ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028235
Parties:
| Complainant | Respondent |
Anonymised Parties | A Security Officer | A Security Company |
Representatives | Self- Represented | Rory Treanor BL for Peninsula |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00036226-001 | 18/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00036226-002 | 18/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00036226-003 | 18/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00036226-004 | 18/05/2020 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00036226-005 | 18/05/2020 |
Date of Adjudication Hearing: 15/09/2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 ;Section 8 of the Unfair Dismissals Acts, 1977 – 2015; Section 27 of the Organisation of Working Time Act, 1997 and Section 12 of the Minimum Notice & Terms of Employment Act, 1973 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The issues in contention concerned the alleged Unfair Dismissal of a Security Officer by a Security Company with related Sunday Working and Minimum Notice complaints. The employment began on the 27th of May 2017 and ended on the 31st March 2020. The Complainant was employed as a Security officer at a large Educational Site in Dublin. |
1: Adjudicator Summary of Complainant’s Case: (The Complainant made a Verbal submission to the Hearing.)
1:1 CA- 00036226-002 - Unfair Dismissals Act, 1977 Complaint
The Complainant alleged that the matters at issue could easily been resolved by direct discussions between himself and the Respondent Managing Director – Mr.XA. This direct approach between a loyal worker and his Boss was how matters should have been done in a man to man fashion.
Instead the Respondent had introduced an outside HR Consultant to address the issues. The Consultant clearly did not understand the Respondent working culture at the site in question. He attempted to play verbal tricks and games with the Complainant at the Disciplinary hearing to such an extent that the Complainant had to, out of simple frustration, leave the meeting.
Allegations from junior colleagues were accepted unchallenged and the CCTV record was manipulated against him.
The Complainant had asked to return to full time hours, but this was refused. The Respondent failed to honour their commitments to a loyal worker. He was effectively forced out by not being rostered for any work.
1:2 Other complaints.
Act | Complaint/Dispute Reference No. | Summary Complaint |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00036226-001 | Complainant did not receive Sunday Pay. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00036226-003 | Correct Legal Minimum Notice was not paid. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00036226-004 | Complainant did not receive his Legal Rights during the Notice Period. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00036226-005 | Withdrawn - not applicable to an employee. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00036226-002 | See Section 1.1 above. |
2: Adjudicator Summary of Respondent’s Case: (The Respondent made a Written submission and a supporting Verbal presentation to the Hearing.)
2:1 CA- 00036226-002 - Unfair Dismissals Act, 1977 Complaint By way of background the Complainant has been employed as a full time Security Officer from the 27th May 2017 until the 6th November 2019 when he requested a transfer to part time hours. This was agreed to by the Respondent. A replacement officer was deployed to cover the shifts no longer being covered by the Complainant. The Complainant subsequently requested a return to full time hours but as a replacement was now employed this was not immediately possible until a full-time position became available again. On the 5th February 2020 a major Customer informed the Respondent that a Security Alarm had been activated on their premises on the 2nd February. The correct Alarm procedure was not followed as the Officer in the control room was not properly trained in this duty. The Complainant was rostered for Duty on the 2nd from 08:00 to 20:00 and was fully competent in all Alarm procedures. The Respondent was surprised at the Alarm procedure lapse and began an internal investigation. Interviews were carried out with other staff members. A preliminary informal meeting was held on the 19th February at which the Complainant agreed that he was “off-site” from 14:00 to 15:00. He denied being “off” the site, all day, from 09.30 on the 2nd. The Investigating manager was Mr. Xb. who in a normal routine visit up called to the site on the 23rd February at 20:00 hrs to discover, to his surprise, that the Complainant was absent despite being rostered until 22:00 hrs. A further investigation meeting with the Complainant was held by Manger Mr. Xd on the 25th February. At this meeting the Complainant agreed that he had been Off Site from 09:30 on the 2nd February and had also been Off Site from 20:00 on the 23rd February. It appeared that the Complainant was paying colleagues to cover his hours without seeking permission from management for his absences. It was a completely unorthodox situation and the Respondent would have had a major issue with the absences and the unofficial payment to colleagues.
On the 27th February the Client Company instructed the Respondent to remove the Complainant from their Site as they were very concerned with the Security / H & S risks posed by the Complainant’s actions. The Complainant was notified on the 28th February on his withdrawal from the major site, Site A and offered work on an alternative site, Site B. The Complainant declined Site B as he felt that he was not trained for this site and it was “too far away”. A position on Site C was then offered but was also declined. The Respondent then appointed an Independent Consultant Mr. Xz, to carry out a full Disciplinary Hearing. It was felt that the Respondent managers were too closely involved in the Investigation to be sufficiently impartial. A Hearing was arranged for the 13th March which the Complainant did not attend and then rearranged for the 19th March. At this meeting the Complainant admitted that he had paid colleagues to cover for him for 5.25 hours on the 2nd February and again on the 23rd February. The Complainant challenged the presence /legitimacy of the Consultant in what he felt was an Internal Company matter and was quite uncooperative during the Hearing,
The Consultant felt the behaviour of the Complainant regard his Shifts and Absences was completely unacceptable, was Gross Misconduct and recommend that he be dismissed. Letter of the 20th March refers. An Appeal to Mr XA, the Managing Director of the Company, against this dismissal decision was offered to the Complainant. He declined to make any Appeal against his dismissal.
