Complainant

Respondent

Parties

Hubert  Pitter

Provincial Security Services Limited

Representatives

Bernard Stobie Solicitors

Vincent Nolan BL instructed by Reidy Stafford LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00058833-001

14/09/2023

The complainant’s employment was terminated by the respondent on 15 March 2023.

The complainant referred this claim to the Workplace Relations Commission (the “WRC”) on 14 September 2023 under the Unfair Dismissals Act 1977 seeking redress of compensation.

The respondent disputed the unfair dismissal claim and submitted that the complainant was dismissed for gross misconduct following a fair and consultative process.

Summary of complaint statement & submissions on behalf of complainant

The complainant was employed with the respondent as an on-site security guard at a 3rd party’s premises.

Investigation and disciplinary meetings were held in respect of the complainant leaving his position early on 4 dates.  The complainant explained that his leaving early was due to family medical reasons.  The complainant was never advised of the entitlement to take force majeure leave.   Notwithstanding the complainant having explained the reasons why he had had to leave early, the matter was put forward to the respondent’s disciplinary process. 

The respondent failed to address a direct conflict of evidence in the investigation and disciplinary meetings, namely whether the complainant had or had not been accommodated by his line manager in relation to previous requests made by the complainant to leave early.  The respondent’s failure to address this conflict, and to provide the complainant an opportunity to challenge his manager’s position and statement on the issue meant that the dismissal was incorrect and unfairly decided.  The complainant was not afforded his constitutional right to fair procedures. 

The line manager’s provision of opinion evidence and commentary to the investigator was prejudicial and impacted on the integrity of the investigation process.  The complainant was not afforded an opportunity to challenge this. 

The complainant was neither advised nor informed that he could have legal representation at the different phases leading to the ultimate dismissal.  An offer by the complainant to provide information at the disciplinary meeting was ignored.  This rendered the decision to dismiss incorrect and was in breach of the complainant’s rights under the respondent’s Code of Conduct.

The respondent did not properly inform the complainant of all the evidence against him. 

Gross misconduct on the part of the complainant was not established and there was no outcome to the complainant’s internal appeal of the decision to dismiss.

The complainant’s employment history was very positive and the decision to dismiss him was not reasonable; it was a disproportionate sanction and was not within the range of reasonable responses of a reasonable employer.  Other options should have been explored in dealing with the matter.  The complainant had considerable service in employment, no disciplinary record and had always sought to oblige the respondent.  None of this was considered by the respondent in deciding to dismiss the complainant. 

The complainant was not afforded fair procedures in and around the respondent’s investigation and disciplinary procedures, particularly where there was no outcome in respect of the complainant’s appeal of the respondent’s decision. 

The complainant has mitigated his losses having secured employment on 1 August 2023.

Summary of complainant’s oral evidence

The complainant’s employment commenced in July 2011.  For the most part, he enjoyed working with the respondent.      

In relation to leaving the client site early, the complainant had to leave as he had received a call to say his child was sick; it was a medical emergency.  There were many occasions the complainant had to leave early because of illness of his children. 

The complainant did not contact his line manager or anyone else before leaving the client site.

The complainant was aware of the respondent’s early leaving procedures.  He didn’t follow the procedures as he was not thinking of them because of the nature of the circumstances with his child sick. 

The complainant had previously specifically asked for time off to undertake a test.  It was at short notice and his line manager told him he would have to take annual leave.   The complainant chose to take annual leave to cover an operation he had to have because it was less hassle.  

When the complainant was called to head office for the investigation meeting, he knew what the situation was and that it was a fait accompli.  The complainant felt let down by the company after so many years of service when he was called to the disciplinary meeting.    The complainant had given everything to the company and the client; he had made himself available to the company on any occasion.

The complainant was never asked for evidence to support why he had left site.  There was nobody at the investigation or disciplinary meetings that the complainant could have cross-examined.  The complainant thought the appeal was an ongoing process and that someone would come back to him on it.  In the past, the complainant had contacted the managing director if he had a problem with rosters and other such matters. The respondent had worked this out for the complainant. 

The complainant’s children are his priority, and he had to put them first.  The complainant explained at the investigation meetings that he had to leave as his child was sick.  

The complainant felt he was unfairly treated because he had never previously been involved in a disciplinary process.

