LCR22337

1.Unfair Dismissal

BACKGROUND:

2.The Worker was employed by Elevare Security Services Limited (‘the Company’) as a security officer from September 2019. He worked on behalf of the Company at a client site in Sandyford, Co Dublin. The Worker was required to work between 36 to 48 hours per week on night shift and was paid €13.50 per hour.

He worked as part of a team of 6 security officers plus one supervisor at the site in question. The team members’ rest breaks were staggered throughout the course of their shift. The Worker received two 30-minute breaks per shift; one at 11.00 pm and the second at 4.00 am. He told Court that he was required to remain on the premises for the duration of his shift, including during his rest breaks although there was no dedicated room available in which he or his colleagues could take their breaks.

The event which precipitated the Worker’s dismissal occurred on 17 January 2020 when the Worker was some five months into his probationary period. The Worker told the Court that he sat on two chairs in a quiet area during his 4.00 am break on that date. He closed his eyes to rest and was observed and photographed by his supervisor doing so. The supervisor approached him and sent him home for allegedly sleeping during working time.

The Company did not attend the hearing.

On 04 March 2020, the Worker, referred this dispute to the Labour Court in accordance with Section 20(1) of the Industrial Relations Act, 1969 and agreed to be bound by the Court's Recommendation.

A Labour Court hearing took place on 02 December 2020.


WORKER'S ARGUMENTS:

The Worker received a telephone call the following morning from his supervisor who requested he return his badge, stating he (the Worker) was ‘no longer part of the team’. The Worker received an invitation by email later that day to attend a disciplinary meeting scheduled for the following Monday, 20 January 2020.

The disciplinary meeting took place as scheduled. The Worker’s recollection is that the meeting lasted approximately 10 minutes. The supervisor who had sent him home was present but the Worker was unaccompanied. He told the Court he was not afforded an opportunity to speak or to state his case. He was notified verbally at the conclusion of the meeting that he was being dismissed. He was subsequently paid one week’s notice pay.

 The Worker’s dismissal was confirmed by letter received one week later. That letter also advised the Worker of his right to appeal the Company’s decision to dismiss him. The Worker availed himself of the right of appeal. An appeal hearing, conducted by Mr Liam Casey, Director of Operations took place on 7 February 2020. The Worker told the Court that Mr Casey informed him that the law of the land made no provision for the application of disciplinary proceedings during a worker’s probationary period and, therefore, there was nothing he could do to reverse the decision to dismiss the Worker.

COMPANY'S ARGUMENTS:

The Company was not represented at the within hearing although they had been provided with full details in writing and in advance by the Court. Mr Casey sent a brief written ‘statement of facts’ by email to the Court which was received on 23 November 2020, approximately a week before the hearing took place in a virtual courtroom. Mr Casey advised that the purpose of the statement submitted to the Court was “to justify the fact that [the Worker] was terminated during his probationary period and was afforded natural justice and fair procedures in such regard”.




RECOMMENDATION:

While the Court has indeed taken note of the contents of Mr Casey’s email of 23 November 2020, that email amounts to little more than a mere assertion that the Worker was afforded natural justice in the course of the process that resulted in his dismissal. The Court was not presented with any copy correspondence or documentation that advised the Worker that the disciplinary process was being conducted in a manner that was consistent with the provisions of SI 146 of 2000 or that the Worker had been advised of his right, for example, to be accompanied at the dismissal hearing and the appeal hearing.

No justification was provided to the Court for the Company’s decision to impose the severe sanction of dismissal in circumstances where the Worker says he was merely resting during his scheduled 30-minute break
In all the circumstances, the Court finds that on the balance of probabilities the Worker was not afforded the benefit of a fair process conducted in accordance with the provisions of SI 146. Accordingly, the Court recommends compensation of €2,500.00 as just and equitable.
The Court so recommends.

	Signed on behalf of the Labour Court
	Alan Haugh
NJ	______________________
07 January 2021	Deputy Chairman