair dismissal. I find therefore, that the respondent’s objection to the hearing of this complaint on the grounds of abuse of process is unfounded.

Chronology of Events

From the time he transferred to the respondent under TUPE, the complainant worked as a security officer on construction sites. In October 2016, he was assigned to a site in Portmarnock. In their submission, the respondent set out the events which led to the complainant’s dismissal, commencing with his transfer to a building site in Dolphins Barn in December 2016.

December 19th 2016

On December 19th, the respondent said that they were requested to move the complainant from the Portmarnock site following an argument with three workers who were in a jeep which drove in to the site without asking him to move the entrance bollards. It is alleged that the complainant followed the men to an office where he confronted them about not stopping at the gate and said, “if you do that again, I will take you out.”

In their submission, the respondent said that it is standard practice for the property owner or the agent managing the premises to request them to move an employee from a site for any reason. They said that this is an accepted practice in their industry and, in many instances, is part of the contractual agreement with a client. The section of the staff handbook which sets out the requirement of employees to move from sites at the request of a client was submitted in evidence.

On December 20th, the complainant was transferred to a construction site in Dolphins Barn. He was given the same roster as the Portmarnock site, Tuesdays, Wednesdays and Fridays from 7.00am to 8.00pm.

At the hearing, the respondent said that Dolphins Barn was a busy site leading onto a public road and footpath and in his role as security officer, the complainant was required to control the traffic at the gate and direct it once it entered the site.   He objected to this work, claiming that he was a qualified security guard and that directing traffic was not part of his job.

January 10th 2017

The complainant refused to direct the trucks entering and leaving the site and the client asked the respondent to send a different security officer to replace him.

January 16th 2017  

At a meeting to investigate why he was removed from the site, the respondent said that the complainant raised an issue about health and safety in Dolphins Barn. He complained that he was expected to stand at the gate all day, that the security hut was some distance from the gate and that there was no heating in the hut. He said that he told the client’s manager about the problems with the hut and he said that he would sort it out, but “this didn’t happen.” At the meeting, the respondent’s manager said that there hadn’t been much time between December 20th and January 11th and the Christmas and new year holidays had been in the middle. However, the complainant said that the “main issue” was the fact that he was expected to direct traffic coming in and out and he didn’t want to take on this responsibility.

At this meeting, the issue of the three-day week / 13-hour day roster came up. The note of the meeting submitted in evidence show that the manager chairing the meeting was clear about the company’s position when he told the complainant:

“…there aren’t many sites with 13-hour shifts. I am going to see what other site I can place you on but I am telling you now, if this new site will not work for you, you will not be guaranteed a 13-hour shift.”

At the end of the meeting, the manager confirmed that the site he had in mind was in Glasnevin.

January 18th 2017

The complainant had raised a grievance about his move from Portmarnock and, at a meeting to discuss this on January 18th, he again raised his objection to the requirement to assist with the traffic on the Dolphins Barn site. He claimed that this was “against the law.”

On January 20th, the complainant phoned the HR Department to ask for confirmation that his new assignment in Glasnevin based on a three-day week / 13-hour day would be a permanent arrangement. The HR Manager said that she couldn’t confirm this, as clients had requested the transfer of the complainant from Dolphins Barn, Portmarnock and before that, from St James’ Hospital. If he had to be moved again, there was no guarantee that he could work the roster he wanted. The HR Manager said that the complainant became aggressive and she terminated the call.

January 23rd

When he was sent a new roster for a different site, the complainant sent an e mail to the HR Department in which he claimed that he had an agreement with the company about a fixed roster based on a three-day week from 7.00am until 8.00pm. A copy of this e mail was submitted in evidence and showed that the complainant said:

“I have an agreement with company about set roster therefore I am looking for these hours I have been on the last 3 years:

Tuesday   07:00 – 20:00

Wednesday   07:00 – 20:00

Friday 07:00 – 20:00

Regards…”

The HR Manager responded as follows:

“As per our meeting on 18-01-17, during which we discussed your roster. I informed you that should you have a document to prove this was a formal arrangement, please provide this document for my review. This was a verbal agreement with a manager which was site specific and cannot be upheld, this does not breach your contractual entitlements in any way. You have been provided with a roster to suit your location on two occasions, which you informed the rostering team you will not be following. As I explained to you at length you have been removed from the last two sites due to your refusal to carry out reasonable security duties. As a result, it has become more difficult to provide you with a roster as the client will not accept you back to these sites for the above reasons. The rostering team will be in contact with your roster as usual this week, please be advised failure to adhere to your roster may lead to disciplinary proceedings.”