The complainant outlined efforts to find work and to upskill after his dismissal.  The complainant signed up with an agency and entered a 6-month contract in June 2023 to provide delivery service and worked 1 to 3 days per week.   The complainant outlined employment secured in the latter part of 2023 and in 2024.

Under cross-examination, the complainant accepted it was a serious matter to leave a site unattended.  He did not accept that it was his dishonesty that led to his dismissal.  The complainant accepted he left the client site early on Saturday, 11 February 2023, and that he did not tell anyone from the respondent either before he left or the following day.  The complainant’s line manager addressed the issue with the complainant on 13 February 2023.  The complainant undertook a basic patrol before he left the site, but he did not send an email or contact the monitoring facility because it was not mandatory for him to do so.   The early leaving was on Saturdays and Sundays.  The reason for leaving early on all of the occasions in question was due to medical emergency.  The complainant disagreed that there was a pattern to the early leaving.  The complainant did not tell the respondent he had to leave because his experience over the years was of being ignored and having leave denied.  The complainant did not raise this issue with the respondent and did not raise it during the investigation or disciplinary process. The complainant did not produce verification of a medical emergency because it was not requested of him.  The complainant maintained he was constantly being denied leave.  The complainant agreed that he chose to pursue his claim before the WRC rather than an appeal at local level. 

Summary of submissions on behalf of the respondent

The complainant’s employment with the respondent was subject to both a code of conduct and disciplinary policy. 

The respondent was notified by a client of its premises being unattended on 11 February 2023 at a time when there should have been a security officer from the respondent in attendance.

The complainant had been rostered for work on the relevant client premises on the date in question and his manager spoke with him on being notified of the issue by the client.   The complainant’s reason for leaving the premises earlier than the rostered shift finish time was due to a family matter. 

The respondent commenced an investigation of the report of non-attendance by reference to its code of conduct, and the complainant’s duties and obligations.  An express obligation in the code of conduct for employees is that they are required to:-

“remain at their place of work unless permission to leave is given by an authorised officer of the security provider or there is sufficient cause.  In order for any officer to leave their post ,there must be sufficient cover in place.”

The complainant was suspended with pay until the conclusion of the respondent’s investigation.

The respondent’s HR Director conducted the investigation on behalf of the respondent and met with the complainant on two occasions to address the attendance issue of 11 February 2023 and other incidents of non-attendance that had come to the respondent’s attention.  The investigation meetings were conducted in accordance with fair procedures. 

The investigation concluded the complainant had a case to answer in respect of alleged gross misconduct and the matter was progressed under the respondent’s disciplinary policy.

The respondent’s HR Manager conducted the respondent’s disciplinary process and met with the complainant on two occasions during this process.  The outcome of the disciplinary process was that the complainant’s employment would terminate with immediate effect on grounds of gross misconduct.    A letter of termination issued to the complainant on 15 March 2023.

The complainant did not appeal the decision within the notified timeframe for appeal.  Notwithstanding, the respondent admitted the appeal and appeal hearings took place on 8 May 2023 and 26 September 2023.  The complainant’s appeal was unsuccessful.

The respondent carried out a fair procedure in and around its investigation and application of its disciplinary policy.  The complainant’s actions carried serious repercussions given the nature of his role and the respondent’s business. 

There was no direct conflict of evidence before the investigator or decision makers.  The respondent made its decision on the evidence before it.  The complainant was afforded the right to have a representative present at investigation and disciplinary meetings.  A specific act of gross misconduct under the respondent’s disciplinary policy is “failure to comply with correct attendance procedures”. 

The respondent disputed the unfair dismissal claim; the complainant was dismissed for gross misconduct following a fair procedure. 

Summary of Mr Michael Aziewicz’s oral evidence

In February 2023, the witness was a regional manager based at a client site where the respondent was contracted to provide security services.  The complainant reported directly to the witness.  The complainant’s duties at the client site were to provide front of house security, greet guests, sign-in visitors and do a morning and afternoon patrol.  There was a shift roster in operation that covered 6.30am to 4.30pm and 4.30pm to 10.00pm, Monday to Friday.   On a Saturday and Sunday, the respondent’s site cover ceased at 7.30pm and an operational centre would take over security monitoring.  

