Complainant

Respondent

Anonymised Parties

A Security Controller

A Security Company

Representatives

Melissa Wynne Ormonde Solicitiors

John Barry Management Support Services (Ireland) Ltd

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-00021766-001

12/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00021766-002

12/09/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00021766-003

12/09/2018

The Complainant commenced employment as a Security Controller, with the Respondent, a Security Company, on 17th January 2014. His employment ended on 23rd august 2018. His gross weekly pay was €681.60. A complaint was lodged with the WRC on 12th September 2018.

The Respondent provided a detailed written submission.

The Respondent provides a wide variety of security services for clients on a contract basis. As part of these services the company operate a monitoring station where the Complainant was employed as a Controller. The Monitoring Station is the centre for all communications within the company and is housed in a secure location within the Head office. The Monitoring station operates 24 hours a day and is manned by two Controllers. It is the central point of contact for all officers on and off duty.

Due to the range of incoming alerts, most of which arise as a result of an emergency, a Controller must rapidly respond to all communications received and to provide support and assistance, whether it be responding to emergency requests for assistance or providing feedback or organising cover where an officer has to leave a site or does not show for duty. Responses will often involve alerting the mobile officer or the Gardai or emergency services depending on the nature of the alert. The Monitoring Station also provides access control for the entrance to the Head Office when there is no receptionist on duty. This means responding to door-bell activations, monitoring who is approaching the door and allowing them to enter or notifying someone in the office to meet them. In addition, the Monitoring Station is solely responsible for remote monitoring, which means Controllers are required to respond to alarm activations or calls from customers, responsible for providing communication contact with all officers on duty, whether they be static or mobile.

The role of a Controller is very important and thus they are required to be alert at all times when on duty. Such is the importance of being alert that Controllers are not permitted to use mobile phones or read books etc when on duty as, based on experience, these can be a cause of distraction resulting in delayed responses. The Complainant was one of a number of Controllers employed in the control room who reported to a Chief Controller.

The control room is an integral part of the office in the company’s head office and there is a very large window in the internal wall that is open to the control room so that any one passing can see into the control room and the controllers can see out.

The Respondent submits that in the period July to August 2018, two incidents arose involving the Complainant failing to pay attention to his work. Such was the seriousness of this that it was decided the Complainant should be suspended, on pay, whilst Mr. A, Operations Manager, conducted a full investigation into the matter. The Complainant was issued with a letter confirming his suspension, on pay, on the 17th August 2018.

The Complainant was advised that two issues being investigated were using a personal phone whilst on duty on the 1st August and the Complainant failing to be alert whilst on duty in the control room on the 15th August when someone came to the front door. The investigation was conducted by Mr. A, which involved him in having an interview all the officers on duty at that time.

Having completed the investigation Mr. A compiled an investigation report and submitted it to management for consideration as to whether any action would be taken.

Having completed the investigation Mr. A contacted the Complainant and arranged to meet him on the 21st August. At the meeting the Complainant was advised that his suspension was being lifted and he should return to work at 7am the following morning. The Complainant indicated that he was hoping to attend the doctor over the next couple of days as a result of something that happened to him the previous weekend. Mr. A had no difficulty with this and it was agreed that the Complainant would attend work as rostered.

As stated by the Complainant in his claim form, he did ask Mr. A when he was leaving this meeting if there would be disciplinary action and Mr. A responded that he was not aware of what decision would be made as he was only doing the investigation and he was submitting his report to senior management. He confirmed it would be up to senior management to decide what action, if any, they may take.

On the 22nd August 2018 the Complainant returned to duty and asked if he could speak to Mr. A. He advised Mr. A that, having met with a few of his colleagues the previous night, he felt he was being abused by the Respondent company by being brought back off suspension because he believed the company was short of staff. The Complainant also indicated to Mr. A that he was not comfortable working under the prospect that he may be disciplined as a result of the events in August. In response Mr. A did ask the Complainant did he feel he had done anything wrong, and the Complainant confirmed that he accepted that he had done something wrong. Mr. A then said that, in those circumstances, surely, he could understand and accept that there may be some follow up as a result of the investigation. However, he did advise the Complainant he should take one step at a time and not follow the advice of his colleagues and look after his own affairs.

The conversation ceased at that stage and the Complainant reported to duty. Subsequent to this conversation the Complainant approached the General Manager’s Personal Assistant to see whether he could have a meeting with Mr. B. Unfortunately, Mr. B was very busy that day and the Complainant was advised that Mr. B could see him at 9am the following day. The Complainant advised Mr. Bs’ PA that it did not suit him as he would be finishing a twelve-hour shift at 7am. The Complainant advised that he would get back to her. Subsequently he re-contacted her and advised her he was not going to make himself available for any further shifts until Mr. B met with him.

This refusal to work came to the attention of Mr. A, who subsequently approached the Complainant in the company of Mr. C, Control Room Manager and asked the Complainant whether it was correct that he had advised Mr. B’s Personal Assistant that he was refusing to do any more work or more shifts until he had a meeting with Mr. B. The Complainant confirmed that this was the case. Mr. A indicated to the Complainant that he was, in those circumstances refusing to work.   His conduct was regarded as so serious that it was seen as gross misconduct and this meant that his employment was going to be terminated. Mr. A subsequently issued a letter to the Complainant confirming that his employment was terminated.