The Respondent Legal Advisor summarised their case as one where all proper Employment procedures were followed. A full Internal investigation and subsequent Disciplinary Process by an Independent Consultant had taken place.
Dismissal for Gross Misconduct was the only reasonable Employer option in this case. It was also noted that the offer of an Appeal had not been taken up by the Complainant.
Extensive Oral evidence was given by the Respondent Managers and the HR Consultant involved. Cross examination by the Complainant was allowed and took place.
2:2 CA -00036226-001 Section 27 of the Organisation of Working Time Act, 1997 / Sunday Pay The Respondent pointed out that the Complainant’s Contract of Employment expressly provided for Sunday Work. His hourly rate was €11.80 while the JLC rate from SI 231/2017 was € 11.65. The Contract stated that
“your basic reward package for this role will be a composite rate which will include all allowances of € 11.80 per hour (Monday to Sunday inclusive”
The Respondent pointed to a line of Legal precedents and in particular the recent High Court case of Trinity Leisure Holdings v Kolenisk and Alfimova where Binchy J held that a contact of the nature evidenced here was sufficient, they contended, to discharge all legal obligation regarding Sunday pay.
Furthermore, the Complainant only raised the Sunday pay issue at the Disciplinary hearing and has failed to support his allegations with any concrete facts. The Respondent again referred to the Trinity Leisure case where Mr. Justice Binchy referred to the need for an employee to produce “Credible evidence” of a transgression.
2:3 CA -00036226-003 Section 12 of the Minimum Notice & Terms of Employment Act, 1973 Minimum Notice
In summary the Respondent argued that as the Complainant was Dismissed for Gross Misconduct he did not have an entitlement to Minimum Notice. A considerable body of Legal percent was cited in support of the Respondent’s case.
2:4 CA -00036226-004 Section 12 of the Minimum Notice & Terms of Employment Act, 1973 – Employee did not receive his Rights during the Statutory Notice Period. The Respondent referred to Section 8 of the Minimum Notice & Terms of Employment Act, 1973 which states “Nothing in this Act shall affect the right of any employer or employee to terminate a contract of employment without notice because of misconduct by the other party.” As set out inCA -00036226-003 above the Dismissal was for Gross Misconduct and notice did not apply. Accordingly, the complaint could not be deemed to be of good standing and has to be dismissed.
2:5 CA -00036226-005 Section 12 of the Minimum Notice & Terms of Employment Act, 1973
This Complaint was withdrawn by the Parties as not applicable to an Employee.
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3:Findings and Conclusions:
3:1 CA- 00036226-002 - Unfair Dismissals Act, 1977 complaint. The relevant Law is the Unfair Dismissals Act,1977 supported by SI 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures together with a considerable body of Legal precedents. Taking all the Legislation and Legal precedents into account the guiding principle has to be that of Natural Justice. In Frizelle v New Ross Credit Union Ltd, [ 1997] IEHC 137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment for misconduct: “1. The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant. 2. Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion. 3. The employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment. 4. The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered. 5. The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee. Put very simply, principles of natural justice must be unequivocally applied.”