There was a procedure to follow if an employee had to leave site early; in the first instance the employee should contact the witness as direct line manager, or the global security operational centre which operated 24/7, 365 days of the year, who would then contact the witness to ensure there was cover on site.  If the witness or the operational centre were uncontactable, an employee should contact the on-call number for the provincial office.

The witness attended the site on 13 February 2023 and was asked by the client’s IT manager why the reception had been without security on 11 February 2023.  An employee had been unable to gain access to the site and had taken a picture at approximately 6.00pm and sent it to the client. 

The witness asked the complainant for an explanation.  The complainant told him that he had an important family matter to attend to and had had to leave the client site.  When the complainant was told there had been an employee trying to get into the office at 6.00pm, the complainant had said that it was around that time the complainant left the site.   The witness asked the complainant why he had not followed procedure and called the witness or told him there was a family emergency or contacted the operations centre.   The complainant’s response was that he knew the procedures.  The witness at this point was obliged to investigate what had happened.  The biggest issue for the witness was that the respondent provides security and emergency response services for the client.  The complainant had been the only 1st aider on site.  If there had been an emergency, the complainant was required to respond to it and was responsible for fire evacuation on the site.  If the complainant had a family emergency, he should have called the witness, and a cover arrangement would have been put in place.  The complainant had been accommodated previously.  The witness contacted the HR Director, Ms Lalor, with the findings of his investigation, and he left it with the office to handle thereafter.

Certain other matters came to the witness’ attention when he was conducting his investigation.  He looked for patterns and saw the complainant leaving earlier on previous Saturdays and Sundays and he provided this information to Ms Lalor. 

Cross-examination

The witness did not recall the complainant telling him he had a medical test he had to go to or that the complainant was required to take annual leave to attend it.  The witness could not recall ever asking the complainant if everything was alright in relation to a family matter.  It had happened in the past where the complainant had just wanted to leave site without explaining and had not properly followed the request procedure.  When asked about whether he had taken any steps to get to the bottom of why the complainant had left early, the witness responded that he had a job to do and followed the investigation procedure.

The witness recalled occasions when the complainant had to leave during a shift and how the witness would jump in to cover for him.  There was no investigation on those occasions because the complainant had requested cover.  The witness could not recall the complainant requesting leave for an operation or a medical condition. 

The witness had worked with the complainant from in or around 2015.  He had previously had cause to address with the complainant issues in relation to the complainant’s communications with others.  The witness had notified HR of these issues, and the witness had personally addressed the issues with the complainant.

Summary of Ms Anthea Lalor’s oral evidence

The witness is HR Director with the respondent company. 

The respondent’s code of conduct and disciplinary procedures are updated on a regular basis, but the fundamentals remain the same.  The procedures and code are accessible to employees on an online portal and employees are notified of updates to same.  The duties and tasks of a security officer are set out in the Employee Code of Conduct, one of which is to remain at their place of work.  The duties and tasks are based on health and safety of visitors and employees and to ensure client trust.  However, the respondent recognises that there are events in life that are unforeseeable which require flexibility.  It is a family business and recognises that family comes first.

In terms of inclusion in the respondent’s disciplinary policy of a failure to comply with correct attendance procedures as an example of gross misconduct, the witness explained that all employees are notified of their rosters in good time.

On 13 February 2023, Mr Aziewicz contacted the witness and shared with her the photo and conversation he had had with the client’s IT manager and the complainant.  The witness sent all information to Mr Aziewicz to enable him to commence an investigation.  In the security context, the issue was considered as quite serious. 

The witness wrote to the complainant twice on 16 February 2023 and sent him the code of conduct and disciplinary procedures.  Details of the allegations against the complainant were set out and he was invited to attend an investigation meeting on 20 February.  The complainant was suspended with pay with immediate effect.  The letter informed the complainant of his right to representation and of the purpose of the meeting being an opportunity for the complainant to give his account.

The witness conducted the investigation meeting on 20 February 2023, which was attended by the complainant and a note taker.  The witness asked the complainant about having someone with him and the complainant said that he wanted to record the meeting.  The complainant placed two recording devices on the table.  The witness and note-taker did not consent to the meeting being recorded and informed the complainant of this.   The complainant was not happy with the meeting not being recorded and the meeting adjourned until 23 February 2023.  The meeting of 23 February was to establish the basic facts in relation to the incident and to ascertain the complainant’s familiarity with the respondent’s policy on leaving site.  The complainant did not provide in-depth responses at the meeting and the witness found it difficult to gather information from him.

