ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00025304

Parties:

Complaint:

Date of Adjudication Hearing:  23/03/2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint pursuant to Section 8 of the Unfair Dismissals Acts 1977-2015 was referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 6th November 2019.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  I commenced hearing this complaint in Lansdowne House on 14th September 2020.  Both of the Parties were in attendance and self-represented with a HR Manager attending on behalf of the Respondent.  The fact of dismissal was not in issue and it was the Respondent’s position that the Complainant had been fairly dismissed for gross misconduct.  As the burden/onus of proof rested with the Respondent and the HR Manager had attended at the hearing without any witnesses or documentation supporting the dismissal process, I adjourned the matter to enable same.  When the hearing resumed remotely on 9th November 2020, there was no appearance on behalf of the Respondent.  As this Adjudication Officer could not be satisfied that the Respondent had been properly notified of the hearing details, the matter was further adjourned. 

On the instructions of this Adjudication Officer, the WRC wrote to the Respondent confirming that the matter would be relisted for a face-to-face hearing and requested supporting documentation including any submissions being relied upon, Contract of Employment, Handbook / Disciplinary Procedures, minutes of any investigation, disciplinary and appeal meetings and correspondence pertaining to the termination of the Complainant’s employment subject to this complaint.  The matter then went into abeyance pending the introduction of the Workplace Relations (Miscellaneous Provisions) Act 2021 to meet the Supreme Court’s requirements in Zalewski 2021 IESC 24.  No response was received by the Respondent aside from an application to postpone the next hearing date of 30th November 2021 for a Covid related reason which was granted internally.

A further face-to-face hearing was scheduled for 23rd March 2022.  Again there was no appearance on behalf of the Respondent and none of the documentation requested had been received.  I satisfied myself that a letter dated 10th February 2022 had issued to the Respondent at the correct address, confirming the venue, date and time of the hearing and was not returned undelivered.  I also confirmed that the Respondent had not contacted the WRC to indicate any difficulty attending the hearing.  I was satisfied that the Respondent had been properly notified particularly given recent contact with the WRC to postpone the last hearing date.  I allowed 30 minutes to elapse to enable the Respondent to attend before commencing the hearing.  The Respondent has not made any further contact with the WRC or proffered a reason for its non-attendance at the hearing.

This hearing was also held in public pursuant to Section 8(6) of the Unfair Dismissals Act 1977, as substituted by the Workplace Relations (Miscellaneous Provisions) Act 2021.  The Complainant furnished limited documentation comprising of the correspondence he had been furnished.  He was made aware that the Parties’ names would be published within this decision.  All of the evidence, documentation and oral/written submissions submitted have been fully considered herein. 

Background:

The Complainant was employed by the Respondent as a Security Officer until he was dismissed for gross misconduct on 30th October 2019.  He was paid approximately €500 gross per week.  He maintained that his dismissal was procedurally and substantially unfair contrary to Section 6 of the Unfair Dismissals Act 1977 and sought an award of compensation.  Although the Respondent had contended that the Complainant had been fairly dismissed for gross misconduct at an adjourned hearing, there was no attendance on its behalf at the substantive hearing to defend this complaint.

Summary of Respondent’s Case:

The Respondent did not attend at the hearing and hence no evidence was adduced on its behalf.  Nor were any submissions or requested documentation supporting the dismissal process received.  At an earlier hearing which was adjourned, the fact of dismissal was confirmed as not being in issue.

Summary of Complainant’s Case:

The Complainant gave evidence under affirmation outlining the factual background leading to his dismissal by the Respondent in terms of his written submissions and supporting documentation submitted.  He confirmed that he had commenced working as a Security Officer for a Security Company on 12th December 2007, which would have transferred to the Respondent under TUPE.  At the time of his dismissal on 30th October 2019, he was paid approximately €500 gross per week. 

The Complainant confirmed that he had not been subject to any disciplinary action during his twelve years of service until the disciplinary action giving rise to this dismissal.  At the time of his dismissal he was working on a site owned by a Third Party and Client of the Respondent.  He explained that his personal circumstances had become difficult in February 2019, when his wife had delivered a baby.  As her ability to care for their children was impacted by an ongoing medical condition, he was required to provide extra care for the family.  As a consequence, he had been suffering from fatigue.

