Complainant

Respondent

Parties

Jaroslaw  Lukasiewicz

K-tech Security Unlimited Company

Representatives

E.M. O'Hanrahan Solicitors

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-00034528-001

07/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034528-002

07/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034528-003

07/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034528-004

07/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034528-005

07/02/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00034528-006

07/02/2020

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

CA-00034528-008

07/02/2020

The complainant, a security guard, was dismissed after falling asleep on duty. He claims that he was unfairly dismissed.

K-Tech Security is a family run business employing approximately ninety staff, founded in 1996.  David McGarry is the Commercial Director, and his brother Ian is the Operations Manager.  

The complainant was employed as a Security Guard in August 2017.

In December 2019 he was assigned as the sole guard to a housing estate at a location in County Offaly and was responsible for several million euros in client assets. On site he was assigned to one of the houses in the estate which was heated, furnished, and had a full kitchen.

On Tuesday, December 10th, 2019, one of the respondent managers discovered the complainant had been asleep on duty, absent from his post, out of uniform and not wearing his P.S.A. ID badge. The manager sent him home and wrote a report of the incident.

He was contacted and invited to attend an investigation meeting the following day. Minutes of that meeting were submitted. In the meeting the complainant confirmed he was asleep on duty, not at his post and not wearing his P.S.A. ID badge. All of these are serious breaches of discipline.

The next step was a disciplinary hearing, and he was invited to one on December 16th, 2019. He declined representation, apologised for his behaviour, and confirmed the statements he had given to to the investigation.

Given the serious nature of the breaches the respondent could have no trust that the complainant would not repeat the behaviour the next time he was rostered for lone night working.

The decision was taken to terminate his employment. Hewasgiven the right to appeal, and an experienced independent HR Consultant was appointedtoheartheappeal.

In this letter of appeal, the complainant denied he had not displayed his badge and blamed his being asleep on duty on not receiving a bonus. The Decision Maker did not accept these excuses and upheld the termination.

The Unfair Dismissals Act states that a dismissal is not unfair if it results from the conduct of the employee. The complainant’s conduct is the sole reason for his dismissal.

The respondent is a small business that relies to a great extent on our relationships, built up over many years with clients. The trust of clients is essential to both brand and business. There can, in my view, be no greater breach of trust than a guard sleeping on duty while responsible for the security of a site.

The fact that the complainant was asleep on duty was not denied. He had brought his own chair to work. Nor did he deny that he was not at his post. The control room had called him five times; calls that he did not answer.

It was out of concern for the complainant’s health and safety that the manager was prompted to go to the site.

If there had been an incident, such as a fire or a break in etc. it could have been disastrous for all concerned, and specifically if the client had arrived and found the security guard asleep the relationship between the company and the client would have been destroyed.

The complainant was treated fairly in the disciplinary process. He was informed what the process was, why it was taking place, what the result could be and told he had a right to bring a representative.

The independent expert hearing the appeal is a former member of the Employment Appeals Tribunal and he had full authorisation to overrule the decision to dismiss. He did not feel that there were grounds to do so.

The company had no alternative other than to dismiss the complainant for his own conduct.

The complainant has accepted he was asleep was asleep but seeks to excuse this by reference to excessive working hours. He did not bring this up at the time and never told the company that there was an issue with his working his hours.

Regarding Minimum Notice even though the complainant was dismissed for gross misconduct and was not entitled to notice pay he was paid one week’s notice pay.

As a security guard the complainant received compensatory rest breaks in line with the Act. The days on which he was rostered where requested by him to allow longer periods of time off to spend with his partner.

While the complainant unfortunately fell asleep at work there is a context to this, of which the employer has failed to take account.

The complainant worked very long, twelve hour shifts which also varied from time to time and these variations had an impact on his sleep rhythm and left him exhausted and ‘jet lagged’.

As soon as the sleeping incident came to light the employee immediately apologised to his employer and accepted responsibility for having fallen asleep. However, his explanations appear not to have been taken into account.

The respondent created the working conditions which caused the ‘jetlag’ but has accepted no responsibility for this. The conditions of employment to which the employee was subjected were unlawful and in breach of his working time statutory sights, and caused the employee to be pre-disposed to falling asleep at work.

It is submitted that it was unfair and unreasonable for the employer to subject the employee to any kind of punitive sanction for involuntary conduct to which their breach of the employee's statutory rights had contributed.

In that regard, compliance with the Organisation of Working Times Act is crucially an issue.

The employer's description of this as gross misconduct is excessive, and is clearly unreasonable, especially as the employee had an impeccable history with no record of misconduct up to that point, which has not been disputed.

It is requested that the Adjudication Officer declare that the complainant has been unfairly dismissed and to award reasonable redress.

Note that the employer has failed to provide details of a written disciplinary process, none is contained in the personnel file disclosed under GPDR.  It is not clear that the employee was provided with any such procedure or that any such procedure which is yet to be disclosed was ever followed.

In the context, falling asleep at work in these specific circumstances, was involuntary, and wasinevitableduetotheworkingsystemsetupandcreatedbytheemployer.

It was not misconduct and was certainly not gross misconduct to fall asleep at work in these circumstances. The employee was given no credit for taking responsibility and making full admissions.

No regard was had for his impeccable work history. Whilst it is contended that it was not misconduct to fall asleep, the employer had an option to impose a lesser sanction and dismissal for gross misconduct was excessive, and no reasonable employer could have taken this course of action.

