ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00038988

Parties:

Complaints:

Date of Adjudication Hearing:  11/10/2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 – 2015 and/or Section 6 of the Payment of Wages Act 1991   following the referral of the complaints  to me by the Director General, I inquired into the complaints  and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant contends that he was unfairly dismissed following an incident when he was deemed to have not been alert on his security duties.  He also contends that the Respondent failed to pay him appropriately for public holidays.

Summary of Respondent’s Case:

The Respondent provides security for clients and the Complainant was employed on a site for one of its blue chip clients.  It is the Respondent’s contention that the Complainant was fairly dismissed in circumstances where he was guilty of gross misconduct, having failed to be alert while on duty.  It is argued that the sanction was imposed following a full and thorough investigation and disciplinary process where the Complainant was afforded due representation and right of appeal. 

In February 2022, a complaint was received by Management that the Complainant was asleep on duty.  An investigation was carried out which led to a disciplinary hearing.  The Complainant first denied that he was not alert, then blamed others, stated that he had been a victim of other colleagues and then admitted that he was not alert, and stated that he was ill.  He was aware of the procedure for advising management when not fit for duty.  He stated that he was aware of this, but he took no responsibility.  It is argued that in accordance with Section 6(4) of the Act, the dismissal should be deemed not to be an unfair dismissal, when the reason for the dismissal was due to the conduct of the employee.

Case law was submitted (Looney v Looney UD83/1983) in respect of what a reasonable employer would do.  It is argued that in this case, the employer acted reasonably and conducted the process with due procedural fairness.  The outcome cannot be deemed to be disproportionate especially in the circumstances where the Complainant showed no remorse and where his conduct could jeopardise the reputation of the company who supplies security services to companies.

Regarding the Payment of Wages 1991 complaint, it is submitted that all wages properly payable were paid to the Complainant.

Summary of Complainant’s Case:

The Complainant was dismissed due to a one-off incident.  A colleague took a photograph of him without his knowledge.  The circumstance was that the Complainant became unwell during his shift and had his head in his hands for a short period during his shift.  It is argued that there was a predetermined decision to dismiss as the colleague who took the photograph, did so under the instruction of the supervisor.  It is argued that the termination of the Complainant’s employment was unnecessary and unfair in the situation where an alternative should have been put forward.    The steps followed were punitive rather than corrective. The sanction given was disproportionate. During the investigation and disciplinary process, it was obvious that the decision to dismiss had already been taken, as leading questions were put to the Complainant and evidence of bias shown.

Case law was quoted regarding predetermined decisions, biased process and disproportionate sanctions.

Payment of Wages Act 1991 – the Complainant contends that the Respondent failed to pay him wages properly payable to the extent of 38 hours between the period 6th June 2021 to 25th March 2022.

Findings and Conclusions:

CA-00050577-001 – Unfair Dismissals Act 1977

The Complainant was dismissed for failing to be alert on security duties. 

The applicable law

Section 6 of the Act provides:

“6 (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:

(b) the conduct of the employee…”

In deciding if the dismissal was not an unfair dismissal, it is not for me to establish the guilt or innocence of the Complainant, but rather consider whether the Respondent acted reasonably in the matter of the dismissal.  The Employment Appeals Tribunal held, in Looney & Co v Looney UD843/1984 that

“It is not for the Tribunal to establish the guilt or innocence of the Complainant, nor is it for the Tribunal to indicate, or consider whether we, in the employer’s position, would have acted as he did in the investigation, or concluded as he did..to do so would substitute our mind and decision for that of the employer…our responsibility is to consider against the facts what a reasonable employer would have done in the same position..”

In O’Riordan v Great Southern Hotels UD1469/2003, the EAT set out the appropriate test for determining claims relating to gross misconduct:

“In cases of gross misconduct, the function of the Tribunal is not to determine the innocence or guilt of the person accused of wrongdoing.  The test for the Tribunal in such cases is whether the respondent had a genuine belief based on reasonable grounds arising from a fair investigation that the employee was guilty of the alleged wrongdoing”.

In assessing the proportionality of the sanction, Noonan J. in Bank of Ireland v Reilly IEHC 241 stated:

“The question.. is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”.

In this instant case, I base my findings and conclusions on three key questions

 (1) Did the Respondent have a genuine belief based on reasonable grounds arising from a fair investigation?

(2) Was there a fair investigation? and

(3) was the penalty proportionate?

The evidence in this case shows that the Respondent had proof of the transgression of the Complainant, they carried out a full and fair investigation where the Complainant was afforded due process including the right of representation and appeal.  In relation to proportionality, it must be noted that the Respondent is engaged in supplying security services, and that the Complainant showed no remorse or acknowledgement for his transgression.  In all the circumstances, I find that he was not unfairly dismissed.  

CA-00050577-002 – Payment of Wages Act 1991

This claim appears to be concerned with the Respondent’s calculation of payment for public holidays where the shift stretches over a period pre and post public holiday.  In effect, the Complainant wishes the public holiday rate to be calculated taking into account overtime.  The Labour Court, on many occasions has found this to be an incorrect calculation and misinterpretation of the law in relation to payment for public holidays. In a recent case Bausch Healthcare Ireland Ltd t/a Bausch & Lomb- and – Daniel Hayden, DWT 2314 the Court found:

This Court has previously addressed the issue of the non-inclusion of overtime in the calculation of public holiday pay in the case of MCM Security Limited v Tom Power DWT0895 where it stated:

• “It is clear from the wording of both Regulation 3(2) and Regulation 5(1) that payment in respect of overtime is not reckonable in the calculation of pay for either annual leave and public holidays.”

Given the authority contained in the Labour Court decision above, I find the complaint in this instant case to be not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

CA-00050577-001 – Unfair Dismissals Act 1977

For the reasons cited, I have decided that the Complainant was not unfairly dismissed and his complaint is not well founded.

CA-00050577-002 – Payment of Wages Act 1991

For the reasons cited, I have decided that the complaint is not well founded.

Dated:   14th December 2023

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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