UDD1953

FULL RECOMMENDATION UD/19/42 DETERMINATION NO. UDD1953 ADJ-00016029 CA-00020810-001 SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : GOLDEN DALE UNLIMITED COMPANY (REPRESENTED BY MAIREAD MCKENNA B.L., INSTRUCTED BY ARTHUR COX, SOLICITORS) - AND - JOHN PATRICK SHAW (REPRESENTED BY ANDREW WALSH, B.L., INSTRUCTED BY EAMONN HAYES, SOLICITORS) DIVISION : Chairman: Ms O'Donnell Employer Member: Mr Murphy Worker Member: Ms Treacy

SUBJECT:
1. An appeal of an Adjudication Officer's Decision no. ADJ-00016029.


BACKGROUND:

2. The Complainant appealed the Decision of the Adjudication Officer to the Labour Court on 18 February 2019 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 5 September 2019. The following is the Determination of the Court:-

DETERMINATION :

This is an appeal by John Patrick Shaw (hereafter the Complainant) against an Adjudication Officer’s Decision ADJ-00016029 given under the Unfair Dismissals Acts 1977 to 2015 (the Act’s) in a claim that he was unfairly dismissed by his former employer Golden Dale Unlimited Company (hereafter the Respondent). The Adjudication Officer held that the complaint of unfair dismissal was not well-founded.

Background

The Complainant commenced employment with the Respondent on 12^th January 2002 and was transferred internally on the 8^th April 2013 to the position he held as a Security Guard at time of his dismissal. His employment came to an end by way of dismissal on 27th March 2018. Dismissal is not in dispute and, in those circumstances, it is for the Respondent to show that the dismissal was fair.

Respondent’s case

It is the Respondent’s submission that the Complainant was not unfairly dismissed. He was dismissed by reason of gross misconduct and dereliction of duty while also having a live final written warning on his personnel file. On the 13^th February 2018 it was alleged that a number of incidents occurred during the Complainant’s shift which led to the Respondent initiating an investigation process. It was specifically alleged that:-

• a) The Complainant left his workplace and took a Company vehicle off-site without authorisation; and

  b) He fell asleep on two occasions during his shift.

A meeting was held with the Complainant on the 16th February 2018. Mr Conor Maguire, the Respondent’s Head of Security, informed the Complainant of the alleged incidents and advised him that he was being placed on paid suspension pending an investigation into the alleged incidents. Mr Maguire in his evidence told the Court that on the date in question he received a call to say that the Company jeep was in Cashel. He rang the lodge and was advised that the Complainant was in the jeep doing his patrol. A short time later the Complainant rang him back to say that he had gone into town for chips and that he, Mr Maguire, was trying to sack him. At the end of the shift, Mr Maguire received two picture messages from another member of staff showing the Complainant asleep at the desk in the lodge, on two different occasions during that shift. On the 22nd February 2018 Ms Aideen Roche, HR Manager, sent a letter to the Complainant setting out the allegations and that an investigation into the allegations would be carried out by Mr Maguire. Enclosed with the letter were copies of witness statements, a copy of the tracker data from the Company jeep and a copy of shift procedures. The letter went on to advise that this was a serious matter and that his future employment with the Respondent could be at risk. A copy of the disciplinary procedure was also enclosed and he was advised of his right to be accompanied at the meeting. It was Mr Maguire’s evidence to the Court that the investigation meeting with the Complainant took place on the 26^th February 2018 and that the Complainant chose not to bring a colleague to the meeting. Mr Maguire issued an investigation report which recorded the fact that the Complainant did not dispute the fact that the issues had occurred but it was his belief that other staff had fallen asleep on shifts and that it was not uncommon for staff to leave the grounds. However, he was unable to identify any specific staff who had done this. It was put to Mr Maguire in cross-examination that the security lodge could get very warm because you cannot open windows. Mr Maguire did not accept this and submitted that there was an air handling system in place and that the heating could be controlled from inside the lodge. Mr Maguire confirmed that he had not received any complaints in relation to the working environment in the lodge. Mr Maguire disputed that the Complainant had permission to leave the site.

The next witness for the Respondent was Mr David Gleeson a Director of the Respondent, who held the disciplinary meeting and made the decision to dismiss the Complainant. By letter dated 12^th March 2018 Mr Gleeson invited the Complainant to a disciplinary hearing on the 15^th March 2018. A copy of the investigation report was attached to the letter. The Complainant was again informed of his right to be accompanied. He was also informed that this was a serious matter and that his future with the Respondent could be at risk. In his evidence to the Court Mr Gleeson stated that the Respondent chose not to bring a colleague. Mr Gleeson went through the allegations and the Complainant confirmed that he was not disputing that these incidents occurred. However, he felt the relationship with his supervisor, Mr Maguire, was not great and that was why these issues were being pursued. The Complainant mentioned issues relating to his leg and to the fact that he was taking medication that he believed could make him drowsy. The Complainant confirmed to Mr Gleeson that he had not gone to his Doctor and that the medication had not been prescribed by his Doctor. Mr Gleeson, in his evidence to the Court stated that in coming to the conclusion to dismiss, he took into the account the incidents that had occurred, the Complainant’s response to those incidents, the importance of the assets on site, the need for a 24/7 security presence and the duty of care owed to the other personnel who are on the site. The issues being raised were serious issues and he thought about them long and hard but felt taking into account the fact that the Complainant was already on a final written warning for leaving the site early on two previous occasions that dismissal was the only option. It was Mr Gleeson’s evidence that he believed that the Complainant was not cognisant of the seriousness of what he had done despite his previous warning.