On another call, the complainant left a message for the HR Manager and told her he would “see her in court.” The respondent said that the complainant “had an impression that he was entitled to fixed hours and days because he had enjoyed a fixed roster when he worked at St James’s Hospital.” He phoned the HR Department again on January 24th, and repeated his aggressive tone.   He was sent a roster every week from then on until March 22nd, but he didn’t attend work.

January 31st 2017

Following the investigation meeting on January 16th, a disciplinary meeting took place on January 31st to address the complainant’s refusal to assist with traffic management on the Dolphins Barn site. The respondent said that this job is a component of “gate duties” and is normally performed by security officers “the length and breadth of the country.” They said that employees working on gate duty are insured for directing traffic entering and leaving building sites. The complainant refused to do this work, as he claimed that directing traffic was not his job. The notes of the meeting submitted in evidence show that the complainant said,

“I don’t think I’m going to be working for you in the future.   I actually hate this company.   I’m going to report it to the Health and Safety Authority and my solicitor will be in contact with you.   I do not wish to continue with this meeting, I see you in court.”

The complainant walked out of the meeting before it concluded. No disciplinary action followed from this meeting and each week, until March 22nd, when he started in a new job, the respondent continued to send the complainant a roster for the week ahead.

February 1st 2017

A letter dated February 1st 2017 from the Health and Safety Authority (HSA) shows that a complaint was made in relation to the inaccessibility of the security hut on the Dolphins Barn site and an assertion that security staff did not have access to welfare facilities on the site. The HSA requested the company to respond to the complaint in seven days. The respondent dealt with the complaint and on February 23rd, a HSA executive wrote to the HR Manager to confirm that he had “closed off on the complaints based on controls stated in the correspondence received.” The complainant never submitted a complaint to the HSA about traffic management duties.

The Respondent’s Defence of the Complaint of Unfair Dismissal

In their submission, the respondent said that the complainant was afforded every opportunity to work with the company. At the request of clients, he was moved from three sites due to his conduct.   In January 2018, he was offered a roster and when the company couldn’t confirm that it was guaranteed for the future, he refused to work that roster. He then refused to work any roster he was offered and he did not come to work. His employment was terminated because, in the view of the respondent, his non-attendance amounted to “a fundamental breach of his contract” and a “wilful repudiation of his contract.”

The complainant refused to work any roster other than the one he worked when he was previously assigned to Portmarnock and Dolphins Barn, comprising three long shifts of 13 hours each. In defence of their decision not to guarantee the complainant the shifts he requested, the respondent said that if he was moved to a new site with staff who were already working there, it would not possible to disturb the routines of other employees to accommodate him. When his specific request was refused, the respondent said that the complainant failed to communicate with the company in any meaningful way, other than to demand the roster that he wanted.

During the disciplinary meeting on January 31st which was held to discuss the complainant’s refusal to direct traffic at the Dolphins Barn site, the complainant left the meeting before it was concluded. Following this meeting, on eight occasions, he was sent rosters for work on other sites, but he failed to show up for work. On March 22nd, he began working for another company, two weeks before his employment was terminated.

In support of their argument that the complainant was not unfairly dismissed, the respondent referred to the case of Jimmy Lee v CG Power Systems Ireland Limited, UD 810/2010. Mr Lee was due back from a career break on November 1st 2008 and, although he was contacted by his employer with regard to his intentions, he did not return to work and he gave no reason for not returning. The company’s HR Manager wrote to him on January 14th 2009 to state that it was their understanding that he had resigned. Mr Lee appealed his dismissal to the Employment Appeals Tribunal (EAT) who found that his dismissal was not unfair, as he “had frustrated his contract of employment.”   It is the respondent’s position that the complainant in this case has behaved in a similar manner to Mr Lee, and frustrated his contract. On this basis, they claim that his dismissal is not unfair.