The Respondent submits that, in his submission to the WRC, the Complainant, is attempting to link a matter relating to a request by staff for a pay increase, to the termination of his employment. Yet, it is very clear that the reason why his employment was terminated was specifically as a result of his conduct and no such link exists.

In this case the company was involved in an investigation into two incidents which took place within a very short period, both involving a failure to carry out duties in a manner prescribed by the company. In such circumstances the company is entitled to investigate these issues and Mr. A undertook to carry out his investigation. The Complainant was made aware that these incidents were being investigated and the company chose to suspend him from duty as he would have been working with the officers who were going to be interviewed regarding the incident and therefore it would be inappropriate that they should be working side by side when this matter was being investigated.

It was a very short suspension running from the 17th of August until the 22nd. Once Mr. A had completed his investigation he was satisfied that there was no longer a need for the Complainant to remain on paid suspension and he could return to his duties. It was not simply a case that the company needed the Complainant to be on duty but also it was very clear that the information had now been collated, the Complainant could no longer influence anybody in relation to information and it was appropriate he be fully restored to his duties while being paid by the company. In fact, had he been kept on suspension any longer we are sure the Complainant would have suggested this was further evidence of victimisation.

However, the Complainant once again interpreted the company’s actions in a different way and maintained that he was being used by the company because they were short of staff. In this regard even if the company was short staffed and needed cover, there was no apparent reason why the Complainant should be retained on suspension whilst the report was being considered by senior management.

The Respondent submits that the Complainant refused to carry out his duties until the General Manager complied with the Complainant’s demand to meet him, even if this meant the General Manager having to cancel what he was doing. Such behaviour showed, at the minimum, a blatant disregard for normal procedures, a clear disrespect for senior management and also a disregard to work colleagues for refusing to make himself available to work and putting additional pressure upon them.

The Respondent submits that no employer should expect to be treated in this fashion or expect such blatant disrespect to a member of their team. The Complainant has tried to justify his actions by saying that he was not getting a response from senior management as to what decision they were going to make. Bearing in mind that Mr. A only issued his report on the 21st September and that report had to be submitted to Mr. B, who was then entitled to take time to consider it before coming to any decision as to what action he was or was not going to take. The Complainant was acting completely unreasonably in demanding that he be told the outcome immediately.

It is the Respondent’s contention that the Complainant’s behaviour was so bad that the company was entitled to respond in the way it did. He had shown clear disregard for company rights to roster him accordingly, clear disregard to the fact that his behaviour was extreme and grossly insubordinate towards his senior manager, by effectively threating him and finally refusing to comply with a reasonable instruction from his employer.

In the circumstances, the Complainant had left the company with no alternative but to react the way it did, and the Complainant put himself in a position where he left his employer with no alternative but to terminate his employment because of his conduct.

In direct evidence at the hearing Mr M agreed that the Complainant was very upset that there was no closure in relation to the investigation.     It was also agreed by the Respondent that there had been no procedures utilised when dismissing the Complainant.

Mr M in evidence stated that when he asked the Complainant whether he was refusing to work until he met with Mr D the Complainant replied in the affirmative. When this answer was given, on more than one occasion, Mr M told the Complainant that this was Gross insubordination and that he was dismissed.

In conclusion, the Respondent submitted that the Complaint did not act reasonably; when he did not get his own way, he decided not to make himself available for work, he should have gone through the proper procedures.

The Complainant provided a detailed written submission.

The Complainant submitted that on the 2nd of August 2018 it was alleged by the Respondent that the Complainant breached company rules regarding the use of a personal mobile phone whilst on duty on the 1st of August 2018. The Complainant explained the reasons behind the use of his personal mobile phone to Mr A, Operations Manager, who advised the Complainant to only use his personal mobile phone when on an official break and outside of the control room. It was never indicated by Mr A to the Complainant that this conversation amounted to a verbal warning for misconduct.

On the 17th of August 2018 it was alleged by the Respondent, by letter, that the Complainant was not fully alert while on duty in the control room on the 15th of August 2018 and had failed to give access to another employee of the Respondent promptly. No verbal warning was given to the Complainant in relation to this incident.

The letter dated the 17th of August 2018 was hand delivered to the Complainant as he finished his night shift informing the Complainant of his immediate suspension with pay while an investigation was conducted into the two incidents, the use of a personal mobile phone and not being fully alert while on duty in the control room. On that date Mr C, Assistant Operations Manager, asked if the Complainant had anything to say in relation to the allegations and the Complainant informed him of the faulty buzzer which sometimes needed to be pressed numerous times before the security controllers in the control room would be alerted to a request for access to the premises by an individual.

On the 21st of August 2018 the Complainant had a meeting with Mr A who informed him of the conclusion of his investigation and that the suspension was lifted. Mr A could not clarify if this was the conclusion of matters and stated he was involved in the investigation process only.