The final witness for the Respondent was Mr Mike Ryan, Financial Controller of the Respondent who heard the appeal. The Complainant appealed the outcome by letter dated 6^th April 2018. In his appeal he stated that there were strong mitigating circumstances. In his view the assessment of the security exposure was exaggerated and the fact that he had fallen asleep was outside his control. In relation to the existing warning, it related to a time when there was a bereavement in his family but he had not declared that at the time. It was Mr Ryan’s evidence to the Court that the Complainant attended the hearing with his Solicitor and that the information he put forward was that Mr Maguire was out to get him, the medication he had taken had made him drowsy and that it was common practice for people on night shift duty to fall asleep. Mr Ryan told the Court that he had clarified with the Complainant if he had ever made a complaint about Mr Maguire and that the Complainant confirmed that he had not. The Complainant accepted that he had presented fit for work on the night in question and had not told anyone about the medication he was taking.

In relation to the Complainant’s assertion that it was common practice to fall asleep on night duty he was not in a position to put forward any names that would support this contention. It was Mr Ryan’s evidence that he checked through the Company records but could not find any record of someone being disciplined for being asleep at their work station. It was Mr Ryan’s evidence to the Court that when coming to the decision to uphold the finding he took into account the existence of a previous final written warning, the fact that he felt that the Complainant did not appreciate the seriousness of what he had done and that no additional information had been forthcoming. In cross examination Mr Ryan was asked if he accepted that the conditions in the lodge were conducive to someone falling asleep. Mr Ryan did not accept this contention. The Representative for the Respondent submitted to the Court the case law they were seeking to rely on to support their contention that dismissal in the circumstances of this case was fair.

Complainant’s case

It is the Complainant’s case that his dismissal by the Respondent was disproportionate and unfair given the circumstances. The Complainant in his evidence to the Court did not dispute that the incidents had occurred. It was also his evidence that he had no issue with the disciplinary procedures followed by the Respondent. In relation to going off-site it was his evidence that he had not eaten all day and was coming to the end of his patrol prior to his break so that he was only not available for approx. 10/20 minutes. It was his evidence that from time to time people leave the site to go for food. In relation to falling asleep, it was his evidence that on each occasion it was only for three or four minutes. It was very warm in the lodge, windows cannot be opened so he must have just drifted off. The Complainant told the Court that he has an underlying medical condition which can flare up. On the occasion in question he felt that if he took the medication, he would be okay to do the shift. He did not want to leave the Respondent short-staffed at short notice and that was why he went to work. Under cross-examination he accepted that he had not informed his work partner on that shift that he was leaving the site. He told the Court that they did not get on and that was why he had not mentioned it. The Complainant also accepted that it was not okay to fall asleep on the job but on that shift he had nodded off because of the medication he had taken. He had thought he was doing the right thing by coming to work and not ringing in sick at the last minute.

It was the Complainant’s submission that dismissal was an extreme sanction and a lesser sanction should have been considered. In support of this contention the Representative for the Complainant submitted to the Court the case law they were seeking to rely on.

The Law

Section 6 of the Unfair Dismissals Act 1977, as amended, states, in relevant part, as follows:

• 6.—(1) 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.
  
  (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
  
  • (a) the capability, competence or qualifications of the employee for performing work of the kind which 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 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 any statute or instrument made under statute.

Issue for the Court

Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Discussion

In this case the conduct of the Complainant is not disputed and therefore the question to be considered by the Court is whether the Respondent acted in a reasonable manner in coming to the decision to dismiss. The test for reasonableness was set out in Noritake (Irl) Ltd v Kenna (UD 88/1983) as follows:-

• 1) Did the company believe that the employee misconducted himself as alleged?

  2) if so, did the company have reasonable grounds to sustain that belief?

  3) if so, was the penalty of dismissal proportionate to the alleged misconduct?

The issue was further considered in Bank of Ireland v Reilly [2015] IEHC 241 which was citied by both parties to this case where Noonan J. noted that s6(7) of the Acts makes it clear that a court may have regard to the reasonableness of the employer’s conduct in relation to the dismissal. However,

• “that is not to say that the court or other relevant body may substitute its own judgment as to whether the dismissal was reasonable for that employer. The question rather is whether the decision to dismiss is within the range of reasonable responses of a reasonable employer to the conduct concerned”

In this case it was not disputed that the incidents had occurred. The evidence given to the Court by the Respondent’s witnesses was that the Complainant, while accepting that the incidents occurred, did not appear to consider them serious incidents and it was the lack of awareness of the potential seriousness which led them to the decision to dismiss. The Court is of the view that, applying the ‘ratio’ of the cases cited above to the facts of this case, the decision to dismiss falls within the “range of reasonable responses of a reasonable employer” and, therefore, the Court determines that the decision to dismiss was fair.

Determination

The Court determines that the complaint is not well-founded. The Decision of the Adjudication Officer is upheld. The Court so determines.

Signed on behalf of the Labour Court



Louise O'Donnell
CR ______________________
1st October, 2019 Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.