Background to the Roster Issue

At the outset of the hearing, the complainant said that he had an agreement to work a set roster so that he and his wife could take care of their son without having to resort to paid child-care. He submitted a copy of a text message from a manager on July 9th 2014, in which he asked the manager to confirm what his roster would be.   While he was at a meeting, the manager received 12 calls from the complainant. He replied by text message: “Well the 3 days I sent you are standard going forward and I will give you an additional 4 hour shift each Saturday.” Documents submitted in evidence at the hearing show that, for about three years, the complainant worked three days a week on Tuesdays, Wednesdays and Fridays from 7.00am until 8.00pm.

On January 11th, the client on the Dolphins Barn site insisted that the complainant was replaced by another officer and he was sent home. It is his view that he was suspended from that date.

Chronology of Events from January 11th 2017

January 16th

On January 16th, the complainant attended an investigation meeting about the traffic management issue at Dolphins Barn. The details of this meeting are set out in the section above in the Summary of the Respondent’s Case.

The letter inviting the complainant to the investigation meeting stated, “As this is not a disciplinary meeting, you are not entitled to bring representation with you.” On behalf of the complainant, Mr Gill submitted that this is a breach of the complainant’s right to be represented.

January 18th

A meeting was held to discuss the complainant’s grievance about the fact that he was removed from the site in Portmarnock in December. The meeting invitation made no mention of his right to be accompanied by a colleague. The complainant discussed his grievance about his move from Portmarnock and the traffic management duties that he was required to undertake at Dolphins Barn.   The outcome of the grievance was that the complainant was informed that he would not be re-assigned to Portmarnock or Dolphins Barn. He was unhappy with this because he felt he was being punished for doing his job properly.

At this meeting, the complainant discussed his need to revert to his regular roster. He said that he was told, and the meeting notes support this, that, on his move to Glasnevin, he could work his regular roster.   A document submitted in evidence shows that on January 18th, the complainant was rostered for three 12-hour shifts at a new site in Glasnevin. He said that he asked the HR Manager to confirm that this would be the arrangement for the future, but she said that this could not be guaranteed.   As a result, Mr Gill said “it made no sense” for the complainant to accept this roster, as he needed to be available to mind his son.

January 23rd

The email correspondence of January 23rd between the complainant and the HR Manager has been set out in the previous section on the Respondent’s Position.     The complainant said that he had an agreement to work three 13-hour shifts on Tuesdays, Wednesdays and Fridays.   The HR Manager replied stating that this was a “site specific” verbal agreement and she concluded by saying:

“The rostering team will be in contact with your roster as usual this week, please be advised that failure to adhere to your roster may lead to disciplinary proceedings.”

On January 26th, when he was sent a roster for the week commencing on February 2nd, the complainant wrote back to the rostering manager:

“My family circumstances does not allow me to accept this roster. Company well aware of that. I have been doing my best to resolve this matter with company without success.   Sorry for the inconvenience caused by this.”

January 31st

On January 26th, the complainant was invited to a disciplinary meeting which was scheduled for January 31st. This was a follow-up from the investigation meeting on January 16th.   This time the invitation letter confirmed that the complainant had “…a right to be represented at the hearing by a union official or represented by a colleague, however, no other party unconnected to the company will be entitled to attend.”

For the complainant, Mr Gill argued that the disciplinary process was flawed as the complainant was not given the right to be represented as he was not entitled to bring a solicitor or a member of the Citizens Information Service with him to the meeting. The complainant attended without representation.

At the meeting, the HR Manager asked the complainant to explain why he refused to carry out traffic management duties at Dolphins Barn. In his submission at the hearing, he said that he felt that the HR Manager who chaired the meeting wasn’t listening to his concerns about health and safety and he brought the meeting to an end. He felt he was being disciplined for not carrying out work that was “outside of his contract and outside the law.”

After the meeting, the complainant sent an e mail to the HR Department. A copy was submitted at the hearing:

“To Whom it May Concern

“I am writing this e mail to you in relation to disciplinary meeting I had to attend 31.01.2017 11:00 with HR manager (named) where Dolphins Barn site situation was discussed.

“The end of the meeting I asked HR Manager to provide me a note of the meeting to read it and sign it. They were not willing to give it to me to check it and sign it. They said it will be sent to me.

“This is against the terms and conditions of my contract. They supposed to give me a copy of the note right at the end of the meeting to verification purposes.

