Worker

Employer

Anonymised Parties

{A Security Officer}

{A Security Employer}

Representatives

John Daly

Gavin Comiskey Peninsula

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

20/02/2020

The Complainant was a security officer employed by the Respondent from 1st May 2019 until 23rd January 2020.

The Complainant who is Indian claims he was unfairly dismissed. He was discriminated against in allocation of shifts and dismissed due to his race. He was not aware of any complaints in relation to his performance. He accepted an incident occurred when he was caught asleep in a car on site on 23rd August 2019. He said he had worked from 7am to 3pm and then was asked to work from 7pm to 7am the following morning, so he had to get a nap at 2 am. This was the only time he slept on any job and denies he was asleep on 25th August 2019. He was given a verbal warning after he was caught asleep in a car, but refused to accept this.

The Complainant said the company produced one clock-in report for one site where they say there are gaps in the clock-ins, and he works on lots of sites. He says his clock-ins were much improved after the meeting. He received a letter from the company extending his probation for 3 months on 25th November 2019. He had been complaining that other staff who are Pakistani were receiving better hours and better sites than him. He was receiving lots of 5 hour shifts and working 6 days where other staff were given four 12 hour shifts on sites with better facilities. The Supervisor KB is Pakistani and was allocating the shifts.

He did not attend the meeting on 10th January 2020 and does not remember receiving notification on 9th January 2020 as contact was usually by telephone. The Complainant says he never got a contract of employment. He only received a rainproof jacket after 5 months. He was using a plastic bin liner as he never got the kit. He did not refuse to come into the office on 13th January 2020, but it was his day off.

He received an email on 13th January 2020 regarding clocking in and replied that the front gate had to be kept open on the site due to maintenance. He notified the company he declined to accept any more 5 hour shifts as he wanted to get full-time shifts. He was unfairly dismissed at a meeting on 15th January 2020. The letter of dismissal was handed to him at the meeting, this was prepared in advance. Fair procedures were not applied. The dismissal was disproportionate.

The Complainant was employed by the Respondent as a security guard at various sites from 24th May 2019 until 15th January 2020. He was dismissed due to failure to complete his probation period satisfactorily.

The Complainant was provided with a letter of engagement, employment contract, operational procedures and an induction training session which he signed as completed on 24th May 2019. This included information on pay, entitlements, grievance and disciplinary procedures.

On 31st October 2019 the company sought an explanation of clock-in gaps in the Complainant’s patrols. Prior to 22nd November 2019 the Complainant alleged he was being treated less favourably than Pakistani employees and was receiving less favourable hours. He was told he was receiving an average of 43 hours and was satisfied with this. This issue was not raised again by the Complainant.

A meeting was held with the Complainant on 22nd November 2019, when performance issues of failing to clock in, and being caught asleep were raised. The Complainant was given a written warning. Security officers are required to patrol every hour on the hour and clock-in.

The Director gave evidence that other employees do not clock-in. If the weather is extreme security officers can write this in the login book on site. The Manager gave evidence that the Complainant fell asleep on site and was moved to a smaller site. He was given an average of 43 hours per week.

 On 25th November 2019 the Complainant’s probation period was extended by three months. The Complainant’s hours were discussed in November and he was given four 12 hour shifts over Christmas. After Christmas the client went back to work Monday to Friday, so there was only weekend work available. The Manager said the Complainant did not respond to his emails from 9th January to 13th January 2020 and refused to come into the office on 13th January 2020. The Complainant refused 5 hour shifts and his clocking in was poor.

The Complainant said he was a full-time worker and should not be expected to work 5 hour shifts, and these should be given to students. The Complainant said he was not refusing the roster but was seeking alternative shifts. The company said there were no alternative shifts.

On 15th January 2020, the Complainant was informed he was dismissed as he did not demonstrate the necessary ability and skill to perform the role. He was given a right of appeal within 5 days. The Complainant contacted the company seeking to appeal this on 29th January 2020 which was out of time and the company refused. The Complainant never raised a grievance and was not dismissed due to raising discrimination in the workplace.

The employer denies any breach of the Terms of Employment (Information) Act 1994. A contract of employment is given when probation is completed. The Complainant signed receipt of all induction materials.

The Respondent declines to participate in the complaint pursuant to S13 of the Industrial Relations Act 1969.

I have heard and considered the written and oral submissions and evidence of witnesses for the parties.

The Complainant has made a complaint pursuant to S13 of the Industrial Relations Act 1969. Pursuant to S 36 (1) of the Industrial Relations Act 1990 as amended the Respondent is required to notify the Workplace Relations Commission if they object to the investigation of a trade dispute by an Adjudication Officer within 21 days after notice of the reference of the dispute to the Adjudication Officer has been sent by post. The time period passed without notice of objection being received and accordingly, I have jurisdiction to hear the dispute.

The Complainant complains that he was unfairly dismissed not due to performance concerns but due to a complaint of race discrimination made in November 2019. The Complainant was informed of difficulties with his performance, after he complained of less favourable treatment in allocation of shifts due to his nationality.  His probation period was extended for a further 3 months. The Respondent gave him a written warning for falling asleep on site which he would not accept. He said he was working two back to back shifts at the time at the Respondents request and had to sleep. He denied falling asleep on another occasion. The Complainant was not provided with an employment contract. The Respondent documented non-compliance by the Complainant with the requirement to clock in hourly on one site prior to the meeting and falling asleep. The Complainant worked on a number of sites. His clocking in improved after the meeting. The Director of the Respondent said other employees were not clocking in as well.

The Complainant was given longer shifts over Christmas, however, evidence was produced of lack of compliance with clocking in again during this period. This was brought to the Complainant’s attention in January. He did not see the email and did not respond until 13th January 2020. He said he no longer wanted to work 5 hour shifts given his service. On 15th January 2020, the Complainant was dismissed at a meeting due to non-compliance with clocking in and refusal to work 5 hour shifts.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal and,

(b)   to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.

The burden of proof rests on the Respondent to show that the dismissal of the Complainant was in compliance with S6 of the Unfair Dismissals Acts 1977-2015.

The first occasion the Complainant was notified of clocking in concerns was on 22nd November 2019 at a probationary meeting. He had been given a warning for falling asleep in August 2019 which he did not accept as he was working 2 long shifts at the Respondents request. In accordance with fair procedures and the Industrial Relations Act, 1990 (Code of practice on grievance and disciplinary procedures) Order 2000 the Complainant should have been notified of performance concerns long before his probation review to provide clarification on the standards required and allow him to improve. He was not provided with a performance management policy. The Complainants probationary period was extended for 3 months. His clocking in improved following the meeting.

On 8th and 9th January 2020 the Complainant was notified for the second time of more clocking in concerns. He replied by email the reason for not clocking in was because the front gate on the site had to be kept open. He also notified the company he wanted longer shifts and was not happy to continue taking 5 hour shifts. He was then called to a meeting. He was unhappy about the shifts being allocated and should have been informed about the availability of a grievance procedure to deal with his complaint. He was not notified in advance of the meeting that his employment was at risk and his right to bring a colleague or union representation. He provided an explanation for non-compliance with clocking in, but this was not accepted. I am not satisfied that the Respondent has discharged the burden of proof that the Complainant’s dismissal was fair. The Respondent did not comply with fair procedures in their performance review process and the time period given to the Complainant to address performance issues was inadequate. In all the circumstances, dismissal was disproportionate and I find the Complainant was unfairly dismissed.

I recommend compensation for dismissal of € 3,500.00 be paid to the Complainant by the Respondent.

Disproportionate, performance issues