ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013086
A Security Officer
A Security Company
Citizens Information Service
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 17/07/2018
Workplace Relations Commission Adjudication Officer: David Mullis
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant was employed by the respondent company as a security officer at the Deaf Village Ireland (DVI) in Cabra. He had previously been employed on a Community Employment (CE) scheme at the same location and transferred to the respondent company, which is an external security company, on the 20th of July 2016, at the same location . On the 21st of February 2017 he had an altercation with two security officers employed on the CE scheme by Deaf Village Ireland. Arising from this he was removed from the site by the Deaf Village Ireland supervisor.
Following meetings with and appeals to the Respondent the complainant was eventually confirmed in his dismissal from his employment on the 19th of October 2017.
The complainant is seeking redress for his complaint made to the Commission under section 8 of the Unfair Dismissals Act, 1977.
Summary of Complainant’s Case:
The complainant says that he commenced employment with the respondent company on the 20th of July 2016. He says that on the 21st of February 2017 he had an altercation with two other security personnel. These security personnel were not employed by the respondent but were employed on a CE scheme at DVI.
He says that on the 22nd of February 2017 he met with the supervisor from DVI and explained to him what had occurred and he was invited to a meeting the following day.
That meeting, in fact, took place on the 28th of February when he met with the DVI supervisor and the two security officers who had made the complaint against him. It appears that the supervisor contacted the Respondent advising that the complainant had been sent home and that they required that he be permanently removed from the site by the respondent.
On the 9th of March 2017 the Complainant was advised by letter from the Respondent that they wish to meet with him in the context their performance management and disciplinary procedures concerning the allegations made by the security officers from DVI.
Because of delays arising from public transport industrial action and non-availability of the complainant‘s representative, who was on holidays, the proposed meeting did not take place until the 2nd of May 2017. The Complainant says that this was the first time he had the opportunity to defend himself against the complaints to the Respondent. He was invited to attend a medical assessment with the company’s medical advisors on that day also.
He says that he received a further letter from the Respondent confirming his dismissal with immediate effect. The reasons given for the dismissal were based on the complaint from DVI but he also says that the letter went on to say “following the medical assessment conducted by MedWise which I have enclose for your information I am unable to find suitable alternative employment for you within the required modifications“. The complainant was also advised of his right to appeal the decision and on the 8th of September he lodged his appeal and a hearing was arranged.
On the 9th of October a letter issued from the Respondent to the Complainant confirming the decision to dismiss. The Complainant says that on this occasion the reasons given for the decision were to do with “The depth and scope of your defence is insufficient in addressing the serious nature of the issues”.
The Complainant says that at this point he had been out of work since the 21 February 2017, with no income from any source.
He says that the charge against him was that he assaulted the two security officers. In return he says that he had finished his round of security checks in the Deaf Village and did as he usually did by going to the security hut on his way out. He says that he was prevented from entering the hut in that one of the security guards had put his hand on the Complainant’s chest to prevent him entering. He says he did not understand the reasons for preventing him from entering the hut and says that as a deaf man he has to rely on the visual rather than the verbal in understanding what is going on.. He says this when he eventually understood that the reason he was prevented entering the hut was because it was being cleaned. He says that the security officers concerned were not capable of sign language and that he felt offended and annoyed at his exclusion from the security hut which exclusion was not explained to him. He acknowledged that he had raised his voice and raised his arms in gesticulation and that he was angry - particularly at the hand of the security officer being placed on his chest in restraint. He says that at the meeting on the 28th of February 27, 2017 that he had apologised for raising his voice and being anyway offensive and he extended that apology to DVI and to the Respondent.
He reiterated at the appeal meeting on the 2nd May 2017 that he had not been physically threatening or offensive.-
The complainant summarises his complaints in a letter to the respondent of the 15th of August 2017:
1. That he was dismissed by letter of the respondent on August 11, 2017, but that the disciplinary meeting had taken place on the 2nd of May 2017. He says that this was unreasonable to have him suspended from work without pay for that length of time.
2. That when he went to the meeting that the respondent had arranged on the 2nd of
May 2017 he had concerns about how the meeting was conducted. He said he was not aware in advance that he would be attending for a medical on the same day. Significantly he said that the interpreter provided for the medical and subsequent disciplinary meeting also worked for DVI. He suggests that there was a clear conflict of interest there.
He fails to understand why, if a disciplinary sanction was appropriate, why it could not have been a verbal or written warning in accordance with the sequence outlined in the contract of employment under the heading of disciplinary procedure. He says that neither in the letter of dismissal or the subsequent confirmation of dismissal was he advised of being guilty of “gross misconduct”, attracting instant dismissal.
3. That he never got a real opportunity to defend himself.
4. That there is a lack of evidence to substantiate the behaviour charges against him.
5. That the Respondent, his employer, failed to vindicate his position in its discussions with the client and indeed did not discuss the detail of the issue with him.
Summary of Respondent’s Case:
The Respondent says that they received a call from the client requesting that the Complainant would be removed from working at their site. They say that before the issue came to them that it had been discussed with the Complainant, at the site, with members of the DVI management team.
They say that the the Complainant met with the line management of DVI on the 28th February 2017. They said that the complainant became very angry and aggressive in relation to the charges made against him. He left the office but was encouraged to return.
They say that when this meeting concluded he was “sent home”.
They say that following a number of failed efforts to arrange a meeting with the Complainant, a meeting, with him, was arranged for the 2nd May 2017.