“Also, they went away from disciplinary subject I was not willing to discussed at the meeting was addressed to me: refusal to carry out duties at Dolphins Barn site.

“Therefore I called end of the meeting (sic).

“Regards (name of complainant).”

February 3rd

When he received a roster for the coming week, the complainant sent an e mail to the HR Department:

“I have received a roster yesterday which is for night shifts.   Due to my family circumstances I did not do any night shifts over the past three years. I need to schedule a meeting with HR Manager to come to some resolution on the roster. If I receive no response I will lodge a complaint to Workplace Relations Commission.”

No meeting took place and for five more weeks, the complainant was sent a roster which he claims did not suit him and he did not go to work.

March 29th

The complainant submitted two complaints to the WRC; one was related to penalisation for making a complaint about health and safety and the second was a complaint under the Payment of Wages Act. Neither of the complaints was upheld.

April 7th

According to Mr Gill, there was no follow-up from the meeting of January 31st until April 7th when the complainant was dismissed. The dismissal letter states:

“It is with regret that I write this letter to inform you of your dismissal from employment at (name of the respondent) effective from April 7th 2017.

“Your absence from work since 11th January 2017 and your refusal of your roster from 23-01-17 until 15-03-17 for 8 weeks is unacceptable to the company and we have failed to receive any meaningful communications from you regarding your absence or refusal to work your roster as issued.

“We take this as frustration of your contract of employment.”

In the letter, the complainant was informed of his right to appeal the decision to dismiss him and, following an appeal hearing on April 21st 2017, the decision to terminate his employment was upheld.

Health and Safety and Traffic Management Duties

On behalf of the complainant, Mr Gill submitted that he never received training in traffic management and he was held responsible for the entire traffic management operation of a busy construction site. When he insisted that this was not his responsibility, he was penalised. He was removed from duty and subjected to a disciplinary process. Mr Gill claims that he was then issued with an unworkable roster and he was dismissed.   Mr Gill argued that the respondent breached standard health and safety regulations and “prioritised their relationship with their client over the safety of their employee.”

The complainant was dismissed for non-attendance at work, but the non-attendance arose from the change in his roster which, the complainant argues, is penalisation for raising a complaint about health and safety. Mr Gill submitted that the dismissal of the complainant is in breach of section 27 (2), (3) and (4) of the Safety, Health and Welfare at Work Act, which prohibits penalisation or dismissal for complying with health and safety regulations or for making a complaint in relation to a breach of health and safety regulations.

The Complainant’s Argument that his Dismissal is Unfair

In the weeks after the complainant was sent home from work on January 11th 2017, on eight occasions he was offered a roster which was unacceptable to him. He wrote back to the rostering manager and said that the rosters were unacceptable. On January 13th, 15th, 19th 20th and 23rd, he wrote to the HR Department to bring the issue to their attention and to ask for a meeting to seek a resolution so that he could return to work on a roster arrangement that would facilitate his need to take care of his three-year old son. On January 23rd he received a reply from the HR Manager in which, referring to the three-day week arrangement she said,

“This was a verbal agreement with a manager which was site-specific and cannot be upheld. This does not breach your contractual entitlements in any way.”

She concluded her mail saying,

“The rostering team will be in contact with your roster as usual this week, please be advised failure to adhere to your roster may lead to disciplinary proceedings.”

It is the complainant’s position that this new term of employment, that is, the changed roster, made the contract unworkable.

In support of his argument that the respondent breached the complainant’s contract of employment, Mr Gill referred to the case of Carey v Irish Independent Newspapers, [2003], IEHC 67. Ms Carey had been permitted to work from home in the mornings for many years to facilitate her childcare arrangements. When the newspaper’s editor changed, this arrangement came to an end and Ms Carey was required to work from the company’s offices.   She successfully sued her employer for breach of contract. Mr Gill submitted that the three-day week arrangement from 7.00am to 8.00pm was a contractual arrangement between the complainant and his former employer for three years and that the respondent has breached his contract by refusing to continue to facilitate him.