Following the 20 February meeting, the witness discussed with Mr Aziewicz the procedures for leaving site and asked whether the complainant had previously not been permitted to leave site.

On 1 March 2023, the witness sent to the complainant further detail on attendance issues that were sent by Mr Aziewicz to the witness.

The witness held a further investigation meeting with the complainant on 3 March 2023 where the additional dates and attendance issues were discussed. The complainant told the witness he recalled the dates and when the witness probed it, the complainant said it was for medical emergencies in relation to his child.    The witness did try to probe with the complainant the situation regarding his child but did not want to force disclosure.  It was a serious situation, and the witness would have expected the complainant to disclose relevant information.

The witness in her investigation wanted to get an understanding of the process and risks on site and whether the complainant had been refused leave at other times.

The complainant did not bring up not being allowed to take time off to get a vaccine or because of a medical condition. 

The complainant’s gross weekly pay was €774.74

Cross-examination

Asked about what information the witness expected the complainant to provide in relation to a medical emergency concerning his child, the witness said she did not need details.  The witness had a question mark about it being a medical emergency due to the pattern of the attendance issues.  She was unsure about how often medical emergencies could happen.  The culture in the respondent organisation is such that employees should raise an issue if shifts need to be changed.   The witness had a second meeting with the complainant to give him an opportunity to expand on or clarify the reasons he had provided as she wasn’t getting a whole lot from the complainant.  She felt it was only fair to give the complainant every opportunity to provide information.  The witness did not feel that she should have to probe with the complainant why he had to leave and what the emergency was.  It was not about the complainant leaving the site, it was about the complainant not having followed procedure.  The witness asked the complainant what he did before leaving and why he had not told anyone.  The complainant told the witness he could have made a phone call but did not.  The witness did not accept that the complainant did not have time to make a phone call in circumstances where he had turned off lights and the computer.

Mr Azewicz had a conversation with the complainant as to whether there was anything going on that the respondent needed to be aware of.

The witness agreed that the complainant had a long period of service and accepted that he was a valued employee.  The witness considered the complainant’s service and the seriousness of the situation having regard to the nature of the role and the fact that the complainant was familiar with procedures.

The witness outlined the significance of having someone present on site from a security and health and safety perspective where there are employees on site.  The complainant was the qualified first aider on site in the event of an accident. 

The handwritten and typed notes of all the meetings conducted by the witness were photocopied and given to the complainant.

Summary of Ms Davina Lavin’s oral evidence

The witness is HR Manager in the respondent company.  The witness was not involved in the investigation process.  The witness received the investigation report, its appendices and a copy of communications between Ms Lalor and the complainant.  The witness’ role was to conduct the respondent’s disciplinary process and make a decision having regard to the respondent’s disciplinary policy.

The witness met with the complainant and gave him an opportunity to respond to the allegation on 13 March 2023.  The complainant was given the opportunity to have someone accompany him to this meeting.  The information provided by the complainant at this meeting was limited.  The witness found it difficult to get answers and information from the complainant.  The complainant admitted to leaving early on the dates in question and agreed it was because of family emergencies on all the dates.  The witness asked the complainant whether there was any explanation as to why the early leaving was always on a Friday or Saturday. The witness was trying to get as much information as possible in her meeting and to find out if there was a reason for the behaviour.    The complainant did not raise having looked for time off previously.

The witness had a disciplinary outcome meeting with the complainant on 15 March 2023.

The decision of the witness was that there had been gross misconduct on the part of the complainant.  It was a straightforward decision as it was a security issue where a site had been left with no security, the complainant had not sought permission to leave the site, and the site was left unsecured.  The complainant admitted doing this on a number of occasions therefore the decision was not difficult to make. 

