ADJ-00013654

Worker

Employer

Anonymised Parties

A Security Officer

A Security Company

Representatives

SIPTU

 Management Support Services (Ireland) Ltd

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00018378-001

09/04/2018

The Worker was employed by the Employer as a security officer. He was dismissed on 18th January 2018. The Worker claims his dismissal was unfair.

The Worker submits that he was employed by the Employer on 28th September 2017 as a security officer and was assigned to the Employer’s contract with a named hospital. The Worker argues that he was dismissed on 18th January 2018 on returning from a period of annual leave. The basis for this dismissal was set out in a company letter from Ms A, Operations Manager dated 19th January 2018 which stated that: “…you have failed to make the required standards of a security officer within [the Employer], regrettably it is therefore my decision to dismiss you with notice from [the Employer]”. This decision arose from a meeting on the previous day 18th January 2018 attended by Mr H, Security Manager, Mr C, notetaker and company witness and the Worker. This meeting arose in the following circumstances. Prior to taking up the position with the Employer the Worker had booked flights for a trip to his home country, the planned duration of the trip was for one month. However, given that he had acquired a position with the company he brought his travel plans to the attention of the Employer and offered to reduce same to a two-week trip. This was agreed. The planned duration of the trip was from 27th December 2017 to the 16th January 2018. Based on the roster he received the Worker worked a 12-hour shift on 25th December 2016 and it was his understanding that he would not be rostered until his return from holidays. At approximately 7.30pm on the 26th December 2017 the Worker received a telephone call from Mr H asking him why he was not at work. The Worker advised him that there must be some error in the roster as he was not rostered to work and was due to fly out of Cork airport at 5am and would be travelling to Cork later this evening. The Worker was advised that he was on probation and should contact Mr H on his return. Due to an accident which required hospital treatment the Worker had to delay returning from his home country until 18th January 2018. As soon as the Worker returned to Ireland on 18th January 2018 he made contact with his supervisor to advise that he was available for work and explained the delay in returning to Ireland. The supervisor advised him to contact Mr H. The Worker rang Mr H who advised him to come to the workplace immediately for a meeting. The Worker attended the meeting as requested. The Worker submits that at the meeting, he was advised that his employment was being terminated on the basis that he had not shown up for a shift on 26th December 2017 and had not shown up for a meeting on 16th January 2018. In addition, he was advised that management had received complaints from the Night Shift Supervisors in relation to his responses to emergency calls and adherence to scheduled breaks. The Worker was not provided with an opportunity to respond to these allegations and was required to return his security pass. Specific details in respect of the supervisory complaints were not presented to the Worker who was required to leave premised immediately. The Worker received the letter of termination dated 19th January 2018 from Mr A. This letter indicated that the decision to dismiss was taken by Mr A, Operations Manager even though he had been advised by Mr H, Security Manager at the meeting on 18th January 2018 that he was being dismissed. The letter indicated that the decision could be appealed to Mr Z. SIPTU wrote to Mr Z on 25th January 2018 lodging an appeal on the Worker’s behalf. An appeal hearing took place on 20th February 2018 and a decision to reject the appeal was issued on 27th March 2018. In setting out the Employer’s appeal Mr Z suggested that the Worker had declined the opportunity to be represented. Mr Z further asserted that he had based his decision on documented complaints. The Worker has never been presented with copies of these complaints or given opportunity to respond to same.

SIPTU accepts that the Worker was subject to a probationary period at the time of dismissal. However, this does not exempt the Employer from applying the principles of natural justice and fair procedures in the process leading to his dismissal. In that regard SIPTU cited the Labour Court decision Viking Direct (Oreland) Ltd. V A Worker LCR 17042, Bathman Limited v A Worker LCR19010, Herbert Park Hotel v A Worker LCR18331, Irish Postmasters Union v A Worker AD115, St John Bosco Youth Centre v A Worker LCR19840, Jons Civil Engineering Company Ltd. V A Worker LCR18687. SIPTU argues that these Labour Court decisions clearly indicate that the failure by an employer to observe the provisions of S.I.146/2000 in respect of dismissing a probationary employee is sufficient to render that dismissal as being unfair. SIPTU submits that:

·         Prior to the meeting on 18th January 2018 the Worker was not put on notice that his job was in jeopardy.

·         The Worker was not taken through a disciplinary process.

·         The Worker was not provided with the detail of complaints or allegations being relied on by the Employer.

·         The Worker was not afforded the right to representation in the dismissal process.

·         The Worker was denied the right of reply in relation to the allegations that were relied on to substantiate his dismissal.

The Worker submits that his dismissal was unfair and is seeking compensation.

