Complainant

Respondent

Parties

Michal  Ododziej

GGL Security

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00035493-001

29/03/2020

The complainant, Michal Ododziej was employed by GGL Security as a Security Guard and was assigned to work in that capacity at the premises of a GGL Security customer. His employment terminated on March 20th, 2020 and he complains that he was unfairly dismissed.

GGL Security provides a comprehensive suite of security services combined with the latest in technological solutions, an integral part of which includes a fully licensed national and international monitoring centre. GGL Security aims to ensure the Company has the workforce and expertise to provide a best-in-class security service to all its customers

      Upon commencing employment, the complainant completed an Induction Programme, where he was provided with a copy of the Company's Employee Handbook, including the company’s Grievance Procedure and Disciplinary Procedure

OnSeptember 6th,2018, he confirmed in writing that he had receivedandreadthem.

      On July 20th, 2019, the complainant was issued with a written warningregarding his unauthorised absence from work from June 22nd, 2019, toJuly 17th, 2019. He confirmed his understanding of the warning inwriting.

On November 24th, 2019, he was scheduled for work but did not turn up or make contact to advise that he was not reporting for work.

On November 26th, 2020, the respondent’s Area Manager, emailed the complainant advising that he had become aware that his Private Security Authority (PSA) licence had fallen out of date. He was also told that it was against PSA regulations to have a security officer attend work without a valid PSA licence.

Accordingly, he was told that he was being removed from the roster until he supplied a valid PSA licence.

On November 28th, 2020, the complainant was contacted again and told that he had still not provided a copy of his up-to-date PSA licence but told that there were work hours available to him if he did so.

The complainant responded on November 28th, 2019 (6.51 p.m.) saying; "As soon as I get it II send copy to Philip" (the Area Supervisor)

The Area Supervisor emailed the complainant on November 28th, 2020 requesting him to attend an investigation meeting on November 29th, 2019. The complainant responded, "As soon as I get licence I’ll send you a copy of it".

On January 6th, 2020, the complainant submitted an image of his PSA licence and the complainant was told that this met the requirement to be licenced by the PSA.

He was advised that he needed to attend an investigation meeting arising from his non-attendance at work on November 24th, 2019. The complainant had been asked to attend an investigation meeting on November 29th, 2019 but did not attend or send notification that he would not be attending.

On January 7th, 2020, the complainant was advised of an investigation meeting to take place on January 10th, 2020, to discuss his absence from work.

He did not attend the meeting on January 10th, 2020.

On January 13th, 2020, the complainant emailed asking if the contracted hours were available to him and to whom should he send welfare forms that he wished to have signed.

OnJanuary14th,2020, the Area Manager metthe complainant and on February 24th, the complainant was met as part oftheinvestigation.

The matters investigated were, failure to produce a renewed Private Security Authority licence, a customer complaint regarding interference with CCTV equipment, non-availability for rostering from November 24th, 2019, to January 16th, 2020, and failure to attend the meeting called for January 10th, 2020, and failure to advise of non-attendance.

      On completion of the investigation, the respondent Area Manager, wrote to the complainant advising that the investigation had found that his conduct had fallen below the standards expected of him and that the company considered the matter warranted disciplinary action,

He was told that, prior to deciding on what disciplinary actionmay be taken, a disciplinary meeting would be held with him on March 9th,2020.

He was informed that he would have the opportunity to put forward any mitigating circumstances that would be considered before any decision would be taken.

 On March 9th, 2020, a disciplinary meeting was held with the complainant, and he put forward mitigating circumstances for consideration by the company.

Following due consideration, the decision was made to terminate the complainant 's contract of employment.

On March 12th, 2020, the company wrote informing him that the necessary bond of trust had been broken and that a decision had been made to terminate his employment due to gross misconduct. He was informed in the letter of termination that he would be paid in lieu of his entitlement to minimum notice.

The letter of termination further stated that he had the right to appeal the decision.  He did not do so.

The complainant relies heavily on the fact that his licence expired on November 11th and that was the obvious reason that he could not work.