Cross-examination

The purpose of the disciplinary meeting of 13 March 2023 was to give the complainant an opportunity to give his account and response to the allegations against him.  In response to a question about why the meeting was so short, the witness outlined her normal procedure in a meeting of this nature and how a meeting is as long or short as the conversation is.   The answers and information provided by the complainant resulted in the meeting being short.  The issue being addressed was the complainant leaving site without permission or authority.  The witness had no issue with the complainant’s reason for leaving, the issue was that he left the site without authority to do so.  It was a straightforward case for the witness because there was no conflict in the evidence before her.   The respondent’s policy is to afford someone the right to be accompanied by either a union representative or work colleague at disciplinary meetings.  The purpose of a representative is to support or assist someone in the meeting.  The witness believed the correct outcome was termination of the complainant’s employment.  She had considered the options open to the respondent.  It was a serious breach and therefore the outcome was dismissal.  The witness was asked about counselling, warnings and going through the stages of discipline.  The witness believed dismissal in the case appropriate.  The complainant was dismissed because he left without authority, not because he had an emergency.  Had an emergency been communicated, the respondent would have been able to respond and put in place an arrangement to accommodate the person.  The respondent was unaware of an emergency until it was notified by its client of its premises being unattended.  The witness referred to the complainant having been given a number of opportunities and scope in meetings to talk to the respondent, but he did not.  The witness had to work on the facts before her.  The complainant had not mentioned previous requests to leave site.  The attendance of a representative at the meeting of 15 March 2023 would not have made a difference to the decision of the witness on the disciplinary outcome but would have been a support for the complainant when he was informed of his dismissal.

In re-examination, the witness agreed there are a number of options available under the disciplinary policy in relation to gross misconduct.

Summary of Mr Robert Dunleavy’s sworn evidence

The witness is the managing director of the respondent company.

He had no involvement in the disciplinary process until the appeal was lodged with him. 

The complainant had not previously been disciplined by the respondent.  The witness accepted absolutely that the complainant was a good worker and did not dispute that the complainant had made himself available for work at short notice.

The respondent’s business is on-site provision and maintenance of security, and it was what they were contracted to do at the site the complainant worked.  There are many duties owed to the client in connection with provision of this service including responding to fire and intruder alarms. 

In the event of an employee having a family emergency, the normal course of events is for the employee to call their line manager, or the respondent’s head office, which is attended 24/7, or the client’s security centre.  The complainant had avenues open to him in terms of persons to contact if he had to leave site to attend to a family emergency. 

The complainant had previously contacted the witness directly on issues that had arisen for the complainant.

The witness was not aware of the complainant having been denied leave previously, but this happens from time to time.

The letter of termination dated 15 March 2023 offered a right to appeal the dismissal decision within 7 days.  On 20 March, the witness agreed to the complainant’s request for an extension of the timeframe to appeal and granted until 29 March 2023.  On 30 March 2023, the witness emailed the complainant to ascertain the position in relation to an appeal.  The witness received the complainant’s appeal on 14 April 2023.  The respondent did not take issue at the time with the complainant’s non-compliance with the timeframes.  The witness contacted the complainant on receipt of the appeal letter and arranged to meet on 8 May 2023. The witness reviewed everything following his meeting with the complainant on 8 May.  A follow-up meeting arranged for 30 May 2023 did not ultimately take place. 

An appeal meeting took place on 26 September 2023.  The witness agreed to a request that the complainant be accompanied by his solicitor at this meeting notwithstanding it not being normal practice for legal representatives to attend internal meetings.   The minutes of the meeting were opened.  The meeting concluded with it being agreed that the complainant would revert to the respondent.  No outcome was ultimately reached on the appeal.  There were a number of conversations, but the WRC process ultimately took over.  The witness did not issue a decision on the appeal. 

Under cross-examination, it was put to the witness that the minutes of meetings did not reflect the complainant having been asked for telephone or documentary records to prove why he had to leave early.  The witness had reviewed the notes of the meetings as part of his review process. When considering the appeal, the witness took account of the fact that the complainant had admitted to leaving site early.  The function of the witness in dealing with the appeal was to review everything.  It was vital that the respondent’s personnel were on site from a security perspective, and catastrophic to the respondent’s reputation if something bad were to happen and the site was unattended.  The witness did not consider dealing with the appeal in a different way because ultimately, he never issued a decision on the appeal. 

In making my decision on this claim for unfair dismissal, I have carefully considered the submissions of the parties, and the evidence adduced.

