Complainant

Respondent

Parties

Peter  Finn

Headway Security Services Ltd

Representatives

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-00050498-001

06/05/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00051741-001

19/07/2022

The Complainant worked for the Respondent security company from 2004 until the employment relationship ended in late 2021.

The Complainant argues that he was dismissed after having referred a previous series of complaints to the WRC and my colleague Mr Baneham finding in his favour.

The Respondent argues that the Complainant walked off the job after having trying and failing to initiate an illegal strike.

It is common case that communications between the parties ceased sometime in November 2021. Much of the hearing focused on the events of October/early November 2021.

The Complainant attended represented himself.

Mr Greg Murphy the Respondent’s Managing Director attended on behalf of the Respondent.

The Complainant attended the hearing and gave evidence under oath.

Following his having succeeded at the WRC under a number of statutory complaints he was issued with a letter by Shane Dooley the site manager. The letter was from Greg Murphy the MD.

The letter was an entirely unfair and made a number of unfounded allegations against him and threatened his imminent dismissal. It was drafted the same day the WRC decision issued.

The Complainant was at the time challenging the Respondent on their attempts to get him and his colleagues to cover the duties of office workers.

Shortly before he was due to start his shift on 6th of November 2021 he received a call from Mr McLoughlin telling him he was taken off the roster. He believed he was being dismissed so threatened to begin a strike. He informed both the site supervisor and client. On the 11th he got a further call telling him he was taken off the roster indefinitely.

He took this to be confirmation of his summary dismissal.

Mr Greg Murphy outlined that he only sought to raise reasonable concerns with the Complainant following his recent refusal to engage in training and other changes at the behest of the Respondent’s client. In response to this the Complainant threatened to go on strike and walked off the job. He abandoned his post.

Mr Ray McLoughlin gave evidence under oath. He explained the process involved in rostering the Complainant and other staff. Rosters were set by Mr Murphy and then distributed via the site controller which was Mr McLoughlin.

Mr McLoughlin understands that the Complainant had recently received a warning letter from Mr Murphy which he ripped up on the spot. He then received a text from the Complainant stating that he was going to put a chain around the gate of the area of the port which they operated. The Respondent made arrangements to get cover and took the Complainant off the roster.

Mr Shane Dooley gave evidence under oath. He is site supervisor for the client site the Complainant was based in. There had been some recent disagreements with the Complainant regarding duties, work locations and the Complainant taking prolonged breaks.

Mr Murphy gave Mr Dooley a warning letter to give to the Complainant. When he did the Complainant ripped it up in front of him without even opening it. Even at that stage there was no intention to dismiss the Complainant just to challenge him on his behaviour.

There is a significant dispute between the parties as to what happened between the 5th and 10th of November 2021.

The Respondent argues that the Complainant, upset at the letter issued to them on the 5th of November, threatened an illegal strike. As such they took him off the roster for the following week and awaited notification that he was returning to work. This did not happen and the Complainant essentially resigned. 

The Complainant in turn argues that he was given the letter of the 5th of November by Mr Dooley who immediately left the area. Mr McLoughlin informed him, the following morning, that he was not to be allowed back on site. He took that as his dismissal. He then threatened strike action but was dissuaded from doing so by his Union and the Respondent indicating that he was not allowed on site.

In either event I am satisfied that the Complainant was unfairly dismissed. In the text messages provided by the Respondent it is clear that he was threatening a one day strike. As such, even if I was to agree with the Respondent’s case, he was available for work but taken off the roster. The Respondent made no effort to get in touch with him and clarify the situation or offer for him to return.

It may have been that, following the threats made by the Complainant to place a picket on the port, the Respondent could have decided to discipline him and even dismiss him. However, they would have had to follow the appropriate process and proactively make that decision. They did not do so. They simply stopped rostering him.

I am satisfied the Complainant contributed to the situation significantly but I believe the appropriate manner in which to take account of this is in the redress I award.

Redress

 Section 7 of the Unfair Dismissals Act provides that I may make an award based on the financial loss attributable to the dismissal. The Complainant got a new job on better pay almost immediately after his employment with the Respondent ended. 

Section 7cii provides that: if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

As such any award I make is limited to a maximum of 4 weeks wages or €1888.

Section 7.2 goes on to state that in determining the appropriate award I must have regard to:

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, […]

((d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

With regard to f I am satisfied that the Complainant significantly contributed to the dismissal.

I note his own evidence that he was taking an extended break on the Friday the 5th of November. This break went to an hour and a half because it was a quiet day. Yet when Mr Dooley approached him and asked him to carry out other duties he refused. In the absence of an explicit demarcation agreement or other policy limiting his role this action was insubordinate. When Mr Dooley issued him with a letter he ripped it up on the spot without reading it. This is another example of insubordinate and quite disrespectful behaviour.

Again relying on the Complainant’s own account of events, when he was taken off roster his first reaction was to threaten a one man picket and disrupt a the operating of the largest port in the country. He proposed to stop each truck entering the terminal and explain to the driver his grievance and then let them proceed. This is the course of action he proposed before seeking any further engagement with the Respondent.

It is clear that by early November the Complainant had significantly contributed to a near total breakdown of the employment relationship. I am satisfied that if the Respondent had followed appropriate procedures they would have likely been able to dismiss him in compliance with this act.

In the circumstances I believe I ought to reduce the award by a further two thirds and limit it to €630.

I find that the complaint is well founded and direct the Respondent to pay the Complainant €630.