SI 146 of 2000 –Code of Practice on Grievance and Disciplinary Procedures has codified these Natural Justice principles into a set of guidelines. 3:2 The Role of the Adjudicator There is extensive legal Authority regarding the principle that a Tribunal or the Adjudicator is not to substitute themselves for an Employer and effectively engage in a de facto re-running of a Disciplinary case. The cases of Foley v Post Office [2000] ICR 1283 was referenced in the Irish High Court by McGovern J in the case of Doyle v Asilo Commercial Limited [2008] IEHC 445 “It is not the function of the Courts to substitute itself for the employer and to make its own decision on the merits of the employer’s decision to dismiss. As Mumery LJ stated in Foley v The Post Office at page 1295: “The employer, not the tribunal is the proper person to conduct the investigation into alleged misconduct. The function of the tribunal is to decide whether that investigation is reasonable in the circumstances and whether the decision to dismiss, in the light of the results of that investigation, is a reasonable response.” The point is developed further in the Court of Appeal decision in the Iceland Frozen Foods v Jones [1983] ICR 17 where the “Band of Reasonableness” principle was set out and elaborated upon at length. In plain language this means that a Dismissal decision cannot be arbitrary but has to be one that a “Reasonable” Employer in a similar situation might take. Accordingly, in the case in hand the key question is whether or not natural justice was followed in all procedural matters and the ultimate decision to dismiss was in the “Band of Reasonableness”. 3:3 Review of the Evidence both written and Oral. Extensive written evidence was presented by the Respondent and supported by considerable witness evidence at the Oral hearing. Although not legally represented a full cross examination of the Respondent evidence and witnesses took place by the Complainant. Likewise, the oral evidence of the Complainant was examined by the Respondent’s representative. Having listen to all the oral evidence and carefully read all the documentation and extensive employment procedures I came to the view that a full and fair process had been followed up to and including the offer of a Final Appeals stage. The Dismissal Letter of the 20th March 2020 was comprehensive and detailed. The allegations from the Complainant that the Independent HR Consultant, Mr Xz, was not sufficiently independent and his Disciplinary meeting on the 19th March was a predetermined exercise I examined closely. I directly questioned Mr. Xz on his background and experience in these types of matters. I was satisfied that the Complainant’s allegations of bias by the Consultant had no real merit. In Oral evidence the Complainant admitted that he had gone off site on the 2nd February and the 23rd February 2020. He had unofficially paid his colleagues to cover his work. It was his case that this type of “Flexibility” among colleagues was part of the “culture” of the work. The matters could easily have been resolved, he argued if he had been given a proper chance to have a direct “man to man” with the Company owner. The Respondents pointed out that the Final Appeal was to the Managing Director, the very person the Complainant wanted to have a “man to man” with. Legal precedent is very strong on the point that the major onus is on an employee to exhaust all internal procedures in a Dismissal case. In addition, I found it strange that the Complainant had refused two Respondent offers of alternative Sites, B & C, following his removal from Site A. His reasoning for these refusals was most unclear. The Complainant had no realistic answer to the question raised as to why he had not availed of the opportunity to have an Appeal heard. In summary I could find no Respondent faults under the Natural Justice or SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures headings such as to justify a complaint of Unfair Dismissal. 3:4 The Dismissal Decision and the “Band of Reasonableness”. Regarding the decision to dismiss as opposed to a range of alternative lesser penalties I listened to the arguments of the Respondents that a major breach of trust had taken place and had been openly admitted to. They were a reputable Security Company and the highest standards of trust and responsibility had to apply to Security Officers. A major Client Company had expressed gave disquiet over the actions of the Complainant which could lead to severe commercial reputational damage. The dismissal may well have been, understandably, most upsetting to the Complainant but as Adjudicator, I had to come to the view that it fell in the “Band of Reasonableness” for an employer in a similar situation or industry. Accordingly, I did not find the Dismissal for Gross Misconduct unfair and the claim falls. 3:5 CA -00036226-001 Section 27 of the Organisation of Working Time Act, 1997 / Sunday Pay On the basis of the Respondent evidence, legal arguments and the lack of any Complainant counter evidence or arguments I found this complaint Not Well Founded and set it aside. 3:6 CA -00036226-003 Section 12 of the Minimum Notice & Terms of Employment Act, 1973 Minimum Notice As the Dismissal was found to be fair on the grounds of Gross Misconduct this Complaint is deemed to be Not Well Founded. Section 8 of the Minimum Notice & Terms of Employment Act, 1973 applies.
3:7 CA -00036226-004 Section 12 of the Minimum Notice & Terms of Employment Act, 1973 – Employee did not receive his Rights during the Statutory Notice Period As the Dismissal was found to be fair on the grounds of Gross Misconduct this Complaint is deemed to be Not Well Founded. Again Section 8 of the Minimum Notice & Terms of Employment Act, 1973 applies.
3:8 CA -00036226-005 Section 12 of the Minimum Notice & Terms of Employment Act, 1973 This Complaint was withdrawn by the Parties as not applicable to an Employee.
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4: Decision:
Section 41 of the Workplace Relations Act 2015;Section 8 of the Unfair Dismissals Acts, 1977 – 2015; Section 27 of the Organisation of Working Time Act, 1997 and Section 12 of the Minimum Notice & Terms of Employment Act, 1973 require that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
4:1 CA-00036226-001
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997
Complaint is not Well Founded.
4:2 CA-00036226-002
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Dismissal is deemed not to have been Unfair. The Dismissal was Fair.
4:3 CA-00036226-003
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
Complaint is Not Well Founded.
4:4 CA-00036226-004
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
Complaint is Not Well Founded
4:5 CA-00036226-005
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973
Complaint withdrawn. Not applicable to an Employee.
Dated: 10th November 2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
Key Words:
Unfair Dismissal, Natural Justice, Minimum Notice, Sunday Pay. |