Fair Procedures

There was no outcome from the disciplinary meeting that took place on January 31st 2017.   Mr Gill submitted that it was unreasonable and unfair to only have one meeting with the complainant prior to his dismissal. He received no verbal or written warnings and little communication between the disciplinary meeting and the letter of dismissal. At no stage, was the complainant informed that his refusal to accept a roster would result in his dismissal. Mr Gill referred to the EAT case of Colm White v Balfour Beatty, UD 888/2013. Mr Beatty was requested to work on Christmas day and informed that if he did not attend work, he would be dismissed. In the end, he did not go to work and he was dismissed.   The Tribunal found that his dismissal was not unfair. Mr Gill argued that in the case under consideration, the complainant was never informed that he would be dismissed if he did not work the roster he was offered and, for this reason, the decision to dismiss him is disproportionate.

At the disciplinary meeting on January 31st, the complainant was asked to respond to an allegation that he failed to carry out certain duties related to traffic management. However, his employment was terminated due to frustration of his contract. There was no separate disciplinary process to address the issue of the complainant not accepting the roster offered by the respondent. He was never informed that his job was at risk if he did not work the rosters he was offered. Mr Gill argued that the failure to perform a contract for four months does not meet the test to satisfy the doctrine of frustration of contract.

In summary, Mr Gill stated that the dismissal of the complainant was unfair for the following reasons:

1. The complainant was penalised for protecting his health and safety;

2. The dismissal on April 7th 2017, was a punitive response to the complainant referring a complaint to the WRC on March 29th 2017;

3. The respondent breached a term of the complainant’s employment by changing his roster after three years;

4. The disciplinary procedure made no reference to frustration of contract;

5. There was no appropriate appeals procedures and there was no right of representation at the appeals meeting.

The Relevant Law

Section 6(1) of the Unfair Dismissals Act 1977 provides that:

“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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case. The respondent said that the complainant was dismissed because of,

“Your absence for (sic) work since 11th January 2017 and your refusal of your roster from 23-01-17 until 15-03-17 for 8 weeks is unacceptable to the company … We take this as a frustration of your contract.”

The questions to be decided are: Was it reasonable for the respondent to dismiss the complainant and was the process that ended with his dismissal a fair process?

Was the Decision to Dismiss Reasonable?

The complainant is an ideal person for a job as a security officer; he has military experience, an air of authority and an imposing stature. Unfortunately, he was aggressive when he didn’t get his own way.   In December 2016, a client requested his removal from a site when he threatened staff who didn’t stop at a security barrier. In January 2017, he refused to direct traffic entering and exiting a site. He was offered an alternative site on a roster that suited him and he demanded confirmation that this would be a permanent arrangement. When the HR Manager told him that she couldn’t give him this guarantee, he refused to come to work and told her, “I will see you in court.” On January 31st, he walked out of a disciplinary meeting because he claimed the HR Manager wasn’t listening to him. Having considered all the evidence presented at the hearing, regrettably, I have to conclude that the complainant was dismissed because of his conduct.

While the letter of dismissal refers to “frustration of your contract,” I do not accept that this was the reason the complainant was dismissed. I can understand why the respondent took this course of action – from their perspective, they had reached the end of the line with this employee. From December 2016 until their final encounter with him at the meeting on January 31st 2017, the complainant’s conduct was aggressive, demanding and disrespectful. At that meeting, he said, I don’t think I’m going to be working for you in the future. I actually hate this company.” Not unreasonably, the managers who heard this must have been relieved. On a weekly basis from then on, they sent him a roster that they knew was unacceptable to him, until he found another job.

On January 23rd, the complainant was informed that “failure to adhere to your roster may lead to disciplinary proceedings.”   He didn’t adhere to his roster, but no disciplinary proceedings were initiated. On February 3rd, he requested a meeting “to come to some resolution on the roster” but no meeting took place. In my view, the complainant should have accepted the roster he was offered on January 18th, comprising three 13-hour shifts. His refusal to accept this roster because the company couldn’t give him a guarantee that it would be a permanent arrangement was gross misconduct. It would not have been unreasonable to dismiss him at that point.

I accept Mr Gill’s argument that the complainant should have been told that he would be dismissed if he did not work the roster he was offered. I also understand the respondent’s decision not to engage any further with the him but, it falls to the employer to be professional, and unfortunately, it is my view that, in this case, the employer became detached and hoped that the complainant would carry out his promise and leave.