They say that on the 11th August 2017 they wrote to him advising him of his dismissal from the company. He was also advised of his right to appeal and he did so my letter of the 27th August 2017.
The appeal was heard by the managing director of the Respondent company on the 8th of September 2017 and the decision confirmed to the complainant on the 19th of October 2017. This was to the effect that his dismissal was confirmed.
The say that they received the medical advice from their medical advisor arising from the Complainant’s meeting with him on the 2nd of May. They say that the medical advisor originally thought that the assessment was to establish the complainant‘s fitness for work. The Respondent says that they advised the medical advisor that the examination was to establish his fitness to work on other sites not having the same facilities as the DVI site. They say that the medical advisor, in those circumstances, said that they would certify the complainant fit for work, with restriction i.e. that he could not work on his own given his hearing difficulties, They concluded that he was very motivated in relation to work but said that he would need people with sign language to communicate with him and the general public. The Respondent says that as a result of this report they were unable to facilitate the complainant on any other site at which they provided security services.
Findings and Conclusions:
I find that the sequence of events went as follows:
On the 21st and 22nd of February 2017 the alleged incidents took place. The Complainant was interviewed by a supervisor from DVI on those dates. The Supervisor invited him to another meeting which was held on the 28th February 2017.
At that meeting on the 28th of February he was “sent home “by the DVI manager..
The DVI manager sent the complaints in writing to the Respondent.
The respondent then wrote to the complainant laying out the allegations and sought to arrange a meeting to discuss the issues, by letter of the 9th of March 2017. The letter did not include a venue or time for the meeting. By letter of the 27th of March 2017 the same Invitation letter was sent to the complainant this time nominating a venue and time.
By letter of the 25th of April 2017 the Complainant was asked to attend a meeting with the respondents occupational health advisor.
On the 2nd of May 2017 a meeting with the respondent was held.
On the 11th of August 2017 the decision of the respondent was issued to the complainant. This letter confirm the following to the complainant:
“ further to our meeting and the careful consideration of the issues regarding your employment I would like to confirm that you have been dismissed from the company with immediate effect. This however, has not been an easy decision to make following your permanent removal from DVI (at their request).
Following the medical assessment conducted by MedWise, which I have enclosed for your information, I am unable to find suitable alternative employment for you within the required modifications “. They also advised the complainant of his right to appeal this decision.
8. The Complainant did appeal his dismissal by letter of the 15th of August 2017.
9. The appeal hearing took place in the company’s office on the 8th of September 2017, commencing at 14.30 and ending at 15.00.
10. The respondent issued their decision on the 9th of October 2017, following legal advice. The respondent says:
“ prior to this hearing you were advised of the reasons for the hearing and your right to representation. You were subsequently accompanied by a colleague.. A copy of the minutes of that meeting are enclosed.
At the meeting you stated that you should be given another chance because you had apologised for your actions and agreed you had made a mistake.
After meeting you and giving your appeal careful consideration, I feel that the depth and scope of your defence is insufficient in addressing the seriousness of of the issues. Therefore, I hearby advise you that the decision to terminate your employment will remain the same “.
Throughout the period from the 21st of February to the decision on the 9th of October 2017 the complainant had been suspended from work without pay. I find that this is an Inordinately lengthy period to be suspended and particularly without pay.
I do not believe that the incident merited instant dismissal. Indeed the first removal of the Complainant from the place of work was not through his employer, the Respondent.
The contract of employment, under the heading “disciplinary procedure”, says that “Gross Misconduct” includes conduct of such a serious nature that the company could not tolerate keeping the employee in employment. For the mutual protection of the company and its workforce, any employee found guilty of gross misconduct may be summarily dismissed without the need for prior written or verbal warning and without notice or payment in lieu “.
There is no mention in the dismissal letter of the 11th of August of there having been Gross Misconduct on the part of the Complainant and no witnesses were produced to give evidence to this effect, nor was there an allegation of this nature mentioned in the decision communicated to the Complainant on the 9th of October, 2017 following the appeal hearing.
If a disciplinary sanction was required in the circumstances, there were other warning levels that were available, to the Respondent, within the terms of the contract, under disciplinary procedure headings.
Section 6.- (1) of the Unfair Dismissals Act, 1977-2015 provides that “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 was substantial grounds justifying the dismissal“
There is a heavy onus of proof on the Respondent to justify dismissal of an employee and I find that this burden of proof required for dismissal has not been discharged in the instant case.
Section 6 (7) of the Act provides that:
“ without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard maybe had, [if the adjudication officer or the Labour Court] as the case may be, considers it appropriate to do so
To the reasonableness or otherwise of the conduct [whether by Act or omission] of the employer in relation to the dismissal”.
I find that the Respondent did not follow their own rules in deciding dismissal, without providing justification in writing for such sanction.
At hearing the Respondent sought to hide behind the requirements of the client and never sought to attend meetings together with the client and the Complainant and then came to its decision because it was the client’s decision. The Complainant was the employee of the Respondent and their relationship, in these circumstances, is laid out in the contract of employment and was not followed by the Respondent, either in the time taken to process the issue, having regard to the length of time the Complainant was left without income and finally in the sanction applied, which is not allowed for in the contract of employment.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the Claimant was unfairly dismissed and I award him €9,850 compensation for the unfair manner of the dismissal and the wages withheld.
Dated: 31st October 2018
Workplace Relations Commission Adjudication Officer: David Mullis