ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013167
A Security Guard
A Security Company
Aisling Murray Michael D. Murray & Company Solicitors
Terence O Sullivan Solicitor
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991
Date of Adjudication Hearing: 21/08/2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien
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(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
For reasons of confidentiality the details of this decision have been kept to a minimum. The Complainant was dismissed and is claiming unfair dismissal. He also submitted claims for non payment of wages and notice.
Summary of Complainant’s Case:
The Complainant was employed from February 10th 2010 to November 15th 2017 as Security Guard.
The Complainant was employed at a Government owned Accommodation Centre by the Respondent.
The Complainant was dismissed for Gross Misconduct over allegations he left a number of people access the Centre which caused distress to some members of the Centre and posed a possible security risk.
The Complainant strenuously denies all the allegations made against him and specifically that he put vulnerable residents at risk and that he was responsible for the unauthorised entry of unknown persons on the date in question.
The Respondent has not established or proven that the Complainant was responsible for the unauthorised entry of a number of unknown persons to the centre.
The Complainant stated that the Centre was not guarded 24/7 and that gaps existed at some time on the provision of Security cover.
The Complainant only started work at 8pm on the day in question and another employee saw the unauthorised visitors at 7.30pm.
The premises are not a secure premises and many people enter and exit in various ways throughout the day.
The Complainant had no power to prevent the entry of unauthorised persons only to record who they were and who they were visiting.
The Respondent allowed non residents entry and to enter the housing blocks.
The Residents list was never up to date and was four or five months out of date.
The Complainant was not happy with the investigation minutes and contain a number of inaccuracies.
The Complainant believes he was the “sacrificial lamb” to satisfy the Respondents client.
Fair and proper procedures were not followed and in particular the Complainant was never shown the CCTV footage of the alleged incident and the Respondent did not view the footage.
The Complainant believes a decision was made to terminate him and the Respondent only went through the motions in the investigation and disciplinary process.
The Complainant submits he was unfairly dismissed and seeks compensation as a remedy for his Unfair Dismissal.
With regard to the Payment of Wages claim the Complainant was entitled to be paid for the following;
In respect of the Bank Holiday October 2017 a sum of 265.20 Euros
In respect of another shift where he worked a sum of 110.50 Euros
In respect of an unlawful deduction to his wages re holiday pay for Nov 23rd 2017 a sum of 200.33 Euros.
A total of 576.03 Euros.
Summary of Respondent’s Case:
The Complainant was provided with a set of instructions which stated that all visitors must be signed in and the vehicle noted and registered with the time of entry, that all non residents are confined to communal areas, they must vacate by 22.00 and that residents names must be checked against the list of residents.
On October 3rd 2017 two cars, with visitors, entered the premises at 9.02 pm and 9.10 pm and were allowed visit the room of Mr. X before they left at 10.10 pm.
It is the Respondents position that the Complainant allowed non residents to enter the premises on October 3rd 2017 without completing any log whatsoever in respect of those non residents. This was a serious breach of security and a number of residents were distressed over the incident.
The Complainant was invited to an investigation meeting and the Complainants Representative could not attend the meeting but advised the Complainant to attend. The Complainant acknowledged at the meeting that checking in visitors was part of his duty.
The Complainant was invited to a disciplinary meeting accompanied by his Representative and the Complainant had only one issue with the investigation minutes.
The Complainant was questioned about the incidents and was not be sure that the passengers in the car were residents and that he left them into the site and that he should have stopped them.
The Complainant and his Representative accepted the seriousness of the situation.
The Complainant was dismissed for gross misconduct and appealed the decision and the decision was upheld.
With regard to the pay issues enquires to the payroll department have advised that the Complainant received all he was entitled to.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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.
The Complainant withdrew the claim under the Terms of Employment Information Act 1993 subsequent to the Hearing Claim Reference Number CA-ooo17076-002.
With regard to the Unfair Dismissal claim the key issues in this case are that it appears the site is not staffed with security guards for a period of a half hour per day. This sets out a position that the site is not a high security risk site. The list of residents did not seem to be kept updated so the Complainant could not be in a position to verify all visitors accurately. Also, people were allowed enter the site by bus on a daily basis with just a check by the bus driver. They were not subject to a security check by the Security Guard. This again shows that the site was not a high risk site. The Complainant was not shown any CCTV evidence of the non residents entering the site despite the Respondent having it available at the time of the investigation. It was also stated that the Complainant should have notified the on site Night Man about the incident but this in itself and the fact that the Complainant had to stay at the entrance absolved him, to a degree, of what was happening on the site with the visitors. It was also impossible for the Complainant to monitor where people went on site while he was at the entrance. Finally, the Complainant had seven years of an unblemished record and was then dismissed on this one incident. Subsequent to the dismissal the Respondent engaged the Complainant for a short period at another site. This action alone shows that the Respondent had confidence in the Complainant to be a Security presence at another one of their clients sites, after his dismissal for gross misconduct. Overall, the above rationale would show that the Respondent, on balance, did not have substantial grounds for dismissing the Complainant and that a lesser disciplinary action, if warranted at all, was more appropriate in the circumstances. I find that the Complainants claim for Unfair Dismissal is well founded and I award him 4,500 Euros compensation. (WRC Reference Number CA-00017076-00). With regard to the pay claims there was no substantial evidence provided by either party to justify or deny the claims and some information regarding pay slips was not available to the Adjudicator. Having considered the merits of the pay claims, on the limited evidence available, I award the Complainant half the claimed amount which is 288 Euros (WRC reference Number CA-00017076-003).
Dated: 25th October 2018
Workplace Relations Commission Adjudication Officer: Peter O'Brien