Complainant

Respondent

Parties

Donatus  Okafor

Synergy Security Solution

Representatives

  Self-Represented

Shahz Saeed, General Manager

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-00051783-001

19/07/2022

The Complainant commenced employment with the Respondent as a Security Officer on 28 September 2019. At all times his role was described as that of “Security Officer’’.

The Complainant’s employment was terminated by the Respondent on the grounds of gross misconduct on 16 June 2022.

The reason giving for his termination by his employer was for gross misconduct due to sleeping on duty on the 04 April 2022 at Google Barrow Street, Dublin.

The Complainant submitted his complaint to the Workplace Relations Commission (WRC) on 19 July 2022.

The Complainant submitted that the sanction of dismissal was disproportionate given the misconduct in question and his personal circumstances.

In response, the Respondent submitted that the Complainant’s employment was terminated on the basis of gross misconduct.

Having regard to the same, they submitted that the dismissal of the Complainant was not unfair for the purposes of the present Act. The Respondent further submitted that the dismissal was reasonable in all the circumstances of the case and furthermore that the Complainant made a significant contribution to the dismissal outcome.

A remote hearing in relation to this matter took place on the 03 March 2023.

No objections as to my jurisdiction to hear the matter were raised at any stage of the proceedings.

As the fact of dismissal was not in dispute, the Respondent accepted the consequent burden of proof imposed by the Act. 

The Respondent submits as follows:

The Respondent contends that the Complainant’s employment was terminated on the basis of gross misconduct. Having regard to the same, the Respondent added that the dismissal of the Complainant was not unfair for the purposes of the present Act.

The Respondent further contends that the Complainant was dismissed for sleeping while on duty and this is a serious breach of company policy.

By way of background information, the Respondent submits that it is one of the leading international providers of managed security and related services across Ireland and Europe and that it prides itself on providing the highest levels of professionalism and customer care through, quality, efficiency, effectiveness, accountability, and a partnership approach.

The Respondent advised the hearing that Complainant was employed as a Security Officer from the 28 September 2019 until the termination of his employment on the grounds of gross misconduct on 16 June 2022.

On the date of the incident on the 04 April 2022, the Respondent submits that the Complainant was assigned as the Security Officer to Google Barrow Street Offices in Dublin and was responsible for safeguarding the premises.

The Respondent further advised the hearing that on the 04 April 2022, a staff member with the role of Supervisor for the company became concerned when the Complainant did not return any of the calls the control room had made despite them calling him five times; calls that he did not answer.

It was in this context the Respondent submitted that it was out of concern for the Complainant’s health and safety that the Supervisor was prompted to go to the site.

On arriving at the Google Barrow Street offices, the Respondent told the hearing that the Supervisor found the Complainant to be asleep while on duty.

As a result of the incident, on the 05 April 2022 the Respondent advised the hearing that they received a formal complaint from the Supervisor that the Complainant had been asleep on duty at Google Barrow Street, Dublin.

The Respondent submitted that 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.

An investigation of this complaint was conducted by the Account Manager on 08 April 2022.

The Purpose of this meeting was to discuss an alleged breach of discipline that the Complainant was asleep on duty at Google Barrow Street, on the 4/4/22.

The Respondent noted that the Complainant was also informed that he may be represented by a Trade Union Representative, fellow worker or your legal representative. He was also informed that he may call witnesses to that hearing, and that he also had the right of cross examination.

The Respondent stated at the hearing that following the investigation meeting with the Complainant a decision was made to refer the matter on further to a disciplinary meeting.

The Respondent submitted that a disciplinary meeting took place on the 07 June 2022 in relation to the alleged incident that took place on the 04 April 2022.

Before the meeting, the Respondent submitted that a discipline invitation was sent to the employee on 02 June 2022 along with the company Discipline Policy that a disciplinary hearing has been arranged for Tuesday 07 June 2022, at 2pm.

Former Employee Relations staff member Mr Fergus Treanor who conducted the disciplinary hearing with the Complainant gave evidence that on the date of the hearing that he conducted this interview by way of video call, and this was due to the current Covid 19 pandemic.

Mr Treanor also submitted that the Complainant was informed before the disciplinary hearing that he may be represented by a Trade Union Representative or a fellow worker, family member or legal representative.

Mr Treanor further submitted that the Complainant was informed that the outcome of the hearing would be made known to him in writing and an appeal process is in place should he wish to appeal the decision made.

In this regard, as referenced above the Respondent advised the hearing that it sent a discipline invitation to the employee on 2 June 2022 along with the company Discipline Policy.

The Respondent submitted that the reason this meeting didn’t take place sooner was because the Complainant was absent without authorised leave from 04 April 2022 and did not return until early June 2022.

Mr Treanor gave evidence that while the Complaint disputed in his disciplinary meeting that he was asleep he did not dispute that his eyes were closed for the duration of the incident.

Mr Treanor also gave further evidence that the reason the Complainant gave for not answering the phone was he was because he was listening to music.

Mr Treanor advised the hearing that listening to music or watching tv while on duty is also a breach of its policy in that it amounts to a failure on the employee to devote the whole of his time, attention and abilities to the business and its affairs during the course of carrying out his duties.

