LCR22902

SUBJECT:

Appeal of Adjudication Officer Recommendation No's: ADJ-00047071 (CA-00058047).

BACKGROUND:

The Worker appealed the Adjudication Officer's Recommendation under Section 13(9) of the Industrial Relations Act 1969 on 17 September 2023. A Labour Court hearing took place on 5 January 2024.

DECISION:

The Appeal

This is an appeal by the Worker from a Recommendation of an Adjudication Officer (IR-00000547, dated 9 August 2023) under section 13 of the Industrial Relations Act 1969. Notice of Appeal was received in the Court on 17 September 2023. The Court heard the appeal in Dublin on 5 January 2024.

The Subject of the Dispute

The Worker was employed as a Security Officer by G4S Secure Solutions (Ire) Limited (‘the Company’) from 12 July 2005 until his resignation on 6 July 2023. At the material time, the Worker was based at a data centre facility operated by client of the Company.

An incident allegedly occurred at that site on 10 May 2022 where an unauthorised person may have been given access to the client’s secure site while the Worker was on duty. The client complained about the matter to the Company with the result that the Worker was immediately place on paid suspension pending an investigation into the alleged incident. The Worker had a number of concerns about the provenance of the complaint against him and showed no willingness to co-operate with the Company’s investigation. The Worker also took issue with the person appointed by the Company to carry out the investigation and challenged that person’s authority to investigate the incident that had allegedly occurred on 10 May 2022. The Worker also said that he wished to have legal representation throughout the process.

The Company placed the Worker on unpaid suspension with effect from 21 May 2022 in response to his ongoing refusal to engage with the investigation process. There were a number of email exchanges between the Worker and Company personnel between June and August 2022 in which the Worker continued to take issue with the Company’s procedures which he alleged were not in accordance with its own written policies. The Worker referred his initiating complaint under the Industrial Relations Act 1969 to the Workplace Relations Commission on 9 August 2022. In his Recommendation that issued on 9 August 2023, the Adjudication Officer who heard the matter recommended that:

“… the Worker engage with the investigation process as proposed by the Employer and that if he wishes to be represented, his representative should be either a work colleague or a trade union official, in line with the Code of Practice on Grievance and Disciplinary Procedures …”.

As stated above, the Worker had already resigned from his employment prior to the date on which the Recommendation issued.

The Worker told the Court that he was seeking compensation of €30,000.00 in respect of his loss of earnings while on unpaid suspension over a period of 59 weeks. He made a detailed submission in relation to what he perceived to be a denial of his rights to natural justice arising from the manner in which the Company proposed to conduct the disciplinary investigation into the alleged incident of 10 May 2022. According to the Worker he had not been furnished with details of the allegation against him; was the denied the opportunity to be legally represented in circumstances where he was not a member of a Trade Union and no colleague available to him was trained in the use of online technology; the investigation was not being led by the person he believed to be his line manager; and the person actually appointed to conduct the investigation was not independent because the Worker himself, in his submission, had raised a similar complaint against him some weeks earlier.

The Company submits that the details of the alleged incident had been fully communicated to the Worker; that the use of an online platform to conduct meetings, including disciplinary investigations, had become commonplace since the Covid-10 pandemic and it would have been technically possible to view the CCTV footage of the alleged incident in the course of an online meeting; that the Worker had never previously taken issue with the proposed online format and, had he done so at the time, an alternative face-to-face format could have been arranged; the Company offered to appoint a different investigator.

Discussion and Decision

The Court does not accept that the Worker was entitled to refuse to co-operate with the Company’s investigation by failing to attend at a scheduled meeting. In circumstances where he had genuine concerns about aspects of the investigation, including the proposed format of the investigation meeting, the proper course of action would have been to attend at the scheduled meeting where those issues could have been ventilated. This would also have afforded the Worker the opportunity to utilise the Company’s internal appeal process and ultimately the State’s dispute resolution machinery if he continued to have concerns.

Likewise, the Court does not accept that the Company took sufficient steps to ally the Worker’s concerns about the conduct of the investigation before placing him on unpaid suspension. No explanation was given by the Company at the within hearing as to why, for example, the Worker was not informed in advance of the investigation meeting about the information it had in its possession – if any – that tended to show that the Worker had in fact committed the security breach as alleged. Furthermore, the Worker’s relatively long service with the Company prior to the events of 2022 appears to have been disregarded in the process.

Having regard to the foregoing, the Court upholds the Worker’s complaint in part and recommends compensation of €5,000.00 be paid to him for the effects of the Company’s inappropriate action of imposing the sanction of unpaid suspension on him. This level of compensation also takes account of the Worker’s contribution to the situation that came about due to his unwise decision not to engage with the Company’s investigation.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CDK	______________________
18 January 2024	Deputy Chairman