Complainant

Respondent

Parties

Simon  McDonnell

Acacia Facilities Management Limited

Representatives

Donal T. McAuliffe & Co. Solicitors

JW O’Donovan LLP

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-00044463-001

03/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00044463-002

03/06/2021

The complainant had been employed by the respondent, a facilities management company, between May 2015 and December 2010 to 20. The respondent says his employment was terminated arising from a poor record of attendance and that he was dismissed for gross misconduct.

He disputes the dismissal and says it is unfair.

The respondent says the complainant was summarily dismissed on November 20th, 2020, as a result of failure to attend his for his full shift on a number of occasions.

On thirteen separate occasions he arrived later than his rostered start time and left earlier than his finishing time. This resulted in him working three hours per week less than his contracted hours and being paid for forty-one hours and thirty minutes of rostered hours he had not worked.

The complainant had been employed in a security role and this had obvious and serious implications for the respondent’s client and resulted in reputational damage and financial loss to the respondent.

The complainant had never previously raised any issues about his starting time.

There was a three-stage disciplinary process conducted by the company.

The allegations were initially investigated by management, then a disciplinary hearing was conducted by a different manager and finally the complainant was permitted an appeal to a third manager.

In the course of the investigation the complainant acknowledged that his rostered hours were from 7 am to 7 pm and offered as an explanation that he had difficulty in getting to and from work using public transport.

The investigator concluded that the matter warranted disciplinary action.

He was invited to attend a disciplinary hearing to answer five allegations of gross misconduct relating to the thirteen occasions when it was alleged he had not been present at the specified start and finish times.

He was fully advised of all his rights in respect of the process.

The disciplinary process concluded that the facts were well founded in that he had failed to follow the correct procedure in respect of any difficulties he had about attendance.

The consequences of his conduct were also a factor in that his absence compromised the security of a critical client of the company. He was fully facilitated with the right with the right of reply in relation to the allegations and told that no decision had been made at the date of the hearing.

In due course on November 20th, 2020, the allegations were upheld, and the decision maker was further satisfied that they were sufficiently serious to merit a finding of gross misconduct.

Accordingly, the decision was made to terminate his employment.

The complainant appealed but it was concluded that the grounds of appeal raised by him in respect of the investigation were not well founded and the conclusions of the disciplinary hearing were upheld.

In respect of the second complaint of a breach of the Payment of Wages act the respondent submits that the complainant was not entitled to payment for the dates he refers to.

These follow the date of termination, and the respondent was under no obligation to make any payment.

A number of witnesses gave evidence.

The complainant’s direct line manager, Mr Gerald Clarges gave evidence on oath.

He is employed as ‘Soft Services Manager’ and supervises thirteen members of the company’s employees. Despite the pandemic he says the company retained all employees although some changes had to be made in relation to their shifts to achieve this.

Regarding the allegation by the complainant that he (the witness) in some way approved the complainant’s attendance arrangements his evidence was that he never gave any such permission whatsoever.

The rosters were drawn up by another manager and not by him and he had no power or authority to change the start or finish times of any employee. If a person wanted a change, they would be referred to Susan O’Hare, a senior account manager.

The witness said that he had never changed the roster for anyone and denied that he ever said that it was okay for the complainant to arrive late or depart early than rostered.

He repeated that if a person needed a change they had to go to Ms O’Hare. He stated that he was not aware of the actual position of the complainant’s attendance as he did not check login records on a continuous basis.

The complainant’s pattern of attendance only came to light when the respondent’s client advised of an alarm going off at a time when the complainant should have been on site. The witness checked the closing record to discover that it had closed early, and that the complainant was not on site as he should have been.

This led the witness to check other closings and when he realised the situation regarding the complainant’s attendance, he approached HR for advice.

Following this consultation, he returned and suspended the complainant and took his keys following an interview with him etc.

When put to him in cross-examination that at the investigation stage he had not actually firmly denied approving the complainant’s attendance arrangement but had only said that he could not recall the conversation, the witness adhered to his position that he had definitely not given the complainant permission to arrive late as was being suggested.

The senior account manager Susan O’Hare also give evidence on oath.

She repeated the arrangements that had been made during the pandemic to retain employee numbers and that the means of achieving this was by applying flexible rosters while also attempting to meet employee needs.

She confirmed that she was the only person who prepared rosters including any amendments or changes to them and said that this was known to the complainant.

The complainant had never said anything to her about transport difficulties and had he done so she might have been able to do something. He never mentioned anything to her about lates or difficulties with transport to and from the workplace.

Other employees did seek and get changes in their rosters. She also gave evidence regarding the disciplinary procedure and that the complainant asserted that he had permission for the early arrival from Mr Clarges but not for the early departure.

At no stage did the complainant offer to repay the excess payments.

In response to questions from the complainant’s solicitor she said the possibility of alternative sanctions was fully considered and that she had taken a week to decide on the sanction of termination.

On conclusion of Ms O’Hare’s evidence, the respondent summarised that there was no basis for the complainant’s defence that he had consent for the arrangement as he now claims.

It was noted that he had now changed his evidence in respect of leaving early and that he had not provided the explanation of a second conversation related to early departure to the disciplinary hearing. This is one of the inconsistencies in his evidence.

The complainant was made fully aware of the nature of the allegations against him even if not the specific detail and the requirements of natural justice were met up to including the appeal.

Regarding the sanction the respondent says that the damage to the relationship with the respondent’s client was a critical consideration and fundamental in relation to the fulfilment of the complainant’s contractual duties.

