Complainant

Respondent

Parties

Noel  Barron

Orbit Security Limited

Act

Complaint Reference No.

Date of Receipt

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

CA-00042222-001

29/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00042222-002

29/01/2021

The complainant Noel Barron commenced employment with Orbit Security Limited on September 25th,  2014, as a security guard and normally worked at Letterkenny IT (LYIT). 

The precise circumstances and actual date of the termination of his employment form part of the case below.

There had been a separate dispute between these parties regarding alleged outstanding leave entitlement, underpayments of wages etc. and which had been the subject of meetings, correspondence from the complainant‘s solicitor and a reference to the WRC, which is separate to this complaint but was heard on the same day. (See ADJ 29601).

The complainant gave his evidence to the hearing on affirmation.

On January 16th, 2020, the complainant received an e-mail from the respondent stating that the respondent, Orbit was merging with another company, Superior Security.

The following day, the complainant was working in LYIT campus and saw Michael Mallet (MM), Operations Manager of Orbit Security outside the front door. The complainant said in evidence that MM told him that he (MM) and Michael Hilferty (MH) CEO of the respondent were out for a meeting about a merger of Orbit with Superior Group.

On January 20th,  MH had arrangedameetingwithOrbit employeesin LYIT.MM also requested that the complainant provide two copies of his PSA licence for his file.

MH then approached the complainant, and they had a cordial exchange. He asked MH about the meeting on January 20th, 2020, about the merger and who would be responsible for the payment of monies due to him. MH reacted badly to this, waving his hand at the complainant, and telling him not to raise that issue at the meeting, as it was simply an ‘information meeting’.

This meeting ended withMH slapping the complainanton the back in a very dismissiveway saying, "do your job" and they both walkedoff intothe receptionareaat the front desk. However, thecomplainant returned to the two men to them and said that this had gone on long enough and that he was going to raise the issue of what he was owed at the meeting.

MH turned towards the complainant with his arm outstretched and pointed at the complainant saying, "you are going to be sacked". The complainant turned to MM and asked him if he had heard the comment.

On February 5th,  2020, the complainant received an e-mail from respondent Accounts Department stating that MH had a meeting with his solicitor on Monday regarding all his issues and in relation to an incident on January 17th which states that "the investigation regarding the incident is ongoing". This conveyed a threat of disciplinary action to the complainant.

On February 14th, the Complainant submitted a spreadsheet with outstanding hours owed from 2019 and earlier (the subject of a separate complaint, ADJ 29601)

On March 6th,  2020, the respondent respondedto e-mail of February 14th, 2020, with regard the outstanding hours owed.

On March 12th  2020, the Government ordered the closure of schools, colleges, and public places as part of public health measures related. This resulted in the complainant, a ‘static guard’ being laid off as the respondent only conducted mobile patrols at night on the LYIT premises.

Then on April 3rd,  2020 the complainant received on e-mail from MM, Operations Manager, Orbit confirmingthat as of April 1st 2020 Orbit Security Limited was ‘joining forces’ with Superior Group.

The complainant says that he became aware of work in LYIT resuming and of the re-engagement of one of his former colleagues. However, he was not invited to return to work.

He attended a meeting with Chris Tierney and Conal Kelly of Superior Group who he understood had taken over the contract at LYIT on September 2nd  2020 and raised a number of questions and a follow up meeting was arranged for  September 9th, 2020.

But on September 10th, 2020, the complainant was requested by Mr. Hilferty tomeet him at the Mount ErrigalHotel for a discussion.Thecomplainantwas in the car park walking towards the front door andMH drove up and put his arm out the windowwith a letter in his hand and told the complainant to take it.

The complainant confirmed in his evidence that he was told it was his redundancy letter, however MH did not actually give it to him. He then shouted, "you’re getting one in the post, you’re fucked".

However, the witness said the letter never arrived in the post either and he only became  aware of it in the course of the separate WRC hearing involving Superior Security Ltd (ADJ 32289).

Similarly, the witness recalled that in the course of that hearing Superior gave evidence of it having been told of a letter which Orbit said it had sent to the complainant terminating his employment on March 30th, 2020.

The witness confirmed that even though it had been produced in evidence in relation to ADJ 32289 he had never received any such letter and the first he heard of it was at that hearing against Superior in March 2022, some two years after it was alleged to have been sent.

He arranged a meeting with Chris Tierney of Superior Group on September 11th, but Mr. Tierney said he forgot about it and would reschedule later. On September 15th, 2020, the complainant again e-mailed Conal Kelly with questions regarding a follow up meeting.

There was no response to that e-mail nor any correspondence from Orbit. Security started back in the LYIT in September 2020 and the Complainant became aware that he was replaced by a female employee who was working with Superior and two former Orbit employees who had resumed their former positions.

On October  6th, 2020 the complainant's solicitor wrote to Mr. Hilferty of Orbit and Conal Kelly and Chris Tierney of Superior Group  via post and e-mail requesting confirmation in an attempt to establish what his employment status was.