I have reached the conclusion that this dismissal was unfair because:

The complainant was dismissed for failing to come to work, in circumstances where he was offered a roster which the respondent knew was unacceptable to him and,

He was informed that if he failed to work the roster he was offered, disciplinary proceedings would be initiated, but the employer did not initiate disciplinary action and,

The respondent did not inform the complainant that, if he failed to work his roster, he would be dismissed.

The Complainant’s Arguments About the Process

I wish to address the complainant’s arguments about the disciplinary process. He was invited to a disciplinary meeting to discuss his refusal to carry out traffic management duties. I accept the respondent’s position regarding the duties of a security officer at the gate of a construction site and the management of trucks entering and leaving the site. I understand that the company is a licensed operator in accordance with the licensing requirements of the Private Security Authority. On their sites all over the country, they said that security officers are directing traffic entering and leaving construction sites. The complainants’ refusal to carry out this task was entirely unreasonable and I note that he did not complain to the Health and Safety Authority about this work.   I find therefore that no penalisation occurred and the dismissal of the complainant was not related to his concerns about health and safety.

Mr Gill also argued that the complainant was not allowed to be represented at the investigation meeting on January 16th. While I accept that this is a feature of the company’s disciplinary process, it would be preferable if employees were accompanied at all meetings. If he had been accompanied, the complainant could have been steered in a different direction by a calmer colleague. I note however, that when he was permitted to bring a colleague or a union representative to the disciplinary meeting, he did not do so. I do not find that any unfairness resulted from the company’s policy to allow him to be represented by a colleague or a union official, and not by a solicitor or an advisor from the Citizens Information Centre.

Breach of Contract

For around three years before his dismissal, the complainant worked a set roster based on three 13 -hour shifts and he wanted this to continue. When he was moved twice in 2016, he was given his preferred roster. At a meeting on January 18th 2017, he was offered three 13-hour shifts at a site in Glasnevin, but he refused to come to work when the HR Manager said that she could not guarantee that he could work this roster on a permanent basis. I disagree with Mr Gill when he said that “it made no sense” for the complainant to accept this roster. Despite his faults, it seems that he was a valued employee, and, if he had accepted this roster, and carried out the work in the manner required by his managers and the client, he might still be working for the respondent today.

From what I have read in the meeting notes submitted at the hearing, I find that the respondent wanted to support the complainant with his need to arrange his working hours so that he could help to take care of his child. They permitted him to work his preferred roster for a number of years, and the notes of the meetings show that they were willing to continue to support him in this regard. It would be impossible for the company to arrange a shift and a location to suit the complainant every time he had to be moved. Flexible working requires co-operation between the employer and the employee and it is my view that, when he rejected the offer sent to him on January 18th, the respondent had no further obligation to offer him the exact shift that suited him. I find therefore that no breach of contract occurred.

Conclusion

It is my view that there were substantial grounds justifying the dismissal of the complainant; these are gross misconduct constituting the failure to carry out a reasonable instruction and behaving in an aggressive, demanding and disrespectful manner to the company’s managers. It is my view that any reasonable employer would have dismissed the complainant in these circumstances. However, he was not dismissed for these substantial reasons and over a period of nine weeks, he was issued with a roster which evidently did not suit him and which he did not accept. He was dismissed without a warning that this action would lead to his dismissal.

In conclusion therefore, I find that the process by which this dismissal was carried out was unfair.   I find also that, by his conduct, the complainant contributed 75% to the cause of his dismissal.

On his complaint form, the complainant indicated that he started work for a new employer on March 22nd, 2017, two weeks before he was dismissed. He said that his weekly wages are around half of what he earned with the respondent. I find this difficult to accept, as there is an Employment Regulation Order in place for the Security Industry which provides that employees are entitled to a minimum hourly rate of pay, currently, €11.35. The complainant said that he is now working nights only, which he said, suits his childcare arrangements. In the absence of any evidence to the contrary, it is my view that the complainant suffered no financial loss as a result of the termination of his employment.

As I am satisfied that the complainant incurred no financial loss arising from his dismissal, section 7(1)(c)(ii) of the Unfair Dismissals Act limits the amount of compensation I can award to four weeks’ remuneration. I decide that the respondent is to pay the complainant compensation equivalent to one week’s pay, which I understand to be €422.50.

Reason for dismissal