Complainant

Respondent

Anonymised Parties

A security guard

A provider of security services

Representatives

None

Management Support Services (Ireland) Ltd

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00034089-001

30/01/2020

The worker worked for the employer between the 9th July and 5th December 2019. He was employed as a security guard and paid €547.87 per week. He challenges the fairness of his dismissal. The employer asserts that the dismissal was fair and on the basis of performance concerns, including being asleep at work.

The worker outlined that he had recently completed his PhD. In respect of this employment, the worker outlined that he was dismissed without having the opportunity to defend himself. He said that fairness and transparency arise from the use of disciplinary rules and they should be a written process. He said that the employer should carry out an investigation to establish the facts and there should be a right of appeal.

The worker said that he had previously moved sites but rejected the employer’s contention that he was moved because of performance issues. He said that he was dismissed on the 5th December. This followed the events of the 19th November, which involved a named member of staff. They were based in a security hut, but the colleague insisted on touring the site alone. The colleague wanted the worker to tour the site on foot, and not to use the van. The worker complained about this to a supervisor who attended the site. The supervisor, however, said that the worker had not been locking internal doors, but did not say where he had learned this from.

The worker referred to his email of the 21st November 2019 where he accused the colleague of waging a ‘campaign’ against him following the above incident. There was no response to the email

The worker outlined that on the 4th December 2019, he was working at a different site. There were two entrances at this site, supervised by two security guards. Supervisors would attend the site and when they did, it was normal for them to contact the security guard on first the company phone and then their personal phone. It was normal for the supervisor to meet the security guard in person.

On this night, the supervisor had not contacted the worker, but had observed his side of the site on CCTV. The worker outlined that a senior manager of the client slept on the site at night and woke at 4am. This was the person seen by the supervisor, who had only gone to the other gate and viewed the CCTV. The supervisor did not check that the worker was okay and just left.

The worker outlined that he was then dismissed without investigation and without any process, in contravention of S.I. 146/2000. He emailed the employer on the 5th December to challenge the dismissal. He said that an employee must be informed of an allegation and the evidence against them and given the opportunity to rebut as well as the right to appeal. He said that he had never been issued with a letter of dismissal.

The worker said that he met the supervisor on the following day, the 5th December. The supervisor said that he could not contact the worker, who replied that he had received no call. There was no mention of CCTV at the meeting, but the supervisor told the worker he was dismissed. The worker then sent the email, to which there was no reply.

The worker said that he then made the assumption that he was still working for the employer. He had sought alternative employment but had not found anything. He said that he did not apply for another role in security. He had previously worked for three firms. He said that this was a shock and had an effect on him and his family.

The worker said that this was discrimination as he was not afforded fair procedures. Nothing was done to the colleague and what happened on the 4th December represented a change in practice.

In reply to the employer, the worker said that a supervisor who saw a security guard ‘not alert’ would not have walked away and could have asked the other security guard to call to the ‘not alert’ security guard or to get control to phone him. The worker said that he always received a response to emails in other roles. He said that there had been an incident in another site where he had not received a call as there was no coverage on part of his route. He had later met the supervisor to explain this. He said that no one mentioned any right of appeal at the meeting on the 5th December. The worker said that he asked the employer to contact the supervisor to check whether what they said about him was true, especially regarding locking the door. The complaints about his performance were only made after the incident with the colleague.

The employer outlined that the supervisor had spoken to the worker about clients asking that he be moved. It outlined that there was no agenda against the worker, but he was moved off two sites. It was not just the site where the incident with the colleague occurred.It submitted that the worker was on probation and full fair procedures does not apply. The employer is entitled to assess suitability. The employer outlined that clients had reported an inability to contact the worker, an issue the supervisor had spoken to him about. The worker did not raise any grievances about this.

In respect of the incident of the 4th December, the employer outlined that the supervisor had followed normal procedure. The supervisor had pressed the buzzer but there was no answer. It outlined that it was no automatic that the guard is phoned. The supervisor then went to the second entrance and checked the cameras. The supervisor saw the worker sitting in a chair and slumped asleep. The supervisor submitted a report setting this out. The worker was then requested to attend the meeting and told that he had been given a number of chances and was being let go. It outlined that the worker was offered the right to appeal.

The employer submitted that the worker had been given more than ample opportunity to address the issues raised. It submitted that there was no obligation to issue a letter of dismissal. In respect of the November 2019 email, the supervisor had told the colleague and the worker that neither was senior. It submitted that the worker should have brought to its attention any reference to his nationality. It was submitted that this email was in response to the worker being taken off one client, when he was then assigned to another site.

The employer outlined that while the worker’s appeal of the 5th December was addressed to the supervisor, it was not addressed to the person who could have heard the appeal. The control room had recorded the supervisor’s report and briefed the manager the following morning. The manager did not think that the supervisor could have been mistaken in what he saw.

In respect of the conversation of the 5th December 2019, the employer outlined that the worker was informed that this arose from a complaint regarding his performance. The worker denied the allegations made against him. The employer raised the other incidents and discussed these in the round. They touched on the incident of the 4th December and the employer had the control room and supervisor’s side. The employer also had regard to the other incidents in reaching its decision. It submitted that it did not dismiss security officers lightly but there were several issues regarding the worker’s work ethic. It pointed out that it lost the investment in training when it removed them from a site. It also submitted that the worker could have easily found other security work.

In reply to the worker, the employer outlined that the worker had been placed at a named site between the 20th July to the 22nd October. He was moved to the large site between the 27th October and the 21st November and then to the last site from the 23rd November to 5th December. It outlined that the code provides that any grievance should be raised with the supervisor.

The employer outlines that the worker was dismissed because of repeated performance issues. This came to a head on the 4th December 2019, when the worker was said not to be ‘alert on the job’, which was clarified as being asleep while at work. The worker denies this allegation and disputes that there were any performance issues.

In deciding whether the worker was treated fairly, it is important to note that none of the performance issues were raised in writing. One would expect to see written accounts of the various alleged performance issues. This especially applies to the issue of the 4th December 2019, which was readily put in writing. A supervisor phoned into control room that he thought the worker was asleep and this was observable on CCTV. However, there was no documentary evidence to support the employer’s contentions, despite the worker explicitly asking for such supporting documentation.

I find that the worker was not treated fairly, in particular in respect of his dismissal. The merits of the dispute warrant a recommendation in his favour. In deciding the terms of the recommendation, I note the employer’s point in respect of mitigation. Taking account of all the circumstances, I recommend that the employer pay the worker €2,000 as compensation for the unfairness.

CA-00034089-001

I recommend that the employer pay the worker €2,000 in resolution of this dispute.

Industrial Relations Act / fair procedures