In addition, Mr Treanor also advised the hearing that the Complainant did not dispute that he was on CCTV for the duration of the incident.

Following the meeting on 07 June 2022 Mr Treanor gave evidence that he provided the Complainant with a copy of the disciplinary meeting notes.

Mr Treanor further advised the hearing that the Complainant did not dispute or object to the notes of the meeting and when the Respondent sought confirmation in this regard, the Complainant did not respond.

In weighing up the proportionality of the sanction, Mr Treanor in his evidence advised the hearing that given the serious nature of the breaches and also the reputational damage the incident had caused for the Respondent that a staff member had falling asleep, he came to the conclusion that he could not have trust that the Complainant would not repeat the behaviour the next time he was rostered for lone night working.

Mr Treanor also advised the hearing that the office in which the incident took place contains confidential and sensitive data and information and it is vital its employees who are assigned to be on duty at this location are alert at all times while on duty.

Mr Treanor also submitted that the business relies to a great extent on the relationships and trust it has built up over many years with clients and this is essential to both its brand and business and also in his final judgment on the matter there can be no greater breach of trust than a Security Officer sleeping and not been alert on duty while responsible for the security of a client’s site.

It is in this context that Mr Treanor advised the hearing that the Complainant was informed on the 09 June 2022 that the outcome of the discipline hearing was “dismissal”.

The Respondent submitted that the decision it took is in line with previous decisions made by the company.

In relation to fair procedures, the Respondent submitted that Complainant was notified by email. He was also provided with a copy of the company discipline policy, and he was also notified of his right to appeal this decision.

The Respondent submitted that Complainant did not appeal during any stage of the investigation, or the final decision and his employment was terminated 16 June 2022.

The Complainant did not appeal the final decision to terminate his employment on the 16 June 2022.

The Respondent further added that 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 Complainant was also at all times afforded and informed that he may be represented by a Trade Union Representative, fellow worker or a legal representative.

The Respondent also submitted that the fact that the Complainant was not alert while on duty for a long duration of time was not denied and, in these circumstances, there was no alternative other than to dismiss the Complainant for his own conduct.

The Respondent also submitted that Complainant while not accepting he was asleep has accepted his eyes were closed for a long duration of time but seeks to excuse this by reference to a family bereavement.

The Respondent also stated that at no time did they receive notification from the Complainant that he was taking medication prescribed by a doctor.

In its closing summary, the Respondents advised the hearing that the dismissal of the Complainant was both procedurally and substantially fair and that the Complainant was only dismissed on foot of an investigation and a disciplinary process.

Having regard to the same, the Respondent submitted that the dismissal was reasonable in all the circumstances of the case and furthermore that the Complainant made a significant contribution to the dismissal outcome.

The Complainant submits as follows:

The Complainant submitted at the hearing that he commenced employment with the Respondent as a Security Officer from 28 September 2019 until his employment was terminated by the Respondent on the grounds of gross misconduct on 16 June 2022.

As a result of this, the Complainant submitted that he lodged a complaint to the Workplace Relations Commission (WRC) on 19 July 2022.

At all times the Complainant submitted that his role was described as that of “Security Officer’’.

The Complainant further submitted that the reason giving for his termination by his employer was for gross misconduct due to sleeping on duty on the 04 April 2022 at Google Barrow Street, Dublin.

The Complainant advised the hearing that while he did not dispute his behaviour and actions were acceptable, he felt the sanction of dismissal was disproportionate given the misconduct in question and his personal circumstances.

In addition, the Complainant further advised the hearing that while he did not dispute the fact that he was at his desk with his eyes closed for a long duration of time, in his evidence he disputed that he fell asleep and there is also context to this, of which he feels the employer has failed to take account.

The Complainant stated that his Father had passed away on the 14 January 2022 and he was feeling depressed at the time.

The Complainant further stated that as he was the eldest of the Family, he was saving up money to return for his Father’s funeral in Nigeria which was scheduled to take place in April.

To help him get by during this time, the Complainant stated at the hearing that he was self-medicating with medication that his Wife had gave to him.

The Complainant explained at the hearing that while thinking of ways to raise money for his Fathers burial, he became stressed and depressed and begin to self-medicate with anti-depressant medication his wife had gave to him in and around the end of January 2022 because she was aware of his situation.

The Complainant gave evidence that on the date of incident on the 04 April 2022 while he was on duty at the Barrow Google site, he became dizzy after taking the medication and sat down at his desk and closed his eyes.

The Complainant disputed that he was sleeping and that he just had his eyes closed for a long duration of time.

The Complainant advised the hearing on this point that when the supervisor arrived and found him sitting with his eyes closed, he stated that he informed the Respondent he was not sleeping and because the volume of the phone was low he did not hear any call that was previously made to him before the Supervisor had arrived as he had his ear phones in listening to music.

The Complainant stated that on foot of this incident he was invited to a meeting on 08 April 2022 by his manager in which he had a further discussion in relation to what happened on the 04 April 2022.

The Complainant stated that during this meeting he disclosed some of the issues he was struggling with in relation to his Father.