The complainant’s employment as security officer with the respondent was terminated with immediate effect on 15 March 2023.

The material facts preceding the termination of the complainant’s employment on grounds of gross misconduct were not in dispute between the parties. 

The complainant contended that the sanction of dismissal was disproportionate in the circumstances, that there were issues with the respondent’s disciplinary process rendering the dismissal unfair and that the complainant’s dismissal was not reasonable.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) 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(4)(b) of the Act deems for the purpose of the Act a dismissal resulting wholly or mainly from the conduct of the employee, not to be an unfair dismissal. 

In accordance with section 6(6) of the Act, it is for the employer to show that the dismissal resulted wholly or mainly from the conduct of the employee or that there were other substantial grounds justifying the dismissal.

Section 6(7) of the Act provides that in determining whether a dismissal is unfair, regard may be had:-

“(a) to the reasonableness or otherwise of the conduct (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 section 14(1) of this Act or with the provisions of any code of practice …”

My role is to decide against the facts whether the respondent’s decision to dismiss was reasonable.

Decision to Dismiss

The complainant worked as a security officer at the site of a third-party, a client of the respondent.  The respondent’s client brought the absence of a rostered security officer at a particular time on 11 February 2023 to the respondent’s attention.  It was further to the respondent’s investigation of this incident that the respondent discovered other dates the complainant left site prior to his rostered finish time.  The complainant accepted leaving the site before the end of his shift on dates in January and February 2023 due to family medical reasons.  The complainant further accepted that he did not inform anyone in the respondent company that he was leaving the site, or indeed persons who were on site on 11 February 2023. 

The respondent’s employee code of conduct and disciplinary policy, and the complainant’s knowledge of same, were not in issue.

The respondent’s code of conduct has as its purpose to ensure the provision of an efficient and professional service.  The relevant conduct, duties and tasks of a security officer are expressed in the code to be to:-

“Ensure that any actions taken by them are such as not to bring discredit on the employer, the client or fellow employees.

Having concern for the safety and security of visitors and employees.

…

Remain at their place of work unless permission to leave is given by an authorised officer of the security provider or there is sufficient cause.  In order for any officer to leave their post there must be sufficient cover in place.”

The respondent’s disciplinary policy details failure to comply with correct attendance procedures as an instance of gross misconduct.

The respondent carried out an investigation and disciplinary process in relation to an alleged breach of the respondent’s code of conduct. 

The complainant accepted as accurate the notes taken of meetings during the respondent’s investigation and disciplinary process.

The respondent outlined in evidence the procedure an employee was required to follow if they had to leave site early.  The complainant’s evidence was inconsistent on the requirements of the procedure and his reasoning for not following the procedure.  Under cross-examination on the third hearing date, the complainant stated that it was not mandatory for him to send an email or to inform the operational centre.  His direct evidence to the Commission on the second hearing date was that he was aware of the respondent’s leaving site procedure but was not thinking of the procedure due to the circumstances of his child being unwell.  In this regard the complainant’s evidence that he did a patrol of the site and turned off his computer before leaving on 11 February 2023 is notable.  During the respondent’s investigation and disciplinary process, the complainant confirmed that he was aware of the leaving site procedure.  I specifically note from the minutes of an investigation meeting that the complainant had previously let the operational centre know when leaving site and, in response to a question relating to the procedure, the complainant referred to emailing the operational centre.  A further response by the complainant was to the effect that he could have contacted the operational centre, but did not do so.  In the circumstances, I prefer and accept the respondent’s evidence on the detail of the procedure for an employee to follow prior to leaving site and furthermore that the complainant was aware of the procedure.

The complainant was asked at the investigation meeting of 20 February 2023 whether he had left site unattended before and his response was that he could not recall.   Further to the respondent’s investigation of the 11 February incident, the respondent discovered the complainant had left site early on 4 other dates.  These dates were in January and February 2023.  At a further investigation meeting on 3 March 2023, when the complainant was asked about leaving site early on the four dates, the complainant recalled having done so.   

Having regard to the foregoing and the information before the respondent arising from its investigation, I consider it reasonable that the respondent proceeded under its disciplinary procedure with an allegation of gross misconduct.