The Complainant was called to a meeting on 13th June 2019 with his Contract Manager.  It was alleged that during a chance meeting in a garage with his Site Supervisor, one of the Client’s employees had reported that he had dozed off whilst on duty on 5th June 2019.  He did not contest this, apologised and explained that this could have happened due to his extra tiredness.  He received a written warning for ‘dozing off/nodding off’ on 5th June 2019, to remain on his file for 12 months.

Thereafter, the Complainant believes that he was subject to CCTV monitoring by the Site Supervisor.  This was based on the fact that he had been chastised for sitting on a couch on a bank holiday when nobody was around and could have seen him.  He said that he had sat on the couch for ten minutes to get some rest.  He had also expressed a view that CCTV cameras are for health and safety and should not be used to monitor his performance or behaviour and this made him feel uncomfortable.

The Complainant believes that the Site Supervisor continued to monitor him via CCTV as he would inform him verbally or via email what was done incorrectly.  Sometime later, he had sought to book annual leave for 5th and 6th October 2019.  He received an email chastising him for double-booking.  He checked the roster and there was no double booking but to avoid further argument, he dropped his request for 5th October 2019.  On 7th October 2019, he received a phone call from his Contract Manager stating that he had “bad news” for him and he was invited to a meeting on 10th October 2019.  His request for the meeting to be rescheduled as his wife had a medical appointment was declined.  He attended the meeting where it was alleged that he had been sleeping whilst on duty and he was suspended.  However, no details, times, CCTV footage or witness evidence supporting this allegation was ever provided.  He said that he could not recall falling asleep and explained his personal circumstances.  He had sought to furnish a medical certificate from his GP stating that he was unfit to work owing to fatigue but was informed that it was too late as “the damage was done”. 

By letter dated 24th October 2019, the Complainant was called to a disciplinary meeting the following day with his Contract Manager and a HR Representative was present.  It was alleged that he had fallen asleep on a number of occasions whilst on duty at the Client’s premises.  Again, no evidence was provided to support these allegations.  The Complainant pointed out that all of his duties had been properly carried out and he had never missed a routine check, alarm, phone call or patrol.  It was contended that his personal difficulties could have been accommodated by taking some time off, changing shifts or reducing his hours.  The Complainant maintained that these options had never been offered to him and objection had been taken when he sought to take a paid holiday.  He would never have risked his employment in the knowledge that there was a solution.

On 4th November 2019, the Complainant received a letter dated 30th October 2019 from his Contract Manager confirming his dismissal for gross misconduct and stating: “We gave you the opportunity to address the most recent incident of falling asleep on the (Client’s) site.  You said in your response that even if you were asleep it was only for 5 mins…  On addressing four more separate occasions where you had fallen asleep on duty, on the 13th & 14 September, and twice on the 26th August, you said you have never done this before, and that your personal situation keeps you awake at night.  We acknowledged your personal situation and discussed all the options that were available to you, such as bringing the situation to the attention of your Contract Manager and or Supervisor these included taking some time off, changing shifts or reducing your hours.  During the course of the investigation / disciplinary process it was established that the company’s dissatisfaction with your conduct was well-founded on a number of occasions.  According to our Company and Trade Union Agreement with SIPTU, falling asleep on duty is considered misconduct.  Having taken all the facts and circumstances into consideration, I have decided to terminate your employment with G4S Secure Solutions Ireland Ltd.”  The letter also confirmed that he would receive pay in respect of his period of suspension.

The Complainant contends that this letter was misleading and incorrect.  He maintains that the Respondent had been aware of his personal difficulties and none of the supports outlined had been offered to him.  There had also been three occasions within the past year where he had to remain up to 17 hours on duty after his 12 hour night shift had ended when another security officer had failed to show up for work.  He had also complained to his Site Supervisor on multiple occasions about difficulty taking annual leave and had been told that there was no cover.  He appealed his dismissal on the same date outlining his grounds including the fact that he had not been issued with a verbal warning first; he was never offered the options of taking some time off, changing shifts or reducing his hours and when he presented a medical certificate this was rejected; whilst he could not recall, he did not discount the possibility that he could have fallen asleep on occasion and attributed this to his personal circumstances.  He also took issue with the fact that no complaint was made by the Client at the time and he was not furnished with any CCTV footage showing him asleep.  After twelve years of service, he was not afforded fair procedures or a sanction short of dismissal such as a final written warning and the decision to dismiss him did not have regard for his long service and his difficult personal circumstances.  He also complained that he had not received his proper pay for the period of suspension aside from €444 but had not referred a complaint to the WRC in this respect.