Not having received a reply it was at that point he instructed his solicitor to lodge a complainant in the WRC.

The respondent did not attend the hearing.

(The respondent was contacted by the WRC Case Officer on the morning of the hearing and apparently, the respondent intimated that he would be seeking an adjournment as he had not arranged legal representation.

However, he did not make any such application. The case was heard by means of the Webex platform online and he had been given the log in details.)

Aspects of the narrative in this case are complicated.

They are complicated initially by the difficulty in establishing the precise relationship between Orbit Security, the complainant’s employer of some six years before these events, and Superior Security which became a factor at some stage around April 2020.

It is clear that Superior took over the contract previously operated by the respondent at LYIT, (although the precise circumstances are not) and it also appears that Mr. Hilferty, the complainant’s employer entered into a working relationship with Superior, the precise status of which is unclear.

While there are some elements in the case that might give rise to consideration of whether there had been a Transfer of Undertakings, in fact no complaint was made under those Regulations.

There were separate complaints against both companies, Orbit the complainant’s employer and the respondent in this case, and Superior, which successfully argued in ADJ 32289 that it had never employed the complainant and indeed, asserted that it had been told that the complainant’s employment had been terminated, (referring to the disputed letter of March 30th, 2020, which the complainant says he never received and to which I return below).

I find the complainant’s evidence credible on this specific point and do not believe he was sent any such letter at the time. (As will be seen below, further doubt will be cast on its authenticity by the subsequent actions of Mr. Hilferty.)

It will also be seen that in ADJ 32289 there was direct evidence from the respondent Superior, that although there had been some talk of a ‘joint venture’ in 2019 and again in March 2020 nothing had come of it. Again, the credibility of this contention is hard to verify.

It is also clear from the document sent by the respondent to its employees  on January 6th referred to above and submitted in evidence that while it contains the heading ‘Merger’ the body of the letter refers only to Orbit being ‘in the process of merging’, whatever that meant exactly.

The precise situation is, as already noted not clear, apart from Superior’s evidence in ADJ 32289 that nothing came of it.

The precise truth of this is not directly relevant to the complaint against this respondent.

A number of things are clear. As business returned to something approaching normality in September 2020 (and for some time before on a limited basis involving mobile patrols only) Superior Security found itself carrying out the contract which had previously been discharged by this respondent. And while some of the complainant’s former co-workers were fortunate enough to be brought back to work, he was not.

Whereas elements of the narrative are unclear, and after the initial pandemic lockdown,  this leads to the bizarre events of September 10th, 2020.

On that occasion the complainant says in his evidence that Mr. Hilferty purported to give him a notice of redundancy, but in the event never actually transmitted it, either in the course of that exchange, or subsequently in the post as he said he would.

On its face, this rather decisively indicates that Mr. Hilferty at that time regarded the complainant as continuing to be in his employment.  Although this is the same Mr. Hilferty who, (according to the evidence of the respondent in ADJ 32289) had sent a letter to the complainant as follows on March 30th, 2020.

DearNoel,

IwouldliketoinformyouthatwithimmediateeffectwewouldbeterminatingyouremploymentwithOrbitSecurity Ltd.Thisdecisionhasbeentakenduetogrossmisconductonyourpartinreferencetotheincidentdated 17/01/2020attheLYITinvolvingmyselfandyourself.Further,Icanconfirmthatthedecisiontodismisswasmade withimmediateeffect,fromdate,withoutnoticeorpayinlieuofnotice.

As such, in accordance with that decision, your last date of employment with Orbit Security Ltd. was 27th of March 2020.

Thatsaid,youremainboundbyanypost-terminationconfidentialityobligationsandrestrictivecovenants,until theseexpireunderthetermsofyourcontractofemployment.

The decision to dismiss was made following a full investigation and disciplinary meeting in which you were given an opportunitytorespondtotheallegationsofgrossmisconduct,heldon31stJanuary2020

As such having reviewed the witness evidence and that allegation has been proven against you, resulting in the decisiontosummarilydismissyoufromyourposition.

ThankingYou.

Yours Sincerely

Martin Hilferty

CEO

Leaving aside that there was no evidence before the hearing of any ‘full investigation and disciplinary meeting’ as referred to in the letter, there is also the affirmed evidence of the complainant that he never received this or any letter terminating his employment. (There is also the coincidence that this purported termination was to take effect around the time Superior took over the contract at LYIT, but that does not have a bearing on the complaints.)

But the biggest challenge to the credibility of this letter is why Mr. Hilferty, if he had terminated the complainant’s employment with effect from March 27th, 2020, would have found it necessary to make him redundant on September 10th, some five and a half months later.

Based on the evidence presented at this hearing, and the high improbability that the letter of Mach 30th was contemporaneously sent to the complainant I make the following findings.

