ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00016029

Complaint:

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-00020810-001	26/07/2018

Date of Adjudication Hearing: 07/11/2018

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 8 of the UnfairDismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant contends he was unfairly dismissed for moving a vehicle off site and falling asleep during his shift.

Summary of Respondent’s Case:

The Respondent submits that the Complainant was not unfairly dismissed. He was dismissed by reason of his gross misconduct and serious dereliction of duty while also having a live final written warning on his personnel file. The Respondent submits that the relationship of trust and confidence that must exist between an employee and an employer was destroyed as a result of the Complainant’s misconduct complained of and which misconduct was admitted by him. Prior to the Complainant’s dismissal, the Respondent undertook a full disciplinary process, including an investigation, disciplinary hearing and appeal hearing in accordance with the Respondent’s Disciplinary Procedure.

The Complainant commenced employment on 12 January 2002 and transferred internally to work as a security guard on 8 April 2013. His duties as a security guard involved the provision of a security service at the Respondent’s location where security is of particular and paramount importance. The location has a large number of employees living in the Respondent’s location and valuable stock on site. In June 2017 the Complainant left his shift early without authorisation on two separate occasions. Disciplinary proceedings followed and he was issued with a final written warning. This was to remain active for 12 months.

On 13 February 2018 it was alleged that a number of incidents occurred during the Complainant’s shift which led to the Respondent initiating an investigation process. It was specifically alleged that

(a) The Complainant left his workplace and took a company vehicle offsite without authorisation and

(b) He fell asleep while on duty on two separate occasions.

An investigation meeting was held with the Head of Security, following which a disciplinary meeting with a Director was held. He was informed on each occasion of the allegations, of his right to be heard and his right to be accompanied. The Complainant agreed with the facts of the matter under investigation and following the disciplinary meeting, by letter dated 27 March 2018 the complainant was dismissed. In the letter, it was outlined to the Complainant that following his explanation that he left the premises to obtain food, it was decided that this action did not constitute a gross dereliction of duty but rather a serious dereliction of duty. In relation to the second incident it was found that the Complainant went asleep on at least two separate occasions resulting in a most serious security exposure and that this constituted an act of gross misconduct. The Complainant was given the right to appeal the dismissal. Without prejudice to the gravity of the Complainant’s misconduct and the outcome of the disciplinary process, as an expression of goodwill and gratitude for the Complainant’s long service, the Respondent paid him a discretionary payment of eight week’s pay. The Complainant appealed the decision, citing mitigating circumstances and submitting that the security exposure was exaggerated and sensationalised. An appeal hearing was held by the Financial Controller on 25 April 2018, at which the Complainant was accompanied by his solicitor. The mitigating factors put forward were considered. The appeal decision letter considered and replied to each factor and the appeal was rejected.

The Respondent relies on Section 6 (4) of the Acts as follows:

“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 one or more of the following:-

a)…

b) the conduct of the employee”.

Case law is cited in support of arguments in relation to relevant tests of determining whether a dismissal for alleged misconduct is fair (Kenneth Walker v Maplin Electronics Limited UD1424/2009) and the test of whether or not it was reasonable for an employer to dismiss an employee (Allied Irish Bank plc v Purcell [2012] 23 ELR 189).

The Respondent submits that it is entitled to take a very serious view of the Complainant’s conduct which amounted to gross misconduct. It is a core duty of a security guard to be present, awake and alert at all times during his shift. It is submitted that the Respondent at all times applied fair procedures to the investigation, disciplinary and appeal stages. It is submitted that the Respondent’s decision to dismiss was reasonable, proportionate and appropriate.

Summary of Complainant’s Case:

It is submitted that the decision to dismiss the Complainant was disproportionate and unfair given the circumstances. The Complainant suffered from a medical condition and the medication he was taking led to some drowsiness and the Respondent did not sufficiently take this into account. The atmosphere in the security hut also was conducive to the occupant ‘nodding off’. It is submitted that the final written warning should not have been administered as there were mitigating circumstances in that the Complainant and his wife had suffered a bereavement. It is further submitted that the monotony of duty and the fact that other employees often fell asleep on duty was not taken into account by the respondent in their deliberations. The Complainant, in evidence stated that he had given years of loyal service, had often helped out in emergency situations which could have cost the employer dearly had things gone wrong. He believed the Head of Security had it in for him and that others were not treated the same way he was treated. In the circumstances, the dismissal was disproportionate and extreme.

Findings and Conclusions:

The Complainant was dismissed primarily for falling asleep at the security desk at his place of work. Although the Complainant believed the potential consequences were exaggerated and sensationalised, I find the evidence shows the extremely serious potential consequences of such a situation. I find that the Respondent carried out a full and fair investigation and disciplinary process during which the Complainant was given the right to know the charges against him, the right to be heard, the right to be accompanied and the right to appeal. In relation to the question as to whether the penalty was disproportionate, the objective test as set out in Bank of Ireland v Reilly [2015] IEHC 241 stated in that context;

“The question..is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

Given the evidence and given the fact that there was a final written warning live on the Complainant’s file, I find that the Respondent’s decision to dismiss was within the band of reasonable responses. I find the Complainant in this case was therefore not unfairly dismissed and I find his complaint to be not well founded.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim.

I find the Complainant’s complaint of unfair dismissal to be not well founded.

Dated: 10/01/2019

Workplace Relations Commission Adjudication Officer: Gaye Cunningham