Regarding the other complaints CA’s 34528-0022, -004 and -005 are not being pursued and are withdrawn, leaving CA’s 34528-003 (Organisation of Working Time Act, breaks) -006 (OWT night working) and -008 minimum notice.

The complainant says that he did not receive breaks whilst in the course of his employment. (CA 34528-0030).

In other words, he was not assigned a period of fifteen minutes within four and a half hours of commencing employment or a period of thirty minutes within six hours of commencing employment in which have a break. Clearly, where he is alleged to have fallen asleep at work, no consideration was given to the possibility that this may have been detected during a break.

There were no rosters or assignments of breaks. The employee was working the entirety of his shift and was required to be available to his employer for the entirety of his shift. There were not breaks. The Act was breached on each day when the employee worked, please see time sheets.

The complainant has worked seven or more consecutive days on a number of occasions of which details were given.  This is a breach of the Act.

Regarding CA-34528-006: night hourss16 of the Organisation of Working Times Act, 1997, applies.

The complainant was clearly a ‘night worker’ but the bundle of GDPR material provided by the employer suggests that the employer did not carry out any risk assessment as required by section 28(1) of the Safety, Health, and Welfare at Work Act, 1989. It is suggested that had they done so, the employee herein would have been recognised as a “special category night work.

In summary, it is disputed that there was gross misconduct by any reasonable interpretation on the part of the employee in all the circumstances, and particularly in the context of the culpability and unlawful conduct of the employer in terms of breaching the employee's minimum statutory entitlements regard to working times.

There are a number of complaints in this case.

Turning to the unfair dismissal first, the facts in the case are as set out above and are not in dispute.

There are three key pillars involved in an assessment of the fairness of a dismissal.

In order for a dismissal to be fair there must be some significant grounds to justify disciplinary proceedings or other actions against the employee related to performance or conduct.

In this case it is accepted that the complainant, a security guard fell asleep at work and some other breaches of his duty occurred. He has offered an explanation to mitigate this which was rejected by the respondent.

The onus under the Act falls on the employer to justify the dismissal.

Secondly, in our employment rights system there are well established procedural obligations placed on an employer who is carrying out disciplinary action in order to protect the rights of the employee and ensure that justice is done.

These are not particularly onerous and are generally well known. They are referred to by such terms as fair procedure and natural, or constitutional justice.

Many, if not most cases coming before an Adjudicator are argued on the basis of facts that are generally not in dispute and the outcome normally turns on how well the procedures were carried out and/or the appropriateness of the sanction.

In this case, no significant, or at least convincing argument has been advanced about defects in the procedure.

The conduct of the process by the respondent is not just a matter of whether the complainant’s rights were respected but additionally, whether its conclusions are reliable.

Which leads one to the final pillar; the sanction.

In this regard, the Adjudicator will in general apply not their own view as to the gravity or otherwise of the complainant’s conduct but, in addition to the procedural aspect of the case will consider whether the sanction lies within a range of what might be considered reasonable; the ‘band of reasonable responses’, as it is often described, having regard to the nature of the respondent’s business activity.

The jurisprudence on this is to be found in Allied Irish Banks v. Purcell [2012] 23 ELR 189, where 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.

The facts alleged against the complainant were fully investigated and substantially established and this was followed by a disciplinary hearing and an independent appeal. I can find no basis for impugning the conduct of the process, nor indeed, in general did the complainant, whose submissions were concentrated on the area of mitigation.

There was some concern about the decision of the disciplinary hearing being transmitted by the person who conducted the investigation, although it was not he who had not heard or decided the disciplinary outcome.

This is not ideal but it was a purely administrative act that had no bearing on the process. The decision had been made by that stage, and this does not represent an ‘involvement’ in the disciplinary process, as submitted by the complainant. In a small business it is not always possible to have clinical separation of all processes

Even leaving aside for a moment the AIB v Purcell line of authority the suggested mitigation was without merit. The alleged long and varied shifts were not unusual for the industry, and there was no perceptible relationship between variation in shifts and the incident giving rise to the termination. The complainant had never raised any objection to, or sought any variation of his shifts.

Then, turning to look at the commercial implications for the respondent of a security guard being asleep it is easy to see that it might regard a termination as lying within the range of reasonable responses. The complainant sought to diminish his falling asleep as ‘unfortunate’,

For all these reasons I find that the decision to terminate the complainant’s employment was fair.

Regarding the other complaints CA’s 34528-2, -004 and -005 were withdrawn, leaving CA’s 34528-003 (Organisation of Working Time Act, breaks) -006 (OWT night working) and -008 minimum notice, which latter complaint only became active in the event of a finding that the complainant had been unfairly dismissed.

In general, the respondent argued that in respect of all the OWT complaints that it was in compliance with the Acts, specifically the derogations that applied to his sector. It was also submitted, and I accept that evidence that the complainant had taken and signed for all breaks to which he was entitled.

There was a further somewhat speculative complaint that had the respondent carried out the required risk assessment for a night worker the complainant ‘would have been recognised as a special category night worker.’ It was difficult to discern any prima facie case here.

Accordingly, none of the additional complaints are well-founded either. 

CA’s 34528-002, -004 and -005 were withdrawn,

CA-34528-001 is not upheld and the termination of employment was fair.

CA’s 34528-003, -006 and -008 are not well founded.

Unfair Dismissal, Breaks