Worker

Employer

Anonymised Parties

A Worker

A Security Company

Representatives

  Self

John Barry Management Support Services (Ireland) Ltd

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 13 of the Industrial Relations Act

CA-00064970-001

25/07/2024

The Worker worked as a supervisor in the Company from the 7th of May 2024 until his employment was terminated on the 25th of July 2024. His gross weekly wage was €833.60 per week. He claimed Unfair Dismissal.

The Worker worked as a supervisor in the Company from the 7th of May 2024 until his employment was terminated on the 25th of July 2024. His responsibilities included attending at premises where alarm activations occurred, using a company van. After some time, he noticed that he had a skin rash after every shift. He went to a doctor and a diagnosis of scabies (human skin mites) was made. He got treatment and took it but every time he had a shift, he would get infected again. After multiple treatments all of which were successful, every time he went back in the van he got infected again.

On 23/07/2024 after his shift the Worker informed his manager about the scabies issue with the van. He was suspended that same day and was dismissed the next day.

The Worker contended that such criticism as had been made of is performance was unfair and that the issues which arose had resulted from mistakes made by the Company due to ineffectual communications to him. The Worker contended that his dismissal was unfair as he made a health and safety complaint to management and should not have been fired for that reason only.

Backround:

The claimant commenced employment with the company in the role of a Supervisor and was subject to a 9-month probationary period.

Like all Supervisors, the claimant went through an initial period of training and monitoring, which involved the claimant spending full workdays with colleagues during which he would have no responsibilities and was observing and becoming familiar with company policies and procedures. On completion of this initial training, he was allowed to work alone.

The claimant’s duties consisted of responding to alarm activations, supervising security guards, by visiting them at their site locations, to ensure they were uniformed appropriately for the duties assigned to them, they were carrying out their responsibilities and addressing any issues they may have had.

At an early stage it became apparent that the claimant needed extra encouragement and tuition, and even at this early stage there was a concern as to whether he would be suitable.

However, a more serious issue arose when he failed to respond to four alarm activations, these being the 24th May, the 4th June, the 18th June and the 26th June 2024. When investigated there was no reasonable explanation for this.

As can be appreciated this was a significant failing for a security provider and clearly left our customers, who rely heavily on our response, feeling vulnerable, especially had anything serious arisen as a consequence.

Every effort was made to support the claimant, and on three separate occasions, his line manager counselled him advising that the company needed to see an improvement if he were to be retained in his role. Unfortunately, no such improvement occurred,

It was around this time when it was becoming apparent that he was not suitable that the claimant stated that he was suffering from Scabies and that it was as a direct result of working in contaminated vehicles.

On receipt of this information, which appears to have been raised a number of weeks after the claimant maintains this problem had apparently started, and even though the company had not received any such feedback from the other users of the vehicles, the company had the vehicles checked and there was no evidence that there was a problem.

It should be noted that these vehicles are used on a 24/7 basis and drivers take over from each other to carry out their daily duties. It should also be noted that no other Supervisor reported any issues relating to the vehicles, nor suffered from any ailments as described by the claimant.

Company Position:

As outlined above, no other member of the supervisory team experienced any issues with the Vehicle in relation to their health and due to the nature of the role there would have been at least three people using the same vehicle.

Since the claimant has left there has been no issue of this kind experienced. The company also understand that scabies is usually transmitted by skin-to-skin contact, which would suggest that it was unlikely to have come from the van exclusively to the claimant.

The claimant has also suggested that as soon as he made the company aware of his issue he was dismissed. This is incorrect.

The company had at time come to the conclusion that the claimant was not suitable to the role and so decided to end his probation and was going to advise him of this decision.

Whilst there is no doubt that the issue of scabies was a matter of concern, it was also clear that there was no issue with the vehicle, as evidenced by the fact that no other user experienced this problem, and so the company now believe that the claimant made false claims at that time as he had realised that he was not performing as expected and that his job was at risk.

The company contends that the claimant was aware that he had not been performing satisfactorily and of the consequences of this being that his job was at risk, as evidenced by his failure to attend calls in May and June, and the discussions he had with his manager, who had made it clear that he needed to improve his performance.

Conclusion

The company recognises that people need to be given the opportunity to settle into a role and provided with support and guidance. In this case the claimant was given support and even when he made serious mistakes by not responding to calls, was allowed to continue on, in the hope he would improve.

He was also counselled by his manager and made aware that if he did not iporve then his continued employment was in question.

In the case Donal O’Donovan -v- Over-C Technology Limited and Over-C Limited which was a case that addressed the matter of termination during probation it was stated:

“During a period of probation, both parties are – and must be – free to terminate the contract of employment for no reason, or simply because one party forms the view that the intended employment is, for whatever reason, not something with which they wish to continue”.

