Complainant

Respondent

Parties

Philip  Evans

Interserve Security (First) Ltd First Security

Representatives

John Daly

Patricia Rooney Tughans

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035815-001

23/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035815-002

23/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00035815-003

23/04/2020

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

CA-00035815-004

23/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035815-005

23/04/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00035815-006

23/04/2020

The Complainant is alleging that he was penalised by way of dismissal after raising a grievance.

The Complainant withdrew CA00035815-04, 05 and 06.

The Complainant began working with the Respondent, Interserve Security (First) Limited in December 2015 as a security officer. He was dismissed for gross misconduct on 31 January 2020. On the 14 January 2020, following an alleged incident on the 6th and 7th January the Complainant was invited to attend an investigation meeting under the company disciplinary procedure. That was followed by a disciplinary hearing on 31 January 2020 and a disciplinary appeal hearing on 28 February 2020.

Throughout this disciplinary process the company alleged that the Complainant was sleeping at work on multiple occasions during a period of approximately 90 minutes during a 12-hour shift on 6 January 2020. That allegation was denied throughout the process. After the allegation was made the company requested that the Complainant continue to work nights for more than three weeks up until my disciplinary hearing on 31 January.

On 24 December 2019, two weeks prior to the alleged incident, the Complainant told the company via email that he had concerns about working on the night shift. He felt that it was having a detrimental effect on his health and well -being. He, at that juncture, had been working all nights for about two years. The Complainant expressed interest in applying to a day shift vacancy which had arisen. Initially he was told that he could not apply for the day shift vacancy. He was upset about that. He informed his manager that he intended to get legal advice on the point.  He was reported to management in Britain for seeking legal advice, but they incorrectly thought that he was contacting a solicitor about the health impact of shift working.

Previously, the Complainant had requested a “health assessments” for those on night shifts.

On 14 January the Complainant attended the investigation meeting and was shown CCTV footage. (This was 8 days after the alleged offences took place.) Philip Coyle conducted the investigation. The Complainant was not accompanied by anyone at the investigation nor was he told that he could be accompanied.

The minutes of the meeting were recorded by Ellie Waller (from HR) who was not physically present but who attended remotely. At one stage during the meeting she began to ask the Complainant questions. That threw him as he understood her role was just to take notes.

In advance of the disciplinary hearing planned for 31 January, The Complainant obtained an offer of security work elsewhere. He informed the Respondent of that and requested that the disciplinary process be halted so that he could depart from the company on good terms and get a reference.  The company did not accede to this request and insisted on going ahead with a disciplinary hearing. The video, relied on by the Respondent does not show the complainant’s eyes being closed, but even if they were this is not proof that he was asleep. The Complainant did not get an opportunity at the disciplinary hearing to question his supervisors Richard Miller or Philip Coyle about this. Following the hearing, where the Complainant decided to represent himself, he was dismissed with immediate effect.

The Respondent’s allegation that he was sleeping on the job on 6 January because he was aggrieved that he was unsuccessful in his application is untrue. The Complainant did not know of the outcome of the competition until the 9th January.  It is however true that the Complainant was feeling down and despondent because of the ongoing situation with his manager.

The Complainant believes that he was victimised and dismissed because he mentioned to Mr Philip Coyle that he was obtaining legal advice about a matter which he misunderstood to be about shift working but which was in fact about his application for a day shift vacancy. The Respondent mistakenly thought he had gone to a solicitor regarding their failure to address his right to an assessment of the impact of night shifts on my health as is required under Health and Safety legislation.

In the Complainant’s 4 years with the company he was never offered the opportunity to go to a doctor to assess the impact that working nights was having on his health.

His manager treated him unfairly when he originally informed him he couldn’t apply for the position. Thankfully, he was overruled by Mr. Bruce Abbott, a senior manager.

The entire disciplinary process, from the initial investigation onwards was biased, and it also gave no consideration to the impact working night shifts was having on the complainant’s health. Subsequent to Mr Coyle`s misunderstanding that his reference to legal advice was about shift working he received from his supervisor, a Health Surveillance form regarding night shift working. He had never received one of these before.