The respondent says this falls well within the range of reasonable sanctions.

Initially, at the outset of the pandemic the complainant was told that his hours would be midnight to 7 am, Monday to Saturday.

He worked the schedule without any problems for a number of weeks and was then advised of a further change. This new change was to 12-hour shifts on Saturday and Sunday from 7 pm to 7 am. The complainant told his line manager that he was relying on public transport and the earliest he could arrive on a Sunday morning was 9.45.

He says his manager told him to try to get in as early as he could.

Similarly, there was a difficulty with the evening public transport arrangements which required him to leave at 18.40 in order to catch the last train.

He did not seek to in any way hide the start and finish times which were known to his manager. He knew that as a security operative his attendance on site was fully monitored and could be traced by reference to the arming and disarming times of the building.

In the thirteen-week period in question the complainant completed his weekday shifts without difficulty. The problem only really related to the Sunday shift because of the public transport schedule in operation of the time.

The complainant gave direct evidence on oath.

He confirmed the various changes in his shift pattern and stated that he told Mr Clarges that he could not get in at the start time proposed. This conversation took place on the telephone.  He rang Mr Clarges after the text to say that he would not be there at the start time.

In addition, he did not get notice of the investigation meeting on November 9th and was not given minutes of this investigation meeting or any record of it in advance of the disciplinary hearing.

In response to cross-examination by the respondent’s solicitor it was put to him that his entire defence revolved around the alleged approval of his late arrival, but he had offered no explanation for his early departure.

The complainant said that he had told Mr Clarges that he had to leave early also. He said he explained the rail timetable to Mr Clarges, but it was put to him that in the minutes of the disciplinary hearing he had made no reference to telling anybody specifically about the early departure.

In conclusion, the complainant says that it was clear that the respondent agreed to the complaints arrangement and was fully aware of his difficulty in getting to and from work to meet the rostered start and finishing times.

In addition, the procedure followed by the respondent was wholly inadequate. He was suspended prior to any investigation and denied fair procedure in circumstances where the outcome was predetermined. The sanction was unfair, and the complainant’s previous unblemished record was not taken into account.

As can be seen above, the complainant’s explanations for his actions revolves entirely around the exchange he had with his manager Mr Clarges in respect of his difficulty in arriving on time in the morning.

In the course of the hearing, he sought to extend this explanation to excuse the evening departures also. As noted by the respondent, the complainant, at least in the course of the internal procedure, did not offer any explanation for his early departure in the evenings.

On the basis of the evidence submitted to the hearing let us first consider the possibility that Mr Clarges was told by the complainant of his difficulty in getting to work.

Even if he did, the complainant subsequently construed this as approval to continue with his late arrival without seeking further approval and then, for good measure extended it to his early departure although it is quite clear that in the course of the disciplinary proceedings, he made no reference to approval for an earlier, evening departure.

There was also the evidence of both the respondent witnesses that not only was Miss O’Hare the only person with responsibility for preparing and changing rosters but her specific evidence on oath was that this was known to the complainant.

In all the circumstances the complainant’s attempts to construe this simple exchange, even if it happened as he described it, to cover all his absences is not credible as an explanation for his actions.

Even if the complainant were to be given the benefit of the doubt in respect of Mr Clarges waving away the difficulty brought to his attention by the complainant on one occasion (and I am conscious of Mr Clarges’ evidence on oath that he said there was no such approval or acquiescence) his elevation of this exchange into approval for his continuing late arrivals and early departures suggests a lack of insight and level of naivete which again is not credible.

Specifically, it is simply not believable that the complainant actually believed that Mr Clarges had the authority to alter the roster at all and most definitely not to such a significant extent as the complainant took upon himself to apply.

Accordingly, I find that the complainant has no basis for his assertion that this arrangement, as he saw it, had the approval of his employer.

The complainant raised several issues about the procedure followed by the respondent in conducting various stages of the process.

Specifically, he has complained about the initial meeting with Mr Clarges on the basis that it was an ‘investigation meeting’ which had not been properly convened and minuted.

This was then followed by the letter convening the disciplinary meeting the next day and while there is some imprecision in the language used, I am satisfied that the letter of November 10th fully set out both the information the complainant needed to prepare for the disciplinary stage, his rights at the hearing and the disciplinary consequences to which he might be exposed.

Whether or not the meeting with Mr Clarges the day before can be elevated to the status of a formal investigation meeting is not decisive. Managers may (and indeed are obliged to) conduct preliminary fact-finding conversations with an employee in such circumstances and can do so with a degree of informality.

This is especially the case here given the fact is that the complainant acknowledged in the course of that meeting that he had not been attending for his full shift (and relying on his transport problems), which was the purpose of the meeting and as noted above any defect in the conduct of that meeting was fully remedied by the letter from Ms O’Hare on November 10th and well in advance of any disciplinary hearing.

The attempt by the complainant to suggest that the outcome was pre-determined was not supported by any evidence.

The complainant also submitted that his previous record was not considered and that the sanction was unfair, but I find that it lay well within the range of reasonable sanctions in the circumstances of the complainant’s actions and the nature of the respondent ‘s business.

He was also given the right to appeal, and this was not successful.

I find that the dismissal was fair.

I also find that he was not entitled to any payment of wages in respect of the period claimed after the termination of his employment and that complaint is not well-founded.

In respect of complaint CA-00044463-001 I find that the dismissal was fair for the reasons set out above.

Complaint CA-00044463-002 is not well-founded.

Dismissal, Fair Procedure