Worker

Employer

Anonymised Parties

A Worker

An Employer

Representatives

 Self-Represented

 Employee Relations Manager

Act

Dispute Reference No.

Date of Receipt

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

IR - SC - 00001123

26/02/2023

This matter came before the WRC dated 26/02/2023 as a complaint seeking adjudication by the WRC under section 13 of the Industrial Relations Act, 1969.

The specific complaint falls under Industrial Relations Issues Type and it is a complaint in relation to disciplinary sanctions up to and including dismissal.  The Worker was employed by the Employer from 30/05/2022 until he resigned his employment on 11/04/2023, with such resignation taking effect on 17/04/2023. 

The Worker is a security guard.  The Employer is nationwide security and support services group serving the commercial, industrial, construction, retail and domestic sectors. 

In his WRC complaint form the worker states on 16/02/2023 he was notified about the resolution of a disciplinary procedure where the resolution was a job relocation.  The Worker submits that until 21/02/2023 he had no information about his new position, and he submits the positions offered by the company are not according to his contract.  The Worker submits they hired him as a security covert operator with a salary of €18 per hour but the only positions the company are now offering are as a static security guard and the salary is €12.05 per hour. 

The Worker submits he asked the company to offer him a position according to his contract, but the answer was that there are no such positions at the moment.  The Worker submits on his WRC complaint form he has been 10 days without a job and no salary and the company should have offered him a new position at the same time they informed hm of the disciplinary resolution. 

The outcome the Worker is seeking from this hearing is financial compensation for two months as articulated by the Worker at hearing.   

The Worker was assigned to a specific site when he commenced his employment as a covert operative with the Employer on 30/05/2022.  The Worker’s contract sets out a rate of pay of €12.05 per hour.  However, the specific client site to which he was assigned attracted a site allowance of €5.95 per hour.   The contract of employment stipulates the site allowance is only applicable to that specific client site. 

The Worker was the subject of an allegation which amounted to a serious breach of discipline and an investigation meeting was held on 30/01/2023 followed by a disciplinary meeting on 13/02/2023.  The outcome of this meeting was that the Worker would be removed from the specific client site.  He was notified of this outcome on 16/02/2023 and given 7 days in which to appeal this decision to a named manager in the Respondent company. 

In the written submission provided to the WRC and shared with the Worker prior to the hearing the Employer submits there was no appeal received within the specific time period or subsequently.

However, it emerged at hearing that an appeal had been lodged by the Worker and this fact had only come to the attention of the Employer in recent days.  When the Worker received the Employer’s written submission prior to this hearing he noted that the Employer’s submission stated no appeal was received and the Worker immediately contacted the Employer to advise he had appealed on 21/02/2023 to the named person. 

It transpires the named manager to whom the appeal was submitted was on sick leave.  The email from the worker together with his letter of appeal had remained in the named manager’s inbox, unread throughout the duration of the aforesaid sick leave. 

Regarding providing the Worker with work after withdrawing him from the specific client site as per the sanction imposed, the Employer states the Worker did not have his Private Security Authority (PSA) licence.  The Employee Relations department of the company contacted rostering on 20/02/2023 enquiring if there was any luck with a change of site for the Worker and rosters responded that they could not assist as he did not have his PSA licence. 

On 21/02/2023 Employee Relations again sought sites that might be suitable for the worker given the licencing situation and two sites were identified and the Employer sought his expression of interest in either of those sites.  The Worker responded by email on 22/02/2023 and indicated a preference for a location nearer to the city centre.  The Worker also confirmed he was going to do the door security test the following Saturday and he was going to apply for the PSA on Monday. 

On 23/02/2023 the Worker emailed seeking a covert position as specified in his contract and indicating he would have no problem working as a covert agent anywhere the company needs him.  A response issued from the Employer the following day thanking him for the update on his licence and identifying the duty currently available as static guarding only.   The Employer emailed a letter to the Worker on 24/02/2023 clarifying to the Worker the status of his employment i.e., that he had been formally removed from his covert operative position based on their specific client site.   

The aforesaid letter set out to the Worker that there were no other covert operative positions currently available, and he was offered three security officer static sites, each one of which would require him to apply for and receive his PSA licence.  The letter requested confirmation from him of his intention to apply for the PSA licence followed by acceptance of one of the three roles offered.  The letter sought his response by close of business on Monday 27/02/2023 and indicating that should there be no change in circumstances by that date the Employer HR team would proceed with the off-boarding process providing the relevant notice period.

