Complainant

Respondent

Parties

Ajibola  Bamindele

Synergy Security Solutions Ltd Synergy Security Solutions

Representatives

Shonagh Byrne SIPTU

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-00049525-001

05/04/2022

The Complainant was employed with the Respondent from 26th March 2003 as a Security Operative.

The Complainant worked with the Respondent from March 2006 and has an unblemished record.

The Complainant has diabetes. He was subject of a disciplinary hearing regarding an alleged incident on 1st December 2021 where a door was opened in a client premises. The Complainant admitted he urinated into a cup and threw this on a public roadway. The Complainant’s medical condition was the reason for his actions. He apologised and provided mitigating circumstances. He received a final written warning for the incident and was very stressed as a result.

Around the same time another issue arose, the Complainant’s union representative was on annual leave and had Covid-19. The Complainant was invited to an investigation meeting on 20th December 2021, which was rearranged to 22nd December 2021. This proceeded without the Complainant’s representative being present in his absence on 22nd December 2021. Siptu wrote and raised concerns regarding the application of the process. The Complainant was only paid salary until 30th December 2021. Payment was subsequently made until 11th January 2022 following further correspondence from Siptu as no representative was available.

The disciplinary hearing was rescheduled on 11th January 2022. The first incident arose due to the Complainant’s diabetes and this was being appealed. The Respondent was told this was due to the Complainant’s medical condition. The Respondent was aware of the Complainant’s medical condition when the second incident occurred. The Complainant was not well on the day of the second incident. He was stressed as a result of the first incident. He is required to take insulin a number of times per day. This is a strong mitigating factor and was not taken into account by the Company.

On 15th December 2021, the Complainant worked from 7am to 7pm with the Respondent. He had a flat tire and did not get to sleep as a result. He had a shift on 16th December 2021, which was cancelled by the company. On 17th December 2021, he went to work at 7pm. He was not feeling well due to his diabetes and took his medication. A demonstration was due to take place that night. The  Complainant was found asleep. The Complainant was dismissed from his post and suspended. He did not get the opportunity to explain he was sick.

No clear reason was provided to show why the Complainant was dismissed and how the decision had been reached. The letters issuing the warning, dismissal and appeal are all signed by Mr. Cullinane HR with no reasons provided. The Complainant submits the decision to dismiss was unreasonable, overly severe and disproportionate. The Complainant admitted what occurred and apologised. The procedures were unfair. The Complainant was requested to attend an investigation meeting on two day’s notice. This was not enough time. His representative emailed the company about this. She had Covid-19 at the time, and could not attend. The Company could have offered a lower sanction. The dismissal letter does not set out the reasons for dismissal which is unfair as the Complainant does not know why he was dismissed.

The Complainant has ongoing financial loss. He obtained another job at the end of April 2022, at a lower rate of €11.80 per hour instead of €13.75.

The Complainant relies on Concepta Brebner v Clann Mor Residential and Respite Limited UD1613/2014 and Frizelle v New Ross Credit Union [1997] IEHC 137 the High Court set out the following:

Where a question of unfair dismissal is in issue, there are certain premises which must be established to support the decision to terminate employment for misconduct:

…. should state the complaint, factually clearly and fairly without any innuendo or hidden inference or conclusion;

The Employee should be interviewed, and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment;

The decision of the deciding authority should be based on the balance of probabilities flowing from the factual evidence and in the light of the explanation offered;

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of the dismissal on the employee. Put very simply, principals of natural justice must be unequivocally applied.

The Complainant relies on Coughlan V DHL UDD1738 where the Court found that the sanction of summary dismissal was disproportionate and unwarranted and the Employer did not give due consideration to imposing an alternative and more proportionate sanction.

The Respondent employed the Complainant as a Security Operative from 1st July 2014 as a result of a transfer of undertakings.

On 17th December 2021 the Complainant was found asleep on duty.  The Complainant admitted it. This is a very serious matter and usually results in dismissal. Fair procedures were afforded in the disciplinary and appeal process, the Complainant was advised of his right to be represented by a Trade Union or legal representation. The Complainant’s previous disciplinary history was taken into account.

