Complainant

Respondent

Anonymised Parties

A Security Operative

A Security Company

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-00032681-001

03/12/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00032681-002

03/12/2019

The Complainant was employed as a security guard by the Respondent company at a windfarm site. He received a weekly salary of €477 gross, €417 net. He commenced working with the Respondent on the 2nd February 2018 and he claims that his employment terminated on the 18th November 2019. The Complainant is claiming that he was unfairly dismissed. The Respondent is disputing the fact of dismissal and asserts that the Complainant was on temporary lay-off and therefore never dismissed.  

The Respondent asserts that the Complainant was involved in an aggressive incident with colleagues on site during a hand-over of shift on the 8th November 2019. The statements of colleagues suggested that the behaviour of the Complainant was totally unacceptable, and this resulted in the Complainant being suspended with pay pending an investigation. At the investigation meeting of the 12th November 2019, the Complainant was offered representation if he so wished, but declined. Some personal domestic issues were cited by the Complainant at this meeting and the Respondent submits that they had to show empathy and decided not to take disciplinary action. The Respondent decided that the Complainant would be reinstated back on-site but on an opposite shift to that of his colleague.

On the 14th November 2019 the Respondent received an email from the project manager of the civil engineering contractor on the site, stating that both the contractor and the owner of the site did not wish to see the Complainant back working on the site.

On the 15th November 2019 the Respondent received an email from the solicitor of an aggrieved colleague, a colleague with whom the Complainant had an interaction with on the 8th November, stating that its client could not be expected to work with the Complainant, amongst other things, on health and safety grounds. On the same day the Respondent sent an email to the Complainant informing him that he was to be laid off on a temporary basis until an alternative position could be found.    

A formal letter of temporary layoff was sent to the Complainant on the 20th November 2019 and there then followed some correspondence with the Complainant’s Trade Union.

On the 6th December 2019 the Respondent sent a letter to the Complainant stating that there was no longer work in the local area and it was envisaged that there would be none for the foreseeable future. The Respondent offered the Complainant one weeks’ notice and payment for any outstanding holidays due.

The Respondent submits that the Complainant was not actually dismissed but that he is currently on  temporary layoff.

The Complainant submits that he was unfairly dismissed and rejects the Respondent’s position that he is on temporary layoff. After investigation of the incident on 8th November 2019 the Complainant asserts that the Respondent quite clearly decided that no disciplinary action would ensue and that he would return to his original position. However, on the 18th November the Complainant was told he was being laid off on a temporary basis and a formal letter to this effect was sent on the 20th November 2019.

On the 22nd November 2019 the Respondent wrote to the Complainant’s Trade Union saying that no position was available but that the Complainant was free to take up a position with another company if he so wished. The Complainant exhibited copies of two online advertisements for security personnel with the Respondent on the 19th and 20th November 2019 respectively. The Complainant submits that when a company is advertising for security workers locally at the same time as a lay off of a current employee, then that fact alone is tantamount to dismissal. In addition, the Complainant contends that when a worker receives a letter saying that they are being offered pay in lieu of notice, then this also suggests dismissal.

The Complainant submits that the he had an unblemished record with the Respondent and therefore the only reasonable conclusion that can be reached is that the Complainant was dismissed unfairly.

Unfair Dismissal:

The Law:

Section 1 the Unfair Dismissals Act, 1977, as amended, (the Act) provides a definition of dismissal:

“dismissal”, in relation to an employee, means—

(a) the termination by his employer of the employee’s contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

( b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;

Section 6 of the Act states, in relevant part, as follows:

“6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(4) 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 one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, 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 referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

The first issue I must decide is whether there was a dismissal in line with the definition at 1(a) of the Act. At the outset of the hearing I asked the Respondent whether the fact of dismissal was at issue. The Respondent accepted that there was a dismissal. However, it became clear as the hearing progressed, that the Respondent was arguing the position that the fact of dismissal was at issue, and that the position is that the Respondent considered the Complainant to be still in employment but that his status is one of temporary layoff. Furthermore, the letter of the 6th December 2019 has all the attributes of a final letter of termination of contract. It referred to a previous letter in a series of communications which, up until then, signalled a temporary layoff situation, but then states” … I now wish to inform you that we do not have any work in the (X) area and we don’t envisage any work being done by the company in the future. The company would like to offer you one weeks notice with pay and any outstanding holidays due…”.