The Complainant also takes issue with the way the appeal hearing was conducted. His appeal hearing lasted less than 40 minutes. He had a brief note that he wanted to read into the record regarding the night-time regulations, but he was not allowed to do so and this note was subsequently sent to the chair of the hearing.

The Complainant was employed by the Respondent as a Security Officer from 14 December

2015. He worked at the premises of Deutsche Bank in Dublin. The written contract provided to him outlined his terms and conditions of employment.  He was also provided with the Employee handbook. He signed for that.  His contract of employment with the Respondent expressly stated:

“You are required to devote your full-time attention and abilities to your duties during working hours and to act in the best interests of the Company at all times.” In addition, it stated: “The Company reserves the right to terminate your employment without notice if it has reasonable grounds to believe you are guilty of gross misconduct or gross negligence.” It also stated: “If you have any grievance concerning your employment you should raise the matter in the first instance with your manager. If the grievance is not resolved at that stage, you should refer it to the Human Resources Department.”

The Respondent’s disciplinary policy applies to all employees. It provides confirmation that its primary purpose is to ensure employees maintain acceptable standards of conduct. It states:

“Excellent customer service, products and processes are vital to our business success but what really sets us apart is the quality of our people – their sense of responsibility and involvement, their commitment to teamwork, and their willingness to set the highest standards of conduct in all that they do.” It also outlines that in cases of ‘gross misconduct’ (including any breach of duty, and bringing the Respondent into serious disrepute), an individual may be dismissed without any previous warnings and without a payment in lieu of notice if deemed seriousness enough.

The Respondent provide security to Deutsche Bank. The Contract between the Respondent and the bank is an extremely robust one. As one would expect, the Bank are extremely strict on security and

engages Security Officers to act as a deterrent to intruders, and it expects all staff working at the Bank to be vigilant at all times. The Bank has very high expectations and expects the Respondent (as a relevant contractor) to manage its own employees to a similarly high standard. The Respondent’s contract with the Bank has a zero tolerance approach towards any staff sleeping whilst on duty (due to the assets that they help protect). Thus, the Respondent requires all of its employees to provide a high level of service at all times.

The relevant Health & Safety and Assignment Instructions / Procedures and risk assessments

are in place at the Bank, which all of the Respondent’s staff understand and comply with. The

Respondent provides its employees with a safe system and place of work, so as to ensure its

Employees’ safety, health and welfare at work as far as is reasonably practicable.

The Respondent takes any allegation of its employees sleeping whilst on duty extremely seriously. Over the last 5 years or so a number of the Respondent’s staff have been

dismissed for sleeping whilst on duty, and likewise the Bank would not expect such staff to be

engaged on the contract.

In early December 2019 the Complainant had made an enquiry about moving from the night shift to the day shift. The move wasn't feasible at the time of his enquiry. Soon after the situation changed, and the complainant was informed that he could apply for the position. He did apply and was interviewed on 27th December 2019. He was unsuccessful in his application because of his attendance /absentee record and also because some of the answers he provided were not up to the standards expected.

The incident.

The complainant had 4 days rest prior to commencing his shift on the 6th of January 2020. He arrived at his post at 18:47 hours and relieved the officer on duty. Between 19.41 hrs and 21.33hrs the Complainant was observed sleeping at the main reception desk. At one point the motion sensor lights went out due to lack of movement in the area. Mr Miller the shift supervisor called the Complainant on the reception desk phone, but he did not answer.  Mr Miller went over to reception and asked the complainant if he was feeling unwell, but he responded by saying 'no I'm just tired'. During the time the Complainant was asleep at the front desk the managing director of the bank was still present in the building. Despite Mr Miller speaking to the Complainant twice he fell back asleep once Mr Miller had left.

Furthermore, the Complainant was wearing a yellow jacket on duty which was not part of his uniform.