The complainant maintained throughout the investigation and disciplinary process that he had left his shift early due to a child being sick or because of medical emergencies for his child, and that he did not contact anyone because in the past his requests had been denied.  The complainant was asked for details regarding requests having been denied and whether he had raised this as an issue. The complainant did not provide detail or examples but said he had raised the issue with the CEO in 2021.  The CEO’s undisputed evidence was of the complainant raising a medical issue in a 2021 meeting and that this issue had been resolved satisfactorily. 

The complainant’s position that he did not verify or produce supporting evidence as to the family medical emergencies because he was not asked for it, is untenable having regard to the minutes of the meetings that took place during the respondent’s investigation and disciplinary process.  I am satisfied that the complainant had an opportunity to respond to the respondent’s query as to a pattern at weekends of leaving early and to verify that it was for medical emergency.  The complainant’s evidence at the WRC hearing was that he could get the evidence if required.  Such evidence is not relevant to my adjudication, but it was relevant in the respondent’s investigation and disciplinary process.  The respondent’s communications in relation to its process clearly conveyed the seriousness of the situation and how the process could result in disciplinary action up to and including dismissal.  It was incumbent on the complainant to put forward relevant matters and any supporting documentation to the respondent and particularly so where the respondent was questioning the circumstances and an apparent pattern under its disciplinary process.

The decision to dismiss was taken by the HR Manager following a disciplinary meeting on 13 March 2023 and the complainant was informed of the decision at a meeting on 15 March 2023.  The decision was taken based on the complainant’s breach of the respondent’s code of conduct and disregard for the respondent’ leaving site procedure amounting to gross misconduct.

Submissions on behalf of the complainant in relation to the respondent’s lone worker policy, first-aid on site in the event of an illness or accident in respect of the complainant, and force majeure leave were not raised prior to the hearing before the Workplace Relations Commission, and I do not consider such matters to be relevant to my adjudication of the unfair dismissal claim.

Disciplinary Process

I find that the procedure followed by the respondent was fair and in line with the Code of Practice on Grievance and Disciplinary Procedures in S.I. 146 of 2000. 

The respondent’s procedures provide for right to representation during the disciplinary process in line with S.I. 146 of 2000.  The complainant was informed of the right to representation by a colleague or union representative in advance of investigation and disciplinary meetings. 

I am satisfied, on balance, that the complainant did not request to have legal representation at meetings during the investigation and disciplinary process.  There is no reference in the investigation and disciplinary meetings to the complainant requesting legal representation and the matter of representation was raised by the respondent with the complainant at those meetings.  A request by the complainant to have legal representation attend an appeal meeting was acceded to by the respondent at its discretion and in the interests of progressing the matter.    The complainant did not advance when otherwise he requested legal representation and was refused same. 

The requirement is for the respondent’s disciplinary process to be fair.  The respondent not offering the complainant an opportunity to have a legal representative during the process does not in and of itself render the process unfair.  I am not satisfied in this case of complexities that could not be dealt with by the complainant or that the absence of legal representation left the complainant without an adequate level of representation. 

I am further satisfied that Mr Aziewicz’s involvement in the initial stage of the investigation process, including his report to HR, and HR’s reliance on same, was not inappropriate or prejudicial to the complainant.  Mr Aziewicz was the complainant’s line manager, and it was to him that the complainant’s non-attendance on site on 11 February 2023 was reported.  I also do not consider there to be anything unusual or untoward arising from oral evidence of Mr Aziewicz having had cause to address issues previously with the complainant; he was his line manager.  Submissions on behalf of the complainant suggested that the complainant was prejudiced in the disciplinary process because Mr Aziewicz was not impartial, and reference was made to an instruction to the complainant by Mr Aziewicz in 2021.   In the appeal submission on behalf of the complainant, there was an objection expressed to the use of Mr Aziewicz’s evidence.  I am not satisfied of the relevance of any instruction in 2021 to my adjudication of the unfair dismissal claim in circumstances where I am satisfied that Mr Aziewicz’s involvement in the relevant disciplinary process was limited to reporting into HR matters that had come to his attention.  Two separate members of the respondent’s HR team conducted the investigation and disciplinary process.  Ms Lalor issued a report following her investigation and Ms Lavin had regard to this report in her conduct of the disciplinary process.  Mr Dunleavy was considering the appeal, including alternatives to dismissal, which appeal was not pursued by the complainant.