On return from the burial of his Father around the end of May, the Complainant stated he was invited to a further disciplinary meeting by Mr. Fergus Treanor, and in the meeting, while he did not dispute that he had his eyes closed over a long duration of time, he informed Mr Treanor of the same set of circumstances he had told his manager in the first meeting.

The Complainant stated that he was informed of the outcome of the disciplinary meeting a few days after the meeting that he was dismissed, and his last date of employment would be the 16 June 2022.

The Complainant informed the hearing that he was shocked by the outcome and never expected that he would be dismissed.

In his reasoning for not lodging an appeal at any stage including when he received the notification to dismiss or at a later date, the Complainant gave evidence that he was not thinking clearly during this time and was still in shock in relation to the incident and also in relation to the death of his Father.

In relation to the sanction, the Complainant stated that while falling asleep or having your eyes closed may be misconduct it is certainly not gross misconduct in his opinion.

In the Complainants closing remarks he submitted at the hearing that he believes that the sanction of dismissal is completely disproportionate to the conduct in question and does not warrant dismissal on the basis of gross misconduct and an alternative sanction should have been administered other than dismissal.

I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing. Following the hearing, the parties made further written submissions in relation to the Complainants rate of pay in his new position of employment and also his efforts to mitigate his loss.

The parties agreed at the hearing that the date of commencement in the role and the dismissal was not in dispute. In this regard, as dismissal as a fact is not in dispute in this case it is for the Respondent to establish that in the circumstances of this case the dismissal was fair and whether dismissal was a proportionate response to the allegation of misconduct.

The Complainant was employed from 28 September 2019 until the termination of his employment on the 16 June 2022 for “Gross misconduct” by the Respondent on 16 June 2022.

The Law:

Section 6(1) of the Unfair Dismissals Act, 1977 provides that “the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

Section 6(4) of the Unfair Dismissals Act, 1977 provides as follows:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more 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

 Section 6(6) of the Act states as follows:

In determining for the purposes of this Act whether the dismissal of an 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(7) provides that in determining whether a dismissal is unfair, regard may be had:

a)   to the reasonableness or otherwise of the conduct (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…with the procedure…or with the provisions of any code of practice…”

The matter of Noritake (Irl)Ltd v Kenna (UD 88/1983) sets out the following three criteria to determine “reasonableness” for the purposes of the Acts:

·       “Did the company believe that the employee misconducted himself as alleged?

·       If so, did the company have reasonable grounds to sustain that belief?

·       If so, was the penalty of dismissal proportionate to the alleged misconduct?”

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 the conduct or performance of the employee.

In this case, while there is a disagreement with the Complainant and the Respondent on if the Complainant was sleeping at his desk, it is accepted and was not disputed by both parties at the hearing that the Complainant, had his eyes closed over a long period of time at his desk while on duty at work.

The Complainant in this regard did not dispute this and has offered an explanation to mitigate this which was rejected by the Respondent.

Firstly, 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 that are placed on an employer who is carrying out disciplinary action.

This is done 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.

In this regard, I am satisfied that Complainant was informed that before the disciplinary hearing that he may be represented by a Trade Union Representative or a fellow worker, family member or legal representative.

I am also satisfied that the Complainant was informed that the outcome of the disciplinary hearing would be made known to him in writing and an appeal process is in place should he wish to appeal the decision made.

I also note that on receiving the decision, the Complainant did not avail of an appeal.

However, 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 and sanction it administered is reasonable.

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 takes 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 in this case against the Complainant were fully investigated and substantially established and this was followed by a disciplinary hearing. I also note that the Complainant was informed of an appeal stage which he chose not to invoke.

Furthermore, I can find no basis for impugning the conduct of the process, nor indeed, in general did the Complainant, whose main submission at the hearing was concentrated on the Respondent not considering a lessor sanction for the conduct in question.

In this regard, the alleged long and varied shifts that the Complainant stated he was doing to save money for his Father’s funeral were not unusual for the industry, and there was no perceptible relationship between variation in shifts put forward at the hearing and the incident giving rise to the termination.

I also note that the Complainant had never raised any objection to or sought any variation of his shifts or raised any issue he had medically at the time or before the incident took place.

In addition, turning to look at the commercial implications for the Respondent of a security officer being asleep or resting with his eyes closed at his desk for a long duration of time while on duty, 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 time at his desk with his eyes closed for a long duration of time as ‘unfortunate ‘and that the sanction of dismissal for such conduct should have been less than dismissal.

For all these reasons however, I find that the Complainant was dismissed from his employment with the Respondent for misconduct, following a full and fair investigation and disciplinary process during which the Complainant was given the right to know the charges against him, the right to be heard, the right to be accompanied and the right to appeal.

I also find that the evidence shows the extremely serious potential consequences of such a situation.

In the circumstances the Respondent was reasonably entitled to conclude that the actions of the Complainant were misconduct, which justified disciplinary sanction eventuating in dismissal.

CA-00051783-001 is not upheld and the termination of employment was fair.

I find the Complainant’s complaint of unfair dismissal to be not well founded.

Unfair Dismissal, Proportionality of sanction, reasonableness, disciplinary process