I am satisfied that the actions of the Respondent in the aftermath of the incident were consistent with the Complainant’s employment having been ended by the Respondent. Both the verbal and documentary evidence presented to me leave me with no other reasonable conclusion but to find that the contract of employment was terminated by the Respondent and that there was a dismissal as defined under section 1 of the Act.

The next issue to be decided is whether the Respondent has discharged its obligation under the Act to show that such a dismissal was fair. The Respondent investigated the incident where the Complainant had an aggressive interaction with a colleague but decided that no disciplinary action was warranted and reinstated the Complainant back to his previous site, but on a different shift to the said colleague. However, there then came in quick succession a solicitor’s letter from the dissatisfied colleague citing health and safety issues and an email from the main contractor on site requesting that the Complainant would be removed from the site in question. It seems these communications directly led to the layoff of the Complainant. I am satisfied that the incident led to the termination of contract even though the Complainant was absolved of any wrongdoing in the investigation. It was not reasonable behaviour by the Respondent to tell a Complainant that there was to be no disciplinary action but to then have a change of mind and ostensibly lay off a worker, which, in effect, was an act of dismissal. Such an action is not that of a reasonable employer as demanded by section 7(a) of the Act. There was no evidence forwarded by the Respondent of proper procedures or meaningful engagement with the Complainant before the dismissal.

The evidence suggests that the Respondent did not engage meaningfully with the Complainant to find him alternative work within the company. The Respondent advertised online for security officers two days after the Complainant was purportedly laid off. The Respondent asserted that it lost a contract in one of its main sites in the local area, and therefore had no opening for the Complainant. However, the evidence presented by the Complainant of the Respondent’s online advertisements for security personnel at the time, negates such an argument.  

I have a certain amount of sympathy for the Respondent. I am satisfied that It considered the personal circumstances of the Complainant before deciding not to take disciplinary action after the reported incident of 8thNovember, 2019. Furthermore, the Respondent found itself in an unenviable position when the main contractor and the owner of the site requested that the Complainant should not be engaged on the site again. Nevertheless, the decision to terminate the employment of the Complainant in the manner the evidence suggests, leaves me with no reasonable option but to declare that that there were no substantial grounds justifying the dismissal of the Complainant from his employment. Having regard to all the circumstances, I find that the Complainant was unfairly dismissed.

Redress:

Section 7(2) of the Act deals with compensation and mitigation of loss.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal….

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Compensation is the Complainant’s chosen redress option, therefore consideration must be given to the efforts, if any, the Complainant made to mitigate his loss. Only one document was exhibited by the Complainant to show that he had applied for alternative work. The Respondent showed that this application was made on the 25th February 2020, the date of the hearing, in support of the argument that the Complainant was less than diligent in seeking alternative work. However, I conclude that he made repeated efforts to seek alternative work with the Respondent, when he was led to believe he was supposedly laid off, as distinct from being dismissed, by his employer. I am therefore satisfied that in such circumstances he has sought to mitigate his loss to some reasonable degree.

I must also consider the amount of contribution, if any, by the Complainant to the actual dismissal. The Respondent decided that no disciplinary sanction was imposed on the Complainant because of the incident on the 8th November 2019. I found that there was convincing evidence from the Respondent, in the main, that this decision was influenced greatly by the troubled personal circumstances of the Complainant, and that an alternative decision of a serious disciplinary sanction would have been made, if the Complaining had not presented such a case. This leads me to conclude that the behaviour of the Complainant on the day in question was unacceptable and led to a series of events that eventually ended in his dismissal. I therefore find that there was a significant element of contribution by the Complainant to his dismissal.

Having considered all the evidence and the conclusions reached above, I find that the Respondent should pay the Complainant a compensatory sum of €12,000.

Complaint seeking adjudication under the Payment of Wages Act,1991:

No evidence was furnished in relation to unlawful deductions or unpaid wages therefore the complaint is not well founded.

CA-00032681-001: Complaint seeking adjudication under section 8 of the Unfair Dismissals Act, 1977:

I find that the Complainant was unfairly dismissed, and I award him compensation of €12,000

CA-00032881-002: Complaint seeking adjudication under section 6 of the Payment of Wages Act, 1991:

I find that the Complaint was not well founded.

Unfair Dismissal, Lay-Off.