The Complainant submitted this complaint to the WRC on 6th November 2019.  Following an appeal hearing on 13th November 2019, he received a letter dated 22nd November 2019 upholding the decision to dismiss him stating:  “To summarise the key reasons for the decision below, on 13.06.2019 you were issued with a Written Warning for “Sleeping on Duty”.  This warning was accepted and there was no appeal to the sanction given.  Having met with and discussed the matter with your contract manager, the issuing of the written warning (and not a further level of sanction) was given in the hope that there would not be a repeat offence.  No short or long term underlying issues were given for this offence.  Rather, at that stage it appeared it was a once off offence.  Unfortunately, as outlined to you in the investigation on 25.10.2019, there were another four occasions since the written warning was issued that you were found to be asleep on duty.  All of these were witnessed by and are known to the client with whom we provide Security Services where you have been working.  As I pointed out on several occasion during our meeting, one of the substantial reasons outlined in the Company / Union agreement with all Security Officers for Gross Misconduct is that of “Sleeping while on Duty”.  Having fully reviewed all material supplied and investigated all matters raised I regret to inform you that your appeal has been unsuccessful on the grounds set out.  This decision has not been taken lightly but it is felt that the level of the offences leave little option but to take this action.”  The Complainant maintains that his dismissal was procedurally and substantially unfair, particularly as there was no consideration of his personal circumstances and he was not presented with any CCTV or other evidence of the allegations.

In terms of losses, the Complainant was unavailable for employment owing to a temporary disability and in receipt of Illness Benefit before finding another better-paid security position.  As such, he cannot demonstrate any “financial loss” within the meaning of Section 7(3) of the Unfair Dismissals Act 1977.  However, he seeks vindication in relation to the circumstances giving rise to his dismissal. 

Findings and Conclusions:

The Complainant complains that he was unfairly dismissed by the Respondent for gross misconduct on 30th October 2019.  It is not in issue that the Complainant was dismissed.  He had more than the requisite one year’s continuous service for referring a complaint of unfair dismissal under Section 2 of the Unfair Dismissals Act 1977 and his complaint was brought within the requisite six month time limit under Section 8 of the Act.  Section 6(1) provides: “Subject to the provisions of this section, 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(2)-(5) define the circumstances which do/do not constitute an unfair dismissal.  In relation to the burden/onus of proof, Section 6(6) provides: “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 8 provides for the referral of a complaint of unfair dismissal to the WRC.

There was no appearance on behalf of the Respondent at the hearing and no evidence was proffered in discharge of the burden/onus of proof on the Respondent to show that the dismissal was not unfair.  It is not in issue that the Complainant was dismissed by the Respondent.  In the absence of any evidence discharging the burden of proof, it follows that the Complainant’s dismissal by the Respondent was unfair without any requirement to further assess the evidence adduced.

Decision:

Section 8 of the Unfair Dismissals Act 1977 (as amended) requires that I make a decision in relation to a claim of unfair dismissal, consisting of a grant of redress in accordance with Section 7 of the Act.  For the aforesaid reasons, I find that the Complainant was unfairly dismissed by the Respondent.  Section 7(1) sets out the various forms of available redress including reinstatement, re-engagement and financial compensation as deemed appropriate having regard to all the circumstances.  Section 7(1)(c)(i) provides for compensation of up to 104 weeks remuneration in respect of the employment from which an employee was dismissed for “financial loss” attributable to the dismissal.  Section 7(1)(c)(ii) provides: “(ii) 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,…”  Section 7(3) provides that: ““financial loss”, in relation to the dismissal of an employee, includes 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;”  As the Complainant has not incurred any “financial loss” within the meaning of the Act, I consider it appropriate to award him €2000, representing 4 weeks remuneration as being just and equitable in all of the circumstances.  The Respondent is therefore directed to pay the Complainant €2000 in compensation (subject to any lawful deductions).

Dated:   22/02/2023

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Word:  Dismissal for gross misconduct –Sections 2, 6, 7 & 8 of the Unfair Dismissals Act 1977 – burden/onus of proof to show fair dismissal rests with the employer - no attendance by Respondent