Worker

Employer

Anonymised Parties

A Security Guard

A Supermarket

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00044435-001

01/06/2021

This is a dispute relating to the dismissal of a security guard while on probation.   The worker submits that she was dismissed following an incident where she and the store manager had escorted a customer from the shop believing her to be under the influence of alcohol as she was unsteady on her feet.   The customer and her family later alleged that the customer was not under the influence of alcohol but that she has a disability.  The employer submits that the worker was dismissed as they were cutting back on wage overheads in the shop.   The worker submits that she was dismissed due to the incident with the customer and following pressure from the customers family via social media.   The worker submits that no procedures were followed. 

The worker submits that she was unfairly dismissed following an incident where she had been admonished by the store owner for escorting a customer from the shop having concluded that the customer was under the influence of alcohol.  It later transpired that the family of the customer had alleged that the customers behaviour was due to a disability and that she had not been under the influence of alcohol.  The family of the customer publicly criticised the store and its management following the incident and it was publicised widely on social media.

The worker advised that she had observed the customer on CCTV camera appearing to be under the influence of alcohol, she stated that she was swaying, unsteady on her feet, and leaning against shelves. She dropped her bag and nearly fell over trying to pick it up. The worker having witnessed this considered it to be  a health and safety issue and made the decision to involve the store manager and they had both approached the woman while it was explained to the woman that she could not be in the store if she was under the influence of alcohol, the customer in question was escorted out of the store.

Later that day a member of the customers family came into the store and was very annoyed and approached the worker shouting at her that the customer had not been under the influence of alcohol but had a disability which explained her actions this person had threatened to contact her solicitor about the matter.  Later that day another family member came into the shop and again shouted at the worker referring to the incident.

That evening a text issued from the employer stating that an apology would have to issue to the family of the customer.   A separate individual text issued to the worker stating that she was to attend a meeting the next day to discuss the matter with the shop owner.

At this meeting, the employer told the worker that the matter was all over social media claiming that the customer was discriminated against on grounds of disability.  The worker submits that the owner shouted at her stating that she should not have ‘frog marched’ a disabled woman off the premises.  He then told her to go home while he had a think about whether she was competent to work in the store.  The worker stated that another meeting was arranged for the next day.

Prior to attending the second meeting the worker  was infromed by a colleague that the customer and members of her family had been called to a meeting in the store where an apology was issued along with a voucher and where they were infromed that the staff member in question had been ‘dealt with’.   The worker states that the customers family had posted this on face book and so everyone knew the worker had been dealt with before she herself knew about it.  The worker states that she was defamed on social media as a result of the incident with the customer and that her employer used her as a scapegoat.

The worker attended the second meeting with her employer where she was advised that her contract was being terminated immediately.  The reason given was that the store was cutting back on wage overheads in the shop.  The worker disputes this and states that she was aware that she had been ‘dealt with’ before attending this meeting due to Face book posts from the family of the customer.  The worker states that her dismissal was a direct result of this incident.

The worker stated that her job was re advertised shortly afterwards thus proving that the reason given was not valid.

The employer submits that the worker was employed by them for circa 4 months.   The employer submits that as per the terms of her contract of employment and handbook they reserve the right to terminate any staff members employment during their probationary period and chose to exercise this right in the present case.    

The employer submits that the worker  cannot claim unfair dismissal when they have been in their position for less than a year - except under certain circumstances, which they believe do not apply here .

The employer submits  that the incident with the customer just happened to coincide with their decision to cut back on security in the shop.

The employer at the hearing stated that he was 99 % sure that they had not advertised for a security guard in the time period mentioned by the worker.  

In conducting my investigation, I have taken into account all relevant submissions both written and oral presented to me by the parties.

This dispute relates to a dismissal which took place during the workers probationary period.

The employer asserts that it was entitled to dismiss the worker at any stage during the probationary period.   The worker asserts that her dismissal was the direct result of an incident where she had been responsible for a customer being removed from the premises as she had concluded that  the customer was under the influence of alcohol while in the store.   Following the customer being escorted from the premises the family of the customer publicised the incident via  social media and asserted that the customer had been discriminated against by the security guard.  The worker advised the hearing that several people had posted comments and that she had been easily identified from the detail given in the posts.   The worker stated that the posts stated that the store had allegedly apologised to the family of the customer and given them a voucher in compensation for the incident and had also advised them that the employee in question had been ‘dealt with’.  The worker stated that she had become aware of all of this before being dismissed from her job.

The employer states that the workers  dismissal during the probationary period was unrelated to the incident and was not a disciplinary matter.  The employer also asserted that it no longer required the services of the worker as a previous employee had returned to work.  The worker submitted that her position was re advertised 2 months after her dismissal and provided evidence of this to the hearing.  The employer at the hearing stated that they were almost sure they had not re advertised for the position at that time.

The employer stated that it is entitled to dismiss a worker during the probationary period for any reason save where the dismissal results from a disciplinary matter.  I am satisfied from the evidence adduced that the worker in this case was dismissed due to the incident involving the customer and that this was considered a disciplinary matter.  I am also satisfied that where the employer considered there was a disciplinary matter any such disciplinary procedure would have had to follow the provisions of S.I 146 of 2000.     

By denying that the dismissal was related to the incident the employer is seeking to avoid any disciplinary procedures, however it is clear to me that  given the circumstances the worker should have been infromed what procedures were going to be followed. The worker should also have been invited to a disciplinary meeting, given the reason for the meeting and allowed the opportunity to bring someone with her to the meeting.    At the meeting she should have been advised of the disciplinary matter and been given an opportunity to respond before a decision was made.  None of this happened and accordingly, I conclude the worker was unfairly dismissed, within the confines of the dispute taken under the Industrial Relations Act.  

The worker at the hearing detailed how she had been badly affected by the dismissal and also by the negative comments from all of those who had commented on the incident with the customer on social media.   While I accept that the negative comments on social media did adversely affect the worker,  such comments and their consequences were not within the control of the employer.    Having said that, dismissal from employment is a traumatic experience in itself for any worker and the circumstances surrounding such dismissal can cause reputational damage.    This trauma is exacerbated when fair procedures are not followed.  

For the reasons outlined above I conclude that the dismissal was unfair and I recommend in favour of the worker.

I recommend the employer pay the worker compensation of €2,500 in recognition of the distress caused by the manner of her dismissal.