The complainant remained an employee of Orbit Security until at least September 10th when he was told that he was to be made redundant. As a matter of logic and law, if his employment had terminated on March 27th there would be no need to make him redundant.

Whether this proposed redundancy had some connection to the complainant’s attempts to engage with Superior on September 2nd and 9th is difficult to say. It is unlikely to be a coincidence.

As late as October 10th, 2020, presumably not having received anything further on the redundancy the complainant’s solicitor wrote again both to the management of Superior (but also to Mr. Hilferty who, according to the complainant’s evidence was now an employee of Superior) seeking to establish the complainant’s employment status. 

It is difficult therefore on any precise basis to determine the date on which the complainant’s employment terminated but based on the threatened redundancy notice on September 10th and factoring in a period of notice I find that the employment terminated around the end of  September 2020.

It is clear that the complainant never worked again for Orbit Security.

I also find that in the circumstances of the termination there was a total absence of any recognisable and required fair procedure, whether for the purposes of redundancy or any other termination of employment, and therefore while it is not easy to determine when precisely it occurred it is very easy to conclude that the dismissal was entirely unfair and in flagrant breach of the Unfair Dismissals Act.

In assessing the complainant’s losses attributable to the termination, I consider the following.

There is difficulty in determining the precise trading position of the respondent, but I can only proceed on the basis of a finding on the merits of the complaint before the tribunal, in the absence of any appearance by the respondent.

In relation to Complaint CA-0004222-002 under the Unfair Dismissals Act his losses attributable to the termination are €3,180 per month. Having regard to what would constitute ‘just and equitable’ compensation I would assess it at six month’s loss of income; €19,082, subject to what follows regarding mitigation.

In relation to Complaint CA-0004222-002 under the Redundancy Payments Act, it should be noted that Section 7 of the Unfair Dismissals Act defines ‘financial loss’ for the purposes of that Act as including. 

‘… any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.’ 

The complainant’s rights under the Redundancy Payments Acts are to be calculated based on his service from September 25th, 2014, until the end of September 2020, approximately so entitlement to notice would bring it to around six years.

On the basis of a weekly wage of €795.11 as appears on the complaint form this would create an entitlement to a redundancy payment of €10,336.43

The Unfair Dismissals Act (Section 7) sets out the various factors to be considered in making an award of compensation.

It provides for an Adjudication Officer (and the Labour Court) to consider such redress as is considered appropriate ‘having regard to all the circumstances.’

The requirement to have regard to all the circumstances is repeated in Section 7(1)(c) in relation to the assessment of what will constitute ‘just and equitable’ compensation.

How ‘all the circumstances’ is to be assessed may be gleaned from reading Sections 7 (2) (a) to (f) and these six itemised criteria include the conduct of the employer (including their compliance with fair procedure), and the conduct of the employee and their contribution (if any) to the dismissal.

Section 2(c) deals with the requirement placed on the complainant to make efforts to mitigate his loss in assessing the level of compensation.

The complainant gave evidence of his attempts at mitigation. While he made some effort to do so he pointed out that Superior had something of a monopoly on security jobs in the area and the pandemic was still a factor.

Of course, efforts at mitigation should not be confined to seeking jobs in the complainant’s traditional area of employment (and, in his evidence he did mention applying for a job as a driver). These efforts were insufficient, and I factor them into my award below.

Nonetheless, in measuring the weight to be attached to all of these various components of the termination in Section 7 of the Act, the requirement placed by the statute on an Adjudicator to have regard to ‘all the circumstances’ (emphasis added) provides an overarching framework and is required to be taken seriously.

In this case, the treatment of the complainant and the manner of the termination of his employment was deplorable and was compounded by a total disregard for his constitutional rights to a fair procedure. This stands out as the most significant of those circumstances required to be evaluated by the statute and is a particular breach of Section7 (2) (d) and (e).

Therefore, in assessing ‘all the circumstances’ as required by the Act, the inadequacy of any efforts by the complainant to mitigate his loss must be properly weighed in the context of the full requirements of Section 7.

There is nothing in the Act to suggest that the significance of an employee’s failure to mitigate should be elevated beyond any of the other five criteria set out there. Indeed, given that three of the five relate to the employer’s conduct and conduct of the termination process, a contrary case could be made, and on the facts of this case it would succeed.

I assess the complainant as incurring actual and prospective loss of €19,080 for his loss of wages under the Act, and I discount this by approximately 50% to take account of the inadequacy of his efforts at mitigation, bringing the sum under this assessment to €10,000.

I assess ‘the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973’ in this case as being €10,336.43.

I therefore award him a total of €20,336.43 in respect of complaint CA-00042222-001. Given that finding, I find his other complaint CA-00042222-002 to be not well founded.

For the reasons set out above Complaint CA-00042222-001 is well founded and I award the complainant a total of €20,336.43 in respect of the losses attributable to the termination.

Complaint CA-00042222-002 is not well founded.

Unfair dismissal, redundancy.