Complainant

Respondent

Parties

William Dobbyn

Darelli Limited

Representatives

Represented himself

Management Support Services (Ireland) Limited

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00067287-001

07/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00067287-002

07/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00067287-003

07/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 19 of the Carer's Leave Act 2001

CA-00067287-004

07/11/2024

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

CA-00067287-006

07/11/2024

The respondent trades as Top Security and the complainant commenced work as a security officer on January 29th 2018.  He was rostered for two 12-hour shifts at night at the gate