The Worker replied on 26/02/2023 stating his preference was for a covert role and while no such role was available, he was satisfied to temporarily take up one of the posts offered although it had been explained to the Worker that this would not be possible until he acquired his valid PSA licence.

The Employer wrote again on 10/03/2023 acknowledging his email of 26/02/2023 and noting the Worder’s assertion that his PSA application was made on the same day.  The letter acknowledged that while the Worker’s preference was for a covert post that he was satisfied to take up a static post, subject to its continuing availability and PSA licence.  The letter indicated that while no covert positions were available, he could of course apply when there would be and such application would be considered.

A further letter issued to the Worker on 06/04/2023 from the Employer referring to their letter of 10/03/3023 and seeking a response and reiterating that which had been covered in previous correspondence of 10/03/2023.  The Worker emailed a response to this and stated he had sent all his documents to the PSA, and he had applied for Garda vetting.

The Employer states no further communication was received from the Worker until 11/04/2023 when he resigned. 

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.  

There was no case made out at hearing by the Worker of a defect in the management of the investigation into the complaint against him or the subsequent disciplinary hearing.  The Worker raised no procedural issue about the conduct of the aforesaid processes.  Rather, what the Worker expressed his dissatisfaction with was the sanction imposed on him albeit he did concede the sanction could have been up to and including dismissal. 

There were sanctions the Worker would have put forward as alternatives but he was unable to express those preferences as his appeal was not heard. 

It is an inescapable fact that due to reasons outside the control of the Worker he was denied the opportunity to have his appeal heard against the sanction imposed on him by the Employer. 

I am mindful of the observations of one of my colleagues regarding the importance of an appeal in ADJ-00000381 as follows:

“An appeal is not just an afterthought or a procedure that must be completed as a matter of course.  It is a very important part of the disciplinary process and the greater the sanction that has been imposed the greater its importance.  An appeal allows a dismissed employee the last chance to make their case, highlight any mitigating factors and seek protection for faulty proceduresor disproportionality of sanction.” [emphasis added]

However, it is another inescapable fact that the Worker was removed from the client site by his own actions.  It was the aforesaid actions of the Worker that necessitated an investigation into his conduct and a subsequent disciplinary procedure in the first instance. 

Notwithstanding, it is regrettable that the Worker was denied the opportunity to have his appeal against his sanction heard.  The sanction imposed on the Worker was such that it meant that he could not work in any of the other positions offered subsequently by the Employer as he did not have his PSA licence or his Garda vetting and there were no other covert positions available.  So, in effect he could not work at all, and I have considered whether the Employer was even aware of this fact when the sanction was imposed.   

The opportunity to have his appeal heard would have afforded the Worker the chance to explain the implications of the sanction on his specific individual personal circumstances in view of his PSA and Garda vetting status and he might have persuaded the person hearing the appeal to consider alternatives for example suspension without pay for a period of time or any other sanction from the suite of sanctions outlined in the disciplinary policy. 

I am satisfied the Employer did everything possible to provide the Worker with work as a static guard in a number of sites, but he did not have his PSA licence and his Garda vetting had not been undertaken.  The Worker ceased all communication between 13/03/2023 and 11/04/2023 and tendered his resignation on 11/04/2023.

My recommendations take into account the submissions made both oral and written.  My recommendation in terms of compensation in this matter takes into account a number of factors including the fact that the sanction was imposed on the Worker arising out of his own actions in the first instance.    

I have taken into account the denial of the Worker of his right to have his appeal heard against the sanction imposed.   I acknowledge this denial of appeal hearing was by accident rather than by design on the part of the Employer and I make a recommendation hereunder regarding measures to prevent such a reoccurrence. 

I have taken into account the implications of the sanction imposed on the Worker in the context of his particular circumstances i.e., no PSA licence and no Garda vetting undertaken although I am of the view that a certain amount of responsibility for these matters resided with the Worker and the onus was on the Worker to expedite these matters from the commencement of his employment with the employer on 30/05/2022.   

I have duly considered and incorporated into my recommendation the relatively short service of the Worker in the employment of the Employer. 

Taking into consideration all the circumstances set out above I recommend hereunder. 

Appeal of disciplinary sanction denied;