Two incidents occurred previously, one where the Complainant had breached Covid-19 rules. The Complainant was not pursued regarding non-compliance. The second incident took place on 1st December 2021 when a client reported a door was found open the following morning. The Complainant admitted he disposed of urine in a cup and threw the contents outside in a public walkway. The Complainant was represented in the disciplinary process by his Trade Union representative. He was given a first final warning.

The second incident occurred when the Complainant was on duty at the office of the Respondent’s largest client who employs 194 of their staff. A higher level of security was required that evening as there was a planned demonstration. The report of alleged sleeping on duty was provided to the Complainant who was called to an investigation meeting, which was postponed from 18th December 2021 to 21st December 2021. The investigation proceeded on 22nd December 2021 in the Complainant’s absence. The Complainant was suspended from the roster. The disciplinary hearing was postponed on three occasions, the hearing took place on 11th January 2022. The Complainant was dismissed on 23rd March 2022. An appeal was unsuccessful.

The Respondent say they acted as a reasonable employer in dismissing for sleeping. Fair procedures were given to the Complainant.

I have read and considered the submissions and evidence of the parties.

The Complainant is a security operative with long service who received a first final written warning as a result of an incident on 1st December 2021. He says he urgently needed to urinate due to his diabetes and did not have time to go the toilet. The Complainant opened a door and threw a cup of his urine outside. The Respondent’s client informed the Respondent a door was open when staff came onto the premises the following morning. The Complainant was given a first final written warning, which was upheld on appeal.

On 17th December 2021, the Complainant was found asleep on duty on a premises where a demonstration was due to take place that evening. The Complainant says he was stressed due to the previous disciplinary hearing and final written warning received. He was not feeling well, so fell asleep due to his medication. The Respondent submits the dismissal of the Complainant was fair given his conduct, and they acted as a reasonable employer would in the circumstances. The Complainant had sixteen years’ service with the company and no prior disciplinary issues. He was paid €13.75 per hour by the Respondent. He found another job some months later which is paid at €11.80 per hour and has ongoing financial loss.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal and,

(b)   to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.

The Complainant had a long history of good service with the Respondent until an incident occurred on 1st December 2021. As a result of the incident, a door was left open at night for a number of hours. The client informed the Respondent what occurred. No break in occurred nor was any financial loss incurred by the client. A mistake had been made and the Complainant apologised. There were mitigating circumstances due to the Complainant’s diabetes. In the circumstances, I find the sanction imposed by the Respondent of a first final written warning was overly severe.  A more appropriate sanction was a warning.

The Respondent has a Disciplinary Procedure which states that an employee is liable to summary dismissal if asleep on duty. On 17th December 2021, the Respondent’s client required a higher security level due to a planned protest. The Respondent Supervisor found the Complainant asleep shortly after he started his shift. The Complainant was not feeling well but had not told management, and had taken his medication. He was stressed by the disciplinary action taken. Prior to the incident on 1st December 2021, the Complainant had a clear disciplinary record, and helped the company out at short notice.

The appropriate test to be applied is set out by the Court of Appeal in British Leyland UK Ltd v Swift [1981] IRLR 91 by Lord Denning MR at pg. 93 applied by Judge Linnane in Allied Irish Banks v Purcell [201] ELR 189:

“The correct test is: Was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view, another quite reasonably take a different view.”

The Respondent’s HR Director said falling asleep usually results in dismissal. The Manager who decided to dismiss the Complainant and uphold the decision on appeal were not present to give evidence at the hearing. There was no evidence of consideration of the mitigating circumstances, and long service of the Complainant. The letter of dismissal did not set out the reasoning for the dismissal. There was no evidence the Respondent considered the proportionality of the sanction and any alternative to dismissal.

In all the circumstances, I find the decision of the Respondent does not come within the band of reasonable responses, and the sanction of dismissal was disproportionate. Undoubtedly, the Complainant contributed to his dismissal. The Complainant mitigated his loss and obtained another role at the end of April 2022 but at a substantially lower rate of pay €12.05 per hour.

The Complainant has loss of earnings for 5 weeks of €2,750.00, and a loss of €68.00 per week. His total financial loss is €9,482.00. Taking into account his contribution to dismissal, I find it is just and equitable that the Complainant be awarded €7,000 in respect of financial loss and I direct payment by the Respondent.

The dismissal was unfair. The Complainant is awarded €7,000 in respect of financial loss and I direct payment by the Respondent.

Unfair dismissal, proportionality, band of reasonableness