The Employer submits that on commencement of employment the Worker was issued with Terms and Conditions of Employment and Company Handbook in which it was detailed that he was on probation for a period of six months. The purpose of a probationary period is to allow the employee to assess whether they believe they are suitable for the position and also for the employer to assess whether they think the employee is suitable for the position. In the Worker’s case it became apparent during the early part of his employment that there were difficulties with regard to how he was carrying out his duties, such as providing support to his colleagues when situations arose in the hospital. This resulted in both the Security Manager, Mr H and the Night Supervisor, Mr D speaking to him on a number of occasions. Such was the concern regarding the Worker’s performance that on 21st December 2017 it was necessary to remove the Worker from Accident & Emergency Department because of concerns expressed by his colleague Security Officers and members of the hospital staff as the Worker was not assisting with difficult patients, which would be part of his normal duties. As a consequence, his work colleagues and members of hospital staff did not feel safe when the Worker provided security. On this occasion the Worker was reassigned to another part of the hospital on a temporary basis. (a note dated 22nd December 2018 to Security Manager signed by the Night Supervisor was exhibited). In addition to the issue concerning the Worker’s ability to carry out his duties, there was also a further issue regarding annual leave and his failure to attend work or report his absence. The Worker requested time off to return to his home country for his annual leave, which was to take effect from 27th December 2017. The Worker was rostered to attend duty on 26th December 2017, having confirmed to his Manager that he would be available to do so, but failed to report for duty nor phone in his absence. When he failed to report to work he was contacted by Security Manager by telephone to discover that the Worker was at the airport going on his holidays. Mr H reminded the Worker that he had confirmed to Mr H that he would be attending work on 26th December and that it was not acceptable that he failed to report for work as this let his colleagues down and the company had to organise alternative arrangements to ensure that there was adequate cover on site that night. During the course of this telephone call Mr H made it clear to the Worker that, on his return from his annual leave he was to immediately contact Mr H in order to organise a meeting to discuss his performance. The Worker failed to report back to work after the expiry of his annual leave on 16th January 2018 and only made contact with the company on 18th January 2018 after a number of calls had been made to his phone. When challenged about this, the Worker indicated that he was unwell. However, he failed to provide any reasonable explanation as to why he could not have contacted his employer and advise that he was unwell and unavailable for work. In addition, the Worker did not provide any medical certification to confirm that he was unfit for work. When, eventually, Mr H discovered that the Worker was back in the country he requested him to attend a meeting on 18th January 2018. The purpose of this meeting was, as explained to him prior to his departure in December, to discuss his performance issues at work. At this meeting Mr H addressed the issues concerning his absence from work, his failure to contact the company in his absence and concerns which arose regarding his performance and lack of support of colleagues. As a consequence of this meeting and the fact that the Worker did not instil any confidence in Mr H that things would improve, the Worker was advised that he was not going to be kept and the he had failed his probationary period. A letter issued to him on 19th January 2018. The Worker was afforded the right to appeal the decision of Mr H and his appeal was heard by Mr Z, Public Sector Director. Mr Z issued his decision on 27th March 2018. The Worker proffered, as part of his defence, that he was given permission by his supervisor to go on holidays on 27th December 2017 and he was not required to attend work on 26th December. On examination of this it was very clear that the Worker was on the roster that day and when he failed to attend, his manager immediately contacted him. This would not have been the case had his manager told him he was not required and this is evidence that he was expecting him to come to work. With regard to his failure to contact the Site Manager, the Worker indicated that he did not believe that he was to contact the Site Manager. However, having been absent from work due to ill health, according to the Worker, how would he expect his employer to put him back on a roster unless he was expected to contact the company and how did he know he was not on the roster as he was expected back at work. This is also taking into account that he was told on 26th December to contact Mr H to have a performance review when he came back from his holidays. The Worker also maintains that he was not aware of other performance issues, yet it was confirmed that he was moved by the Night Supervisor in December 2017 to another area because of his inability to assist his colleagues. Mr H also had a conversation with the Worker on the morning of 12th December 2017 regarding issues raised by the Night Supervisor Mr D, these being the Worker’s failure to answer the two-way radio and the Worker’s non-compliance with his rostered breaks (taking longer than rostered). In addition, Mr H had spoked with the Worker and informed him that he would have to try and get more involved with his fellow officers while they are performing their duties. The Worker also maintains that he did not have any representative made available to him for the meeting on the 18th January 2018. Mr H confirmed that he asked the Worker at the commencement of the meeting would he like a third party or representative with him and the Worker advised that he was happy to proceed without someone. The Employer pointed out that this had been after the Worker had been advised that his was a performance review. Based on these facts Mr Z formed the view that there were no grounds for accepting the Worker’s appeal and that Mr H had justifiable grounds for terminating the Worker’s employment. The Employer submits that the Worker started his employment with the Employer on 28th October 2017 (not September as claimed by the Worker). The Worker performance was not satisfactory, which is evidenced by the concerns expressed by both hospital staff and colleagues. The recorded incident in December was not the first time that these concerns had been expressed. The Employer submits that the disciplinary procedure is not applicable during the course of probationary period and in that regard probation reviews are held to assess whether someone is suitable for the position. It became very apparent, over a three-month period only the Worker was not suitable as a Security Officer. Therefore, in those circumstances the Employer believed that it was justified in not continuing his employment. The Employer disagreed with the suggestion that the Employer was obliged to follow the disciplinary procedure because it is not applicable during probation. The Employer argues that to suggest that the disciplinary procedure to be followed would be totally unrealistic bearing in mind that the matters regarding suitability do not strictly relate to just matters which can be subjected to a disciplinary action but could be matters related to personal suitability to positions which would not necessarily be conduct related but could be a mismatch in terms of the person and the job required to be done. The Employer submits that the Worker was not suitable as a Security Officer as evidenced by the concerns held by his colleagues and hospital staff and secondly, he was not suitable because of his clear failure to even notify the Employer that he was not attending work even though he knew he was expected to return after his holidays.

