UDD1911

The Complainant was employed by the Respondent as a security guard between August 2015 and 11 April 2017 when his employment was terminated. The Complainant worked up until February 2017 at the premises of a client of the Respondent located in Smithfield, Dublin 7. He worked twelve-hour night shifts exclusively. There appears to have been no issue with the Complainant’s performance at any stage. In fact, Mr O’Sullivan – solicitor for the Respondent – stated several times during the hearing before the Court that the Respondent regarded the Complainant as an excellent worker. This was also confirmed by Mr McNeill, the Respondent’s Operations Manager, in his evidence.

Two issues arose in the Complainant’s place of work in February 2017. The first issue related to a draft letter setting out the basis of a collective pay claim which letter the Complainant drafted and circulated amongst his colleagues and which appears to have been unintentionally communicated to certain of the Respondent’s client’s personnel. The second issue arose from the Complainant’s communication to Mr McNeill, in or around the same time, that he was uncomfortable performing certain security-related tasks at the client’s premises. The Complainant’s case is that the events that unfolded from early February 2017 onwards and that culminated in his dismissal amounted to penalisation of him for his part in raising the pay claim issue. At the outset of the hearing, his counsel also submitted that the concerns raised by the Complainant in relation to certain security monitoring operations he was required to perform in the client’s offices constituted a protected disclosure within the meaning of the Protected Disclosures Act 2014 and that his dismissal resulted was a consequence of his having made that protected disclosure. However, this aspect of the complaint does not appear to have been actively pursued in the course of the appeal.

The Respondent’s case is that the Complainant could no longer be accommodated with night shift work at the client’s location in Dublin 7 following his refusal to continue performing work with which he was uncomfortable and which he believed he wasn’t sufficiently trained to undertake. In the circumstances he was offered alternative work at a location closer to his home on no less favourable terms and conditions. However, he refused to relocate despite the existence of a mobility clause in his written contract of employment. Mr Cullinane, the HR Director, gave detailed evidence of the many written invitations he extended to the Complainant to avail himself of the Respondent’s grievance procedure and to return to work at any one of a number of suitable sites where the Respondent had a presence. However, the Complainant continued to refuse to take up any alternative role and/or avail himself of the grievance procedure. Ultimately, according to Mr Cullinane he was effectively left with no option but to issue the Complainant with his P45 because of his ongoing unwillingness to return to work. Mr Cullinane took that decision without invoking the Respondent’s disciplinary procedure.

The Complainant gave evidence in relation to his loss to date and his efforts to mitigate his loss. He told the Court that he had applied for some four hundred positions since his dismissal and had attended only four to five interviews. He said he had applied to five or six different security firms without success. He also told the Court that he had completed a twelve-month part-time evening course. He has been in receipt of Jobseekers’ Benefit from April 2017 to the date of the within hearing and is therefore seeking compensation of two years’ remuneration.

Discussion and Decision

In circumstances where Mr Cullinane’s clear evidence to the Court was that he effected the Complainant’s dismissal without invoking the Respondent’s disciplinary procedure, the Court has to find that that dismissal was unfair and in breach of the Act.

However, it does fall to the Court to consider to what extent the Complainant contributed to his own dismissal and to evaluate the efforts he claims to have made to mitigate the loss he suffered as a consequence of his unfair dismissal.

The Complainant accepted in cross-examination that he had received numerous invitations from Mr Cullinane to utilise the grievance procedure and to return to work at an alternative site. However, he refused all overtures from Mr Cullinane because he had formed the firm view that the decision to remove him from the Dublin 7 site was effectively a disciplinary sanction imposed on him for his involvement in drafting the wage increase claim and/or raising the alleged protected disclosure.

Having carefully considered both the Complainant’s evidence and that of Mr Cullinane, the Court is of the view that the Complainant’s persistent refusal to attend work at an alternative location, even under protest whilst availing himself of the grievance procedure, was ill-judged on his part and left the Respondent with little or no opportunity to address the issues that had arisen in connection with the Complainant’s employment at the Dublin 7 site in February 2017. In that regard, the Court finds that the Complainant contributed very significantly to his own dismissal.

The Court finds the evidence tendered by the Complainant to the effect that he has been unable to find alternative work in the period since 11 April 2017 to date to be lacking in credibility and cogency. The Complainant is well educated and experienced. He holds a Private Security Authority licence and has a bachelor’s degree in international business. He has good language and communications skills. The Court is aware from its own knowledge that there are many current vacancies in the jobs market, in the security industry and elsewhere, that offer remuneration in or around the level that the Complainant was in receipt of while he was in the Respondent’s employment. In short, the Court is not satisfied that the Complainant has made reasonable efforts to mitigate his loss. For that reason, the Court marks the compensation payable to the Complainant at nil.

The appeal succeeds and the decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
CC______________________
27 February 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.