Complainant

Respondent

Anonymised Parties

An Employee

A Security Company

Representatives

SIPTU

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-00026061-001

06/02/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00026061-002

06/02/2019

The complainant commenced employment with the respondent on 12 August 2013 and at the time of his dismissal he was employed as a security operative. The complainant had a full-time contract and was seeking full-time hours and had written to the respondent over several months requesting regular hours on the site where he was working. The complainant states that he also reported a serious incident on 14 December 2018 of aggressive behaviour against him by colleagues but this was not investigated. On 14 December the complainant requested a meeting with the respondent via text message to discuss the fact that he was not been given full-time hours. A meeting took place on 18 December with Mr. B and Mr. T and the complainant was advised that he would no longer be working for the respondent. Following the meeting, the complainant sought written clarification as to the status of his employment and was advised by the respondent that an investigation would be taking place into issues discussed at the meeting. On 20 December, the complainant was rostered to work and as he had not had instructions not to attend work, he reported to work at 7 am. The complainant states that he was unable to gain access to his workplace but after calling his manager and the operations manager, he was allowed into the building by a colleague.

The complainant states that he was advised by Mr. T to go home and he complied with this request. The complainant asserts that there was no detail of any incident recorded in the daily security report of any wrongdoing on the part of the complainant on 20 December. The complainant submits that later that day, he received a letter of dismissal by e-mail from the operation’s director Mr. B. The letter made allegations against the complainant regarding aggressive behaviour on 18 and 20 December. The complainant states that he was summarily dismissed without notice and without any investigation or disciplinary procedures being followed. The complainant’s union representative issued a letter to the respondent on 15 January 2019 seeking a meeting to discuss the dismissal. The meeting took place on 31 January 2019. The respondent was represented by Mr. B and Mr. T. The union sought the reinstatement of the complainant on the basis that there had been no disciplinary procedures followed and no clear details or evidence of the allegations provided to the complainant. However, the respondent advised that it was not willing to reinstate the complainant. The union wrote to the respondent on 31 January confirming the details of the meeting and seeking the complainant’s notice entitlement to be paid. In this regard, the complainant commenced employment on 12 August 2013 and was dismissed on 20 December 2018 and states that he had over 5 years’ service with the company and is entitled to 4 weeks’ notice. The complainant furnished details regarding the loss of earnings of the complainant in respect of 22 weeks loss from the date of dismissal to the date of hearing together with his entitlement of 4 weeks minimum notice.

The respondent states that on Tuesday 18 December 2018, the complainant attended a meeting at the company’s office at the request of the Director, Mr. B. The respondent submits that at the meeting, the complainant became very aggressive towards Mr. B and his colleague Mr. T and also stated that he would go on to the site and cause trouble. The respondent asserts that the complainant was requested to leave the site there and then. The respondent maintains that on the morning of 20 December, the complainant attended at one of its client’s sites after he was told not to following his threat to cause trouble and Mr. B’s instruction of him not to do so. The respondent submits that as a result of the complainant’s actions on 18 December at its office and again on the morning of 20 December at its client’s place of business, Mr. B had no choice but to issue the complainant with a letter of immediate dismissal on the basis of gross misconduct. The respondent states that the complainant’s actions and threatening behaviour was unacceptable.  

Pursuant to Section 1 of the Unfair Dismissal’s Act, the dismissal of an employee is deemed to be unfair unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. Having heard the evidence in the instant case, I find that the complainant was dismissed with no detail of the allegations being made against him and was dismissed without having had an opportunity to review any documentary evidence or being in a position to discuss the allegations with the respondent.

The complainant’s case is that his dismissal was unfair as the process that led to the decision to dismiss does not meet the standard for fair procedures set out in case law. Pursuant to the case of Samuel J Frizelle v New Ross Credit Union [1997] IEHC 137, the High Court set out a number of legal principles to be observed reinforcing the concept of procedural fairness and requiring the employer to establish that it followed a fair procedure.

Having examined the respondent’s Disciplinary Policy, it states “No decisions will be made without the employee having been given the opportunity to fully state their case”… “ the employee will have the right to appeal against any disciplinary action that is taken against them”. Under the section relating to Gross Misconduct, the policy provides for suspension with pay pending an investigation. It also provides for a disciplinary hearing where any allegation would be put to the employee and that the employee would be allowed trade union representation. Having regard to the evidence heard, I am satisfied that the respondent breached its own procedures and the principles of fair procedures and natural justice as set out in Statutory Instrument 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) in that;

·         The complainant was summarily dismissed on 20 December 2018

·         There were no detailed allegations provided to the complainant

·         There was no investigation carried out by the respondent

·         There were no disciplinary procedures followed and no formal appeal hearing took place

Having adduced the totality of the evidence, I find that the decision to summarily dismiss the complainant was not within the range of reasonable responses of a reasonable employer. I find that the respondent’s decision to dismiss the complainant was unreasonable and disproportionate and therefore I find that the complainant was unfairly dismissed by the respondent.

I also find that the complainant has a legal entitlement of 4 weeks minimum notice.

I find the complaint to be well-founded. I find that the complainant was unfairly dismissed by the respondent. Having considered the remedies, I consider that financial compensation is the appropriate remedy in this case. Having examined the losses sustained by the complainant as a result of his unfair dismissal, I direct the respondent to pay the complainant financial compensation in the amount of €10,251. The respondent is also directed to pay the complainant 4 weeks pay in lieu of notice.

Unfair dismissal, minimum notice