On the 22nd of August 2018, the Complainant was not happy returning to work with the threat of further disciplinary actions being brought by the Respondent and sought to clarify this with Mr B, General Manager. The Complainant attempted to organise a short meeting with Mr B through his Personal Assistant but to no avail, even when the Complainant informed her it was a personal matter of some urgency. Mr B was unavailable on the day and the Complainant, upon the advice of his Supervisor informed the Personal Assistant that he was not in a position to be rostered for work until he met with Mr B to clarify the Complainant’s position regarding the investigation.

On the 22nd of August 2018, Mr A and his Supervisor approached the Complainant while he was on an official break and informed his that he was dismissed for insubordination arising from his refusal to be rostered for any future shifts or completing any rostered shifts. The dismissal was effective immediately, the Complainant was to collect his personal items and was escorted out of the building.

On the 23rd of August 2018 The Complainant was informed by letter from the Respondent of his dismissal and that he would be paid in lieu of his notice period.

In conclusion, the Complainant maintains he was unfairly dismissed from his employment with the Respondent; that the Respondent failed to justify the dismissal as fair and did not act reasonably in the circumstances; the Respondent did not allow fair procedures and the sanction of immediate dismissal was not a proportionate response to what was said by the Complainant.

I have considered this matter carefully.

S6(4)(a) of the Act states without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from the conduct of the employee.

In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore consider both the fairness of the procedures adopted and substantive issues leading to the dismissal.

Whatever the differences between the Complainant and management it is obvious that the Complainant was unceremoniously turfed out of his employment.   He did not receive the any of his basic rights and was treated in a very shabby manner. He was simply given a letter at the end of a shift and told to go home and not return. There was no opportunity given to appeal the decision. Fair process was markedly absent in this case.

Whatever type of investigation took place is irrelevant as it was not part of the rationale for the dismissal, in so much as there was a rationale; it was submitted that the complainant was dismissed for refusing to put himself down for duty until he found out what was being done in relation to the allegations made against him. The Complainant was entitled to look for certainty about his future which was never given. The sanction to dismiss was disproportionate.

The Complainant is not totally innocent of blame in this matter either as he should have continued to work, “under protest” if necessary, while processing a grievance about the on-going situation. By refusing to work he only exacerbated the situation. However, the onus is on the employer to ensure fair procedure is followed, even if an employee is being obstinate. In this case the Complainant could have been suspended pending an investigation, as the Respondent had done so readily only weeks before the dismissal.

This was an “on the spot dismissal”, without a modicum of fair procedure, and must, therefore, be unfair.

The Complainant did get employment within 10 weeks of his dismissal, he did so without a reference from the Respondent. His earnings are about €150 less per week than what he earned with the Respondent. He was not given any credit for his time as a controller with the Respondent which restricted his re-employment opportunities.

In deciding on what is fair by way of compensation I take into account the 10 weeks the Complainant was out of work and the on-going differential between what he had earned with the Respondent and what he earns with his new employer.

The Complaint is well founded, and I direct the Respondent pay the Complainant compensation of €10,710.

The Respondent failed to provide the Complainant with his paid holiday and / or annual leave entitlements. From 17th of January 2014 to the completion of a probationary period the Complainant was paid €13.00 per hour gross. From the completion of the probationary period until the 22nd of August 2018 the Complainant was paid €14.20 per hour gross. The Complainant was rostered to work 12 hour shifts therefore his holiday/annual leave entitlements for 20 days per year should have amounted to €3,408. The Complainant was actually paid for 8 hour shifts for 20 days per year amounting to €2,272.00.

In conclusion, the Complainant maintains that he was not compensated for the loss of annual leave entitlements on the termination of his employment with the Respondent.

The Respondent submits that an employee is entitled to 4 weeks holidays. The Complainant was not working 5 days a week and his roster cycle would mean that 4 weeks would be made up of 7 days a fortnight. Therefore, the Respondent would contend that in receiving 20 days at 8 hours per day he was getting more relaxation time than if he only got 14 days at 12 hours thus the company were compliant.

I find there has been no breach of the Act.

The complaint is unfounded.

The Respondent failed to provide the Complainant with his paid holiday and / or annual leave entitlements. From 17th of January 2014 to the completion of a probationary period the Complainant was paid €13.00 per hour gross. From the completion of the probationary period until the 22nd of August 2018 the Complainant was paid €14.20 per hour gross. The Complainant was rostered to work 12 hour shifts therefore his holiday/annual leave entitlements for 20 days per year should have amounted to €3,408. The Complainant was actually paid for 8 hour shifts for 20 days per year amounting to €2,272.00.

In conclusion, the Complainant maintains that he was not compensated for the loss of annual leave entitlements on the termination of his employment with the Respondent.

The Respondent submits that an employee is entitled to 4 weeks holidays. The Complainant was not working 5 days a week and his roster cycle would mean that 4 weeks would be made up of 7 days a fortnight. Therefore, the Respondent would contend that in receiving 20 days at 8 hours per day he was getting more relaxation time than if he only got 14 days at 12 hours thus the company were compliant.

I find that there has been no breach of the Act.

The complaint is unfounded.