I have very carefully considered Mr Aziewicz’s report to HR, the notes of the meetings with the complainant and the information provided to the complainant.  I am not satisfied observations and opinion expressed by Mr Aziewicz in his report to HR, or the complainant not having an opportunity to cross-examine Mr Aziewicz, rendered the investigation and disciplinary procedures unfair.  Mr Aziewicz’s report set out how the incident was brought to his attention by the client and the actions he took thereafter.  His observations and opinion relate to health and safety risk, leaving the site being irresponsible and there being no excuse for same.  The complainant did not dispute in the disciplinary process having left the site early and not having notified anyone.  The complainant did not challenge or dispute the information put forward to HR by Mr Aziewicz during the disciplinary process.  I am unclear as to what cross-examination of Mr Aziewicz would have achieved.  The complainant did not challenge or seek to test Mr Aziewicz’s report during the disciplinary process nor was this raised as an issue in the appeal.

The complainant lodged an appeal with the CEO against the decision to terminate his employment and the respondent’s evidence was that there was ultimately no outcome reached on the appeal.  The appeal was loosely managed on both sides; the complainant did not comply with appeal timeframes, a follow-up meeting did not take place, the complainant did not revert to the respondent as agreed in a September 2023 meeting and there was no express closure by the respondent of the appeal process.  Based on the complainant’s evidence that he chose to pursue his claim before the WRC rather than the internal appeal, I find that the internal appeal was not pursued by the complainant. 

Conclusion

I consider it reasonable for the respondent to have concluded that the complainant’s conduct amounted to gross misconduct justifying dismissal for the following reasons. 

There was a pattern of the complainant leaving early and in or around the same time on a Saturday and Sunday, of which the respondent was unaware until a client reported an instance of the site being unmanned on a date in February 2023.  During the disciplinary process, the complainant accepted leaving early and stated this was due to family medical emergency however did not provide any further detail or verification in this regard.  The complainant did not provide examples of when he had previously been denied leave. 

The respondent’s business is to provide a manned guard security service to clients.  The complainant’s role as security officer, working at a client site, was at the core of the respondent’s business model.  The complainant failed to inform anyone in the respondent organisation or in the client organisation of a family emergency and having to leave early.  The complainant failed to follow the leaving site procedure which would have given the respondent an opportunity to put cover in place.  The complainant’s evidence that he did not think of following the leaving site procedures due to it being a family emergency is difficult to reconcile with evidence that he had patrolled the site and shut down his computer before leaving the site. The associated risks and implications of there being no cover in place were well-aired at the hearing and included first-aid implications and reputational damage to the respondent’s business.  I accept as legitimate the respondent’s emphasis on attendance of security officer employees at client sites when rostered and adherence by such employees to the respondent’s leaving site procedures having regard to the nature of its business, associated risks, including the risk to reputation.  I find that the leaving site issue without following procedure was exacerbated by the complainant’s failure to contact management to let them know, either before or after the event.  

The respondent took the decision to dismiss based on the complainant’s breach of conduct and duties under the code of conduct.  The code of conduct set out the standards expected of security staff.  The respondent’s disciplinary policy sets out the procedure that will apply where an employee’ conduct, attendance or performance warrants disciplinary action.  Failure to comply with correct attendance procedures was detailed as an instance of gross misconduct.  

I am satisfied that any shortcomings in the respondent’s procedures were not sufficient to take the respondent’s decision to dismiss outside the range of reasonable responses.  The respondent complied with the provisions of its disciplinary policy and generally with best practice.  Details of the allegations were put to the complainant, and he was given the opportunity to respond.  The complainant was advised of the right to be accompanied to the disciplinary hearing and of the potential of dismissal as a disciplinary sanction outcome.  There was an internal appeal mechanism invoked by the complainant during which the complainant had the benefit of legal representation.  The appeal was not pursued by the complainant when he referred the within claim to the WRC.

I find that there were substantial grounds justifying the dismissal of the complainant and that the dismissal was within the range of responses which could reasonably be expected of a reasonable employer.

I find that the complainant was not unfairly dismissed.

Dismissal – Attendance issues – Gross misconduct - Disciplinary process