Complainant

Respondent

Parties

Allan  Owuorr

Key Guard Security Ltd

Complainant

Respondent

Anonymised Parties

Representatives

Stewart Reddin                                          Dublin South Citizens Information Service

Karen Kennedy (General Manager)           Patricia Wallace (HR Manager)

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-00047245-001

18/11/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant was represented. At the outset, the Complainant made an Affirmation concerning the veracity of his evidence. I was provided with a comprehensive submission dated the 13th day of July 2022 and the  Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form dated the 18th of November 2021.  I was provided with supplemental  documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent and I made inquiries on my own behalf.

The Complainant alleges that he was Unfairly dismissed when he was removed from the Respondent payroll in and around September 2021 without notification.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent entity was represented by the HR Manager and the General Manager. The Respondent provided me with written submission in and around 21st of November 2022.  I have additionally heard from a number of witnesses for the Respondent though it was made clear that some evidence could not be adduced as key decision-making personnel had since left the company. All the evidence was heard following an Affirmation. The Respondent witnesses were cross questioned by the Complainant representative.

The Respondent rejects that the Dismissal herein was Unfair. The Respondent makes the case that the Complainant had breached the terms of his Contract of Employment when he failed to notify the Respondent that he was leaving the country for three weeks at a time that he was on their books, albeit they were not providing him with any work.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant started working with the Respondent company in and around the 17th of December 2019. The Complainant was engaged as a static security officer and was expected to work a forty hour week at any one of the client sites wherein security work had been contracted out to the Respondent company.

I understand that the Respondent company might have up to 150 security staff across 30 client premises.

I understand the Complainant generally worked the day shift and after some time became assigned on a weekly basis to a client premises in Ballsbridge. I understand that everyone was happy with the arrangement and the Complainant was a good employee in this context.

When the Covid pandemic hit the Respondent company was obliged to avail of the TWSS and EWSS schemes to keep their employees remunerated despite the fall off in available work. I understand that the complainant might have been cut back to as few as eight hours a week on his site as most of the Employees in the place of work now worked form home.

The Complainant accepts that on the 16th of June an unfortunate series of incidents occurred in the workplace. The Complainant arrived nearly an hour late to open up the premises (as the key holder). A sole employee was waiting for him, and he gave her access to the building. Unfortunately, the Employee had not moved away up to her office when the Complainant was overcome with nausea and threw up in a sink in what has been described as the Sick Bay.  The Employee was aware this had happened and asked the Complainant to leave, which he did.

Not surprisingly the client contacted the Respondent company and requested that the Complainant not be sent back to the site. When I specifically asked him about this, the Complainant agreed that he had expected this would happen. On balance, therefore it is accepted that the Complainant needed to be replaced on this particular site, and that further or other work needed to be obtained for the Complainant.

One of the significant features of this case is the lack of paperwork so that I have very little corroborative evidence of what the parties were saying to one another. In addition the Complainant’s chief contact point in the Respondent company  - a MrMF was not available to give evidence and I had to rely on the propositions being put forward by the two witnesses who were available but who did not have first-hand experience.

What I do have is an email dated the 24th of June 2021 from MF to the Complainant stating that he cannot return to the previous position and that “If anything comes up, I will let you know”.

After this there are two lines of evidence. The Complainant says he rang MF often to see if work was available and he was told that there was not. The Respondent witnesses say that the Complainant was asked to cover shifts but was not available to do any work asked of him. There is a suggestion that he might have done a shift in July but the Complainant says he did not. I do note that as the pandemic was still an issue there was limited work available for all the security officers on the Respondent books. It is also noted that the complainant was receiving up to €300.00 per week through the EWSS scheme.

This situation continued from the end of June through all of July and into the middle of August 2021.

The Complainant received a fortnightly payment on the 20th of August in the usual way.

Unexpectedly, the Complainant needed to travel to Kenya after the death of a family member. He left on the 30th of August without notifying his Employer that he was not available for work should work be offered to him. I questioned the Complainant very closely about the rationale for not telling his Employer that he was leaving the country and in particular given that he would be away for three weeks. A clear explanation was not forthcoming. The Complainant certainly expected to be remunerated in the usual way while he was gone. In fact, his next date of pay was the 3rd of September with another one due on the 17th of September.

When the Complainant returned from Kenya on the 23rd of September he realised he had not been paid on either of the two dates and contacted his Employer. By way of email reply dated the 24th of September 2021 the Complainant was informed by IC (a HR witness unavailable to give evidence) that as he had not worked for them for some time, he had been removed from the payroll system. I am satisfied that the complainant was removed from payroll as of the 3rd of September 2021.

A more fulsome letter followed up on the 27th of September from Ms TW who was available to give evidence. In the first instance, the letter appears to rely on a disciplinary issue concerning the vomiting incident which had occurred on the 16th of June. On this point I note that nothing was said to the Complainant about this incident in the intervening three months.

Secondly, TW states that the Complainant had refused to be rostered for work in the intervening period. I cannot test the veracity of this statement as MF is unavailable to give evidence.

Lastly, the Employer has asserted that the complainant breached the Employment Contract by absenting himself without explanation for three weeks. Such an unauthorised absence is grounds for dismissal and is particularly worrisome in circumstances where the state was sub venting salaries at that time.

The evidence provided to me was that the Employer became aware of the fact that the Complainant had gone abroad (by way of a foreign dial tome when his phone was rung) and had immediately taken him off payroll. This presumably happened sometime between the Complainant leaving the country on the 30th of August and the next date for salary payment – the 3rd of September.

The letter of the 27th of September appears to me to be an attempt to explain and excuse a decision that had been made and for which there was no real justification. The Complainant had been told on the 24th of September that “As you have not worked for quite some time you are no longer in our payroll system”.

It is clear that in his absence and without reference to him one way or another the Complainant’s employment was unilaterally terminated. It may well be that there was no work for him or that he had indeed breached the terms of his Contract of Employment but either way he was entitled to be talked to and be given an opportunity to have his say. This was denied to him and in the circumstances, this was an Unfair Dismissal.

In looking at the issue of mitigation and financial loss I am satisfied that the complainant was lucky enough to get another security job quite soon after his employment with the Respondent was summarily terminated.

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

CA-00047245-001 The Complainant was Unfairly Dismissed and is entitled to redress in the form of compensation for financial loss in the amount of €1,800.00