Worker

Employer

Anonymised Parties

Security Guard

Security Company

Representatives

  Self

 Director

Act

Dispute Reference No.

Date of Receipt

Section 13 Industrial Relations Act

CA-00059309-01

10/10/2023

The worker was employed by a security firm and assigned to a financial services institution.

The worker commenced employment on the 19th of October 2022 and his employment ended on the 6lth of April 2023 within his 6-month probationary period.

The worker was summarily dismissed arising from several complaints made by the client relating to poor timekeeping; allowing a cctv monitor to stay fixed on one property located in the hometown of the worker for 9 hours during his 12-hour shift and bringing a multi tool onsite allegedly as a weapon.

The worker stated he was never given a contract of employment which is denied.

That his main grievance is a failure to hear his side and that all these allegations were either made on the day of his dismissal or several months after being let go.

The Employer never followed any disciplinary procedure and or performance improvement process where the matters complained of were brought to his attention.

His timekeeping was an issue where he had 13 lates. That primarily related to a delay caused by public transport. The service he relied on was an hourly service.

The CCTV remaining static on one property was a random act and not intentional.

The multi tool was not intended to be used as a weapon as alleged when informed about it  after he left his employment, it was simply a tool.

The Worker did receive his contract.

Timekeeping was discussed but not formally.

The Client allowing for multiple issues from timekeeping; to the CCTV issue to bringing a tool onsite that clearly could be used as a weapon as per the management service contract complained and did not want the worker on site. There was no alternative site to redeploy him to and the Employer had a right to terminate during the probationary period and exercised that right.

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

SI No 146/2000 code of practice requires that the worker is afforded fairness during her probationary period:

6.     The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

•    That employee grievances are fairly examined and processed;

•    That details of any allegations or complaints are put to the employee concerned;

•    That the employee concerned is given the opportunity to respond fully to any such allegations or complaints;

•   That the employee concerned is given the opportunity to avail of the right to be represented during the procedure;

•   That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors or circumstances.

The Labour Court in Beachside Company Limited LCR 21798 considered if a worker could rely upon SI no 146 of 2000 during the probationary period. That decision stated:

Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

I find that the worker was unfairly dismissed arising from being summarily dismissed; the issue that arises was that action justified.

The Employer paid the worker for two weeks after his termination date.

The Employer was given an ultimatum by the client.

The client had substantial reasons for not wanting the worker on site.

The worker was on a probationary period.

The Employer could not redeploy as the company only has one client.

The Employer failed to hear the worker’s reasons for the serious concerns raised by the client relating to:

·        Bringing what is alleged to be a weapon to work

·        Fixing CCTV on a site proximate to where the security guard lived

 and this was a breach of SI No 146/2000 and the worker’s right to fair procedures.

The worker accepts that he in fact was late on 13 occasions and this he put down to the poor punctuality of public transport that he relied upon.

The Employer stated that shift handover is critical, and this pattern was raised with the worker; although, no disciplinary or improvement programme was formally put in place.

The Employer has the right to dismiss during probation and the lateness pattern would give rise to such discretion being exercised as it related to the worker’s performance of his duties. I note the Court of Appeal in Donal O’Donovan v Over-C Technology Limited and Over-C Limited [2021] IECA 37, the Court allowed an appeal against a decision of the High Court restraining the employer from dismissing an employee during his probationary period on performance related grounds.

The allegations relating to bringing a weapon on site and fixing a CCTV cameral on a site for 9 hours are serious allegations relating to conduct. The Employer could summarily dismiss if it deemed such allegations on balance to be proven; however, it needed to hear what the employee stated about such allegations and that his right to fair procedures were respected.

Having regard to the facts of this case in their totality, I determine that the Employer was in breach of the workers right to fair procedures; however, the pattern of lateness alone was justification not to affirm the contract. The worker accepted this pattern occurred; however, blamed the bus service for his lateness.

In these circumstances as a technical breach has occurred an award of compensation should be made; however, it does not merit a significant award.

I recommend that the Employer pay compensation of €2800 which is stated to be 1 month’s gross earnings for the breach of procedures relating to a fair hearing concerning the allegations about bringing a weapon on site and the CCTV alleged breach.

Dismissal-Probation Period-Fair Procedures