We contend that clearly the issue with the claimant was related to his overall performance and suitability and not misconduct and the Court of appeal has found that in such circumstances the employer is entitled to terminate employment without recourse to formal procedures.

We therefore request that this claim fails for the above reasons.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

The Company clearly had issues with the Worker’s performance of the duties to which he was assigned. It was submitted that he tended to become overwhelmed with the work which led him, on a number of occasions, to forget to attend to alarm activations which was his primary function. Where this occurred it placed the Company in a difficult situation with its clients whose alarms were being monitored by the Company in that those clients were not getting the service from the Company which they were entitled to expect. It was submitted that these issues were pointed out to the Worker verbally by management as they arose. It was contended that the decision to dismiss the Worker was made because the view had been taken that he was not suitable for the work he was doing which, it was contended was largely due to his tendency to get flustered or overwhelmed when he had to deal with several alarm activations in rapid succession. The reason for the dismissal was that the Worker had failed to demonstrate his competence and suitability during his period of probation. 

It was denied that the dismissal had anything to do with the Worker’s complaint. In fact, the Company contended, the decision to terminate the Worker’s employment been taken the day before the dismissal. However, it was not implemented that day because the Company wanted to address the Worker’s complaint about contracting scabies first.

As regards the Worker’s complaint about contracting scabies from using the Company’s vehicles, It was argued that the Worker was aware that his employment was going to be terminated, and it was for this reason and only for this reason that he made the complaint. The Company said that it did undertake an investigation from which the conclusion was reached that there was no substance to the complaint. None of the other drivers using the vehicle had reported any difficulties with skin irritation. Furthermore, the Company appears to have obtained information that scabies can only be contracted by skin-to-skin contact.

The Company did not document the mistakes allegedly made by the Worker but it is clear that the Company was heavily influenced by these occurrences in coming to its decision that the Complainant was unsuitable for the work that he was doing. If, when they occurred, the alleged errors made by the Worker were leading to a decision to dismiss him, it would have been fairer to have convened a more formal disciplinary meeting with him and to have retained a record of that meeting. Had such a meeting taken place and a note been taken of what was said, the Worker would have had a chance to challenge the criticisms of his performance and provide explanations for the mistakes that had arisen. If any of those alleged mistakes turned out to be attributable to a lack of training or inadequate instruction, then steps could have been agreed to address those issues. If on the other hand the Company, having met with and fully discussed the issues with the Worker, still had a concern that he was not suitable, the Company could have communicated that to the Worker and given him an opportunity to improve his performance providing specifics as to hoe his erformance was falling short and setting a time-frame for a review.

If a formal meeting had taken place, another very important issue could have been raised by the Worker, namely his concern about contracting scabies from the Company vehicle. If that had occurred the Company could have sought formal medical advice in written format which could have been put to the Worker and the Worker could have done the same. As it happens the Company carried out an investigation, but the Worker was not a party to this investigation and the results were presented to him as a foregone conclusion. The Company said that its medical advice was that scabies could only be contracted by skin-to-skin contact and the Worker said that this was not the case from the advice that he had received. Neither party provided any documentary evidence to me on this issue and it is clear that they did not provide it to each other either.

I take the view that the Company was in too much of a hurry to terminate the Worker’s employment and should have given him an opportunity to address the concerns which ultimately led to the decision to dismiss him and to ventilate his own concerns. If more time had been taken, all the issues could have been discussed, investigated thoroughly and documented.

I am not satisfied that the Company followed fair procedures in dismissing the Worker in the manner in which it did. Moreover, even if he was not deemed unsuitable for the type of role to which he was assigned, no consideration was given to deploying the Worker to other less stressful duties where he was less likely to be overwhelmed or task-saturated, such as static security which is a service which the Company offers. The Company accepted that this possibility was not considered.

Taking all of the above observations into account, I conclude that the Worker was unfairly dismissed and that he should be paid compensation for his losses.

As regards the Worker’s losses, it is a fact that he returned to Poland in August 2024 which was only a month or so following the dismissal. He has security certification which is recognised in Ireland and he did not explain why he did not seek alternative work in the security industry in Ireland before making the decision to return to Poland. He said that his Irish certification is not recognised in Poland which prevented him from securing security related work there but that does not explain why he did not look for other work in Ireland where he had been living for some time. In such circumstances it is not appropriate for the Worker to be compensated beyond the losses sustained because of losing his employment in July 2024 and those losses cannot exceed a month’s remuneration. Accordingly, it is my recommendation that the Company pay the Worker the sum of €3,334 reflecting a month’s pay (to be be paid in the most tax efficient manner permitted by Irish Law) by way of compensation for unfair dismissal.

Unfair Dismissal – Probation - Procedures