On 8th January 2020 the Complainant was invited to attend a formal fact-finding meeting on the 13th of January 2020. The allegations were outlined to him. The meeting was rearranged at the Complainants request to the 14th of January. In attendance was the complainant, Miss Ellie Waller from HR are and Mr Coyle the investigation officer. The Complainant was shown the CCTV and was given every opportunity to voice his side of the story. The Complainant denied that he was sleeping on duty.

Following the investigation meeting the matter was progressed to a disciplinary hearing. Mr Abbott was the disciplinary officer. On the 21st of January 2020 the complainant was invited to attend a disciplinary meeting on 31 January 2020. The Complainant was provided with a copy of the notes from the initial fact-finding meeting, the witness statements from the shift supervisor and a disciplinary policy.  He was also invited to bring a representative with him. Miss Waller from HR was in attendance to take notes. The Complainant was asked if he was happy to continue without representation and he confirmed that he was.

On 31 January 2020 the Complainant was verbally informed by Mr Abbott that he had been summarily dismissed. He was given a right to appeal. He appealed.

Mr Joe Wise, Security Account Director was appointed as the Appeals Officer. On 19th February 2020 he sent correspondence to the Complainant inviting him to attend a formal appeal hearing on the 28th of February 2020. He was again informed of his right to be accompanied by representative. Following the appeal process the complainants was informed in writing that his appeal was not successful.

I have carefully considered the evidence of the parties and their witnesses, the documentation and statements submitted.

CA-00035815-001 (Unfair Dismissal)

“The onus is on the employer to establish that there were substantial grounds justifying the dismissal and that it resulted wholly or mainly from one of the matters specified in s.6(4), which includes the conduct of the employee or that there were other substantial grounds justifying the dismissal. Section 6(7) makes clear that the court may have regard to the reasonableness of the employer's conduct in relation to the dismissal. That is however not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that of the employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned “Governor of Bank of Ireland v Reilly [2015] ELR 229.

The Complainant was observed to be sleeping whilst sitting at the Reception desk of the Respondent’s client’s bank. The Respondent had substantial CCTV of the Complainant taken over the period of 90 minutes period. The Respondent’s client’s zero tolerance policy on the issue is a reasonable one taking into consideration the type of institution the Respondent is engaged to keep secure. The allegations were clearly and unambiguously set out for the Complainant prior to the investigation process commencing. At every stage of the process he was informed of his right to be represented, was given an opportunity to voice his defence, was given all of the documentation relied on by the Respondent in the decision making process, and was given and did exercise his right of appeal. I can find no flaw in the process that could render it or the findings unfair. Taking into account the seriousness of the allegation, in conjunction with the Respondent onerous contractual obligations to their client, I find that the decision to dismiss the Complainant was well within the band of reasonableness.

The Complainant fails.  

CA-00035815-002 (Minimum Notice)

The Respondent accepted that it failed to pay to the complainant his notice payment. The complainant commenced working for the Respondent on the 03.02.2015 until the 31.01.2020.

S4.— (1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

( a) if the employee has been in the continuous service of his employer for less than two years, one week,

( b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks.

The complainant is entitled to two weeks’ notice amounting to € 1,123.20.

CA -00035815 -033 ( Penalisation)

The initial burden of proof is on the Complainant to establish a protected act and a detriment. If and only if the Complainant established a protected act and a detriment does the burden shift to the Respondent to put forward evidence that the detriment suffered was not due to the protected act being an operative cause. Toni & Guy Blackrock v. Paul O’Neill [2010] 21 E.L.R. 1  established that  the burden of proof is on a Complainant to establish that on the balance of probabilities (a) he committed a protected act, and (b) that having regard to the circumstances, it is apt to infer from subsequent events that the protected act was an operative consideration leading to the detriment imposed. The Labour Court held that if both limbs were satisfied, the burden shifted to the employer to show, on credible evidence, on the balance of probabilities, that the protected act did not influence the detriment imposed.

Section 27.

(1)         In this section “penalisation” includes any act or omission by an employer or a person acting  on behalf of an employer that affects, to his or her detriment, an employee with respect to any term or condition of his or her employment.