This dispute relates to alleged unfair dismissal. The date of commencement of employment was in dispute. The Worker in his WRC referral form stated that he commenced employment on 28th September 2017. However, at the hearing he was not sure that this date was correct. The Employer stated that the date was in fact 28th of October 2017. In any event, the Worker had less than 12 months service with the Employer. I have given careful consideration to both the written and oral submission of the parties. I note that the Worker’s Written Statement of Terms and Conditions of Employment provides for probationary period of 6 months with an option to extend it to maximum of 9 months. I find that the probationary period is the opportunity for an employer to assess the suitability of an employee and for an employee to assess the suitability of the company. I accept that where an employee is considered unsuitable for permanent employment an employer has the right, during the probationary period, to decide not to retain that employee in employment. However, this can be only carried out with adherence to fair procedures. It is essential that an employer must not only show that there were substantial grounds justifying the dismissal but also that fair procedures were followed before the dismissal takes place.

In the circumstance of this dispute, the dismissal procedures applied to the termination of employment of the Worker were, in my view, flawed. There was an absence of procedural fairness in the manner in which the decision to terminate the Worker's employment was taken. The Employee was not afforded fair procedures in accordance with the Code of Practice on Grievance and Disciplinary Procedures S.I. 146 of 2000.

I find that the Worker contributed significantly to his dismissal. I note that the issue of whether or not the Worker was expected to work on the 26th December 2017 was in dispute. I note that the Employer stated at the hearing that the rosters for the Christmas and the New Year period were prepared in the first week of December to ensure fair rotation of time off for the staff i.e. a staff member who would be off during Christmas would work New Year’s period and vice versa. The Worker did not dispute this arrangement as outlined by the Employer. It is therefore questionable that the Worker would get both Christmas and New Year off. Furthermore, the Worker confirmed in his submission that the planned duration of the trip was from 27th December 2017. However, setting that aside, there was no dispute that the Worker was expected to be back on duty on the 16th January 2018. He failed to attend work and did not contact the Employer to inform of his absence. I note the Worker’s explanation that due to an accident he required hospital treatment in his home country which caused the delay. The Worker’s Written Statement of Terms and Conditions of Employment clearly states that “All cases of sickness absence must be reported to your Manager at the latest within one hour of the commencement of your working day, indicating the expected duration of absence.” The Worker did not inform the Employer of his illness. At the hearing, the Worker was unable to provide any evidence of his illness and/or hospital treatment. He was also unable to show that he had originally planned to return to Ireland on the 16th January 2018. At the hearing he exhibited confirmation of his return flight to his home country. The document confirmed that, in fact, the flights were booked for 27th December (am) 2017 and 18th January 2018. The Worker was not able to show that he had originally booked a flight to Ireland for the 16th January 2018. I find that the note of the Night Supervisor dated 22nd December 2016 stating that the Worker had to be moved to different area of the site due to his inability to assist his colleagues shows that there were ongoing issues in relation to the Worker’s performance. On balance, I find that it was indicated to the Worker that his performance is unsatisfactory.

Having considered the above I find that the Worker was unfairly dismissed. However, he contributed significantly to his dismissal.

In the circumstances I am satisfied that the dismissal was procedurally unfair. Having regard to the length of service involved and the Worker’s contribution to the dismissal I recommend that the Worker be paid €500 as a once off ex-gratia payment.

Unfair dismissal- fair procedures—worker’s contribution to dismissal