He says that he had been licensed and that the expiry was not his fault.

At the very least it provides mitigation for his non-attendance at work, and this was not fully taken into account.

He accepts that he did interfere with the CCTV camera at one of the locations as he did not wish to be filmed.

The facts are as set out above. The complainant allowed his PSA licence, a pre-requisite to continue working in his industry, to expire. Once the respondent became aware of his non-compliance with this requirement, they could not roster him for work.

In the background was a warning to the complainant arising from an unauthorised absence from work for approximately three weeks some months before these events.

The discovery of the complainant’s licence status followed two days after he had failed to present for work again.

There was an investigation meeting some days later and again in January another investigation meeting on the 10th, which the complainant did not attend, but did attend another on February 24th and the subject of that investigation is set out in the respondent’s submission.

This led to a disciplinary hearing on March 9th at which he faced the following alleged breaches.

Failure to produce a renewed Private Security Authority SA licence,

A customer complaintregarding interference with a CCTV camera,

Absenting from availability for rostering from November 24th, 2019, to January 16th, 2020, and,

Failure to attend the meeting called for January 10th, 2020 or advise of his non-attendance.

This resulted in the termination of the complainant’s employment.

The first and third items relate to the complainant’s licence status and are essentially the same charge.  His response to this at the hearing was that it had not been his fault. He claimed that he was licenced, but yet he failed, despite promising to do so, to produce the copy of the licence to his employer until January 6th.

Bear in mind that this was not simply a requirement of his employer but a matter of legal compliance with the requirements of a regulator; the Private Security Regulatory Authority, with which the respondent had to ensure compliance.

As noted, the complainant did eventually provide an image of the licence on January 6th.

He explained the interference with the CCTV camera on the basis that he regarded it as some sort of an intrusion on his privacy, which, having regard to the nature of his work is rather odd.

The complainant said the decision to dismiss was unfair because he was ‘not being heard properly’ by the respondent.

If so, it was not for the want of the opportunity to make his case. Between November and February several attempts were made to engage the complainant in an investigation, although the grounds changed in February.

At all stages the complainant was given adequate notice of what he faced at the investigation meetings, two of which he did not attend, and at the disciplinary hearing.

He did not appeal.

The legal position in relation to the jurisdiction of an adjudicator in such cases is well-established.

In Allied Irish Banks v. Purcell [2012] 23 ELR 189, Linnane J commented (at p. 4):

“Reference is made to the decision of the Court of Appeal in British Leyland UK Ltd v. Swift [1981] IRLR 91 and the following statement of Lord Denning MR at page 93:

‘The correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.’

This was confirmed by the decision of Noonan J. in the High Court case of Governor and Company of the Bank of Ireland v Reilly [2015] 26 ELR 229.   It has also been referred to with approval in the Supreme Court by O’Donnell J in Ruffley v Board of Management of St Anne’s School [2017] 2 IR at paragraph 41

In this case the respondent had regard to the complainant’s previous disciplinary record, the relatively serious issue (for a security operative, especially) of interfering with surveillance equipment, the PSA licence issue and the impact on its business of the complainant’s non-availability for work, and his poor co-operation with the process.

The documentary evidence showed that it fully respected fair procedure requirements.

The complainant’s submission that he was not listened simply translates into an expectation that the respondent should overlook the impact of his actions on the basis that it was not his fault.

There were no complicated submissions or pleadings made that would have been Michal Ododziej was employed by GGL Security as a Security Guard on September 8th, 2018, and worked as a Security Guard at the premises of a GGL Security customer.

 difficult for the respondent to grasp.

The respondent conducted a process that met all the requirements of being fair.

In assessing the significance of the complainant’s actions, both on their objective merits and in the context of the industry in which they operate I can find no basis for concluding that the respondent’s actions were unreasonable, or that the sanction fell outside the range which a reasonable employer would consider justified on these facts.

 Having regard to all of this the dismissal was fair.

For the reasons set out above Complaint CA-35493-001 is not upheld and the dismissal was fair.

Unfair Dismissal.