(2)         Without prejudice to the generality of subsection (1), penalisation includes—

a)           suspension, lay-off or dismissal (including a dismissal within the meaning of the Unfair Dismissals Acts 1977 to 2001), or the threat of suspension, lay-off or dismissal,

b)           demotion or loss of opportunity for promotion,

c)           transfer of duties, change of location of place of work, reduction in wages     or change in working hours,

d)           imposition of any discipline, reprimand or other penalty (including a  financial penalty), and

e)           coercion or intimidation.

The acts protected from penalisation are set out in s. 27(3)

“ An employer shall not penalise or threaten penalisation against an employee for—

(a)         acting in compliance with the relevant statutory provisions,

(b)         performing any duty or exercising any right under the relevant statutory provisions,

(c)          making a complaint or representation to his or her safety representative or employer or the Authority, as regards any matter relating to safety, health or welfare at work,

(d)         giving evidence in proceedings in respect of the enforcement of the relevant statutory provisions,

(e)         being a safety representative or an employee designated under section 11 or appointed under section 18 to perform functions under this Act, or

(f)          subject to subsection (6), in circumstances of danger which the employee reasonably believed to be serious and imminent and which he or she could not reasonably have been expected to avert, leaving (or proposing to leave) or, while the danger persisted, refusing to return to his or her place of work or any dangerous part of his or her place of work, or taking (or proposing to take) appropriate steps to protect himself or herself or other persons from the danger.

The scope of what can be a protected act is broad. The mere request for a copy of a bullying and harassment policy was sufficient for the Labour Court in In Board of Management of St. David’s CBS Secondary School Artane v. Siobhan McVeigh (HSD 118, 8th July 2011), to find that it a protected act.  It is also well established that an employee does not have to use the Respondent’s grievance procedure for their act to amount to a protected act. In Stobart Ireland Driver Services v. Carroll [2013] IEHC 581, a truck driver asked that he not to be rostered due to his fatigue. This act was held to be a protected act by the Labour Court and the High Court, on appeal. Kearns P. spoke to the broadness of the Act of 2005 by stating, at paragraph 26:-

“There is no requirement in the Act to report any complaint via a grievance procedure. The Act specifically states "report…as soon as practicable". Thus, the Respondent in this case can be deemed to have made his complaint when he reported that he was too tired to drive”

It is clear that the subject matter of a protected complaint or representation is not relevant to determination of claims pursuant to s. 27. In St. John's National School v Jacinta Akduman [2010] 21 E.L.R. 301, the Labour Court held that it was making no finding in relation to the veracity of the complaint of bullying, in making its determination pursuant to s. 27. 

The Complainant herein raised a concern with his manager by email on the 24th December 2019  in relation to the effect working on the nightshift was having on his health and wellbeing. He did so the context of applying for a position on the day shift and following a series of correspondence in relation to him applying for the day position.  The Complainant, as has been pointed out by the Respondent, did not use the Respondent’s grievance procedure to do this. As is set out above, there is no statutory or common law requirement to do so. The mere putting the Employer on notice of a health and safety concern is sufficient. In this particular case, the manner and context in which the complaint was made, did act to dilute it somewhat. However, I find that on the balance of probabilities, the complaint does in fact meet the threshold of a protected act.  

The Complainant alleges that the detriment suffered by him, as a result of the complaint, was that of a dismissal. Having carefully analysed the evidence both oral and documentary I can find no nexus between the protect act and the dismissal.  I find that the Complainant was dismissed due to the fact that he was sleeping on duty on the night of the 6th of January and for no other reason. Therefore, I conclude that the complaint must fail.

CA – 00035815 -01 The complaint fails.

CA -00035815 -02. The complaint is well founded. I award the Complainant two weeks’ notice amounting to € 1,123.20

CA -00035815 -03 – The Complaint fails.

Unfair Dismissal, Penalisation. Minimum Notice. Burden of Proof. Contractual duties.