Complainant

Respondent

Parties

Yassine  Imejjat

Kennedy Security and Consultancy Limited

Representatives

  Self

Robert Byrne HR

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-00049664-001

13/04/2022

This case is the second involving the parties. A previously lodged dispute dealt with complaints by the Complainant about the procedures adopted by the Respondent in responding to complaints made by the by the Complainant about the manner in which he was being supervised and treated. In chronological terms, this complaint moves onto a period where the earlier dispute referred to the WRC and a disciplinary process followed by a dismissal overlap. The Complainant contends that he was dismissed after the WRC informed the Respondent of his previous referral and directly because of that referral.

The complainant was employed by the Respondent as a security officer, assigned to the local hospital. His rate of pay was €279 gross for a twenty-four-hour week. In August 2020 he made the first of a three complaints about the manner in which he was being supervised. Those in August 2020 and June 2021 were investigated but he was unhappy with the way in which the investigations were conducted. His complaints were not upheld on the basis that there was no evidence to support them. On 12 November 2021, the Complainant left the site and informed control that this was due to the way in which he spoken to and treated by the supervisor when he needed to take his break. He was told to make any complaint in writing. He never heard any more about his complaint about that day. On 16 November 2021 he lodged a dispute with the WRC. The Respondent received a notice of the complaint on November 19th. The complainant contends that after the Respondent received the notice from the WRC, they checked cameras and watched when he went to the toilet to see if they could find issues about him around breaks.  On 22 November he sent another complaint to HR who came back to him on December 16th to say that they found no grounds for his complaint. He received notification of a disciplinary hearing regarding the events of November 12th on November 19th in which he was accused of leaving the site without informing control-which he denied as he had informed them, he was leaving that evening, that he was taking excessive breaks and taking breaks without telling the supervisor. He had arranged for someone to cover the patient in the ward-the difficulty he had that day was the supervisor would not reply to him when he sought covert to take his break and he had to leave his station and found someone else to cover his break for him. From 6 – 15 December the Complainant was out sick on certified leave. On 16 December the Complainant received an email saying that following the recent disciplinary meeting, it was decided that he would not be returning to work at the hospital site.  He was offered work in Punchestown, but he could not drive and the Respondent knew that when they employed him. On December 17th he declined to the offer of a move to another site. On January 5th he received notice of an appeal hearing on a remote viewing platform with the operations director. He understood this was an appeal to hear his complaints. However, when the zoom meeting took place, it turned out that this was organised by the Respondent as an appeal of his dismissal. He knew nothing about a dismissal. It transpired that a letter of dismissal was drawn up dated 30th November 2021, but he never received that. The letter said he was dismissed for two acts of gross misconduct on 12 November with the dismissal effective on December 3rd, 2021.

The Complainant questioned whether as claimed by the employer that the letter was sent to another employee by mistake. In any event he knew nothing about the letter or the dismissal until he attended the meeting with the MD.

The Complainant rejected the allegation that he had left the site without notifying control or that he had left a patient unattended. It is his contention that the disciplinary process was commenced only after the Respondent was notified by the WRC of his dispute regarding the investigation of bullying and other complaints.

Mr Byrne gave evidence that there was an incident report from the security supervisor that the Complainant had left the site without informing anyone on the security staff that he was leaving and that he had left a patient unattended while he went for a break. This led to the disciplinary hearing. There was no notification from the WRC when the report from the supervisor was received and the witness was unsure when he saw the notice of the dispute. The decision to dismiss was effective from 3rd December but the Complainant was out sick at the time. When the Complainant asked for an appeal, he was granted the appeal. Mr Byrne accepted the Complainant could not drive. He also accepted that the Complainant had not received the letter of dismissal prior to the meeting with the operations director. He was then told of the dismissal and the letter was sent to him, but they never heard from the Complainant again after that. He questioned why the Complainant had not given the same detail about what had happened on November 12th as he had now provided to the hearing when he attended at the disciplinary meeting. The witness accepted that the Complainant had notified control that he was leaving the site and why, but he had left the site without permission. He also referenced disciplinary proceedings which were started in March 2021 in relation to the Complainant leaving the site without permission and this was taken into account in the decision to dismiss as constituting a second offence(of the same type). Those proceedings were not concluded at the time because the Complainant was out sick. Asked why the offer of a transfer was made after the date of the dismissal-the witness said that the letter had not issued while the Complainant was out sick and then he thought he could do that-offer a transfer-this was his first time dealing with a dismissal he explained to the hearing.

Between August 2020 and November 2021 there is an established pattern of the Complainant becoming annoyed at a supervisor and leaving the site. It is not that he failed to inform someone that he was leaving but he decided first and informed that person as a matter of fact, not a matter of seeking approval to leave. The Respondent was entitled to be concerned about these repeated practices and entitled to initiate a disciplinary process just as the Complainant was entitled to initiate grievances under the relevant policies. On the balance of probabilities, it is reasonable to conclude that the employer genuinely initiated disciplinary proceedings in relation to the alleged conduct of the complainant based on the report from the supervisor and out of genuine dissatisfaction with the Complainants conduct based on the report received. Here however, any empathy with the Respondent ends. There is no clarity as to what evidence was considered by the Respondent in arriving at a decision to dismiss. Were there meetings with the supervisor and others who were named by the Complainant. Where are the notes of all the meetings? Did the Complainant receive any notes of the meetings with others, or the opportunity to respond? How could a person be told of a transfer as a disciplinary measure on one day and then be told he had in fact been dismissed prior to being told of the transfer? These are all rhetorical questions about the process followed by the Respondent without any potential for a satisfactory answer. Frankly such was the degree of inconsistencies and mishandling of this disciplinary process that at times it bordered on farce. And such was the degree of mishandling and contradictions that to hold the Complainant to account for any failure to appeal the dismissal when he did learn of it a month after the event, would be an egregious breach of natural justice. This dismissal was grounded in a flawed disciplinary process which, on the evidence of the HR Manager to the hearing, took into account a previous charge which was never investigated and the delivery of the decision on a disciplinary sanction was both flawed and contradictory rendering any appeal mechanism meaningless. A disciplinary sanction for leaving without permission may have been warranted in this instance, but the dismissal was not a reasonable disciplinary offence in all the circumstances. The dismissal of Yazmin Imejjat by the Respondent was unfair.

Regarding redress, this was discussed with the parties. No return to the hospital site is envisaged by the Respondent and the preference of the Complainant is for compensation-a position with which I agree given all the complaints made by the Complainant about the Respondent and that he was so unhappy in his work environment. That relationship is fatally damaged to the extent that a restoration of the relationship on agreed understandings is impossible to envisage.

Having heard the evidence of the Complainant on his efforts to obtain alternative work, I am not frankly impressed that he made a lot of effort. He remains unemployed. Taking into account the precrural flaws in the conduct of the employer and the finding of an unfair dismissal together with the lack of a sustainable effort to obtain work on the part of the Complainant a figure of ten weeks pay is considered to be fair compensation in all the circumstances, noting that he received no pay in lieu of notice.

CA-00048664 The complaint of unfair dismissal made by the Complainant Yazmin Imejjit against the Respondent Kennedy Security and Consultancy is well founded. The Respondent is to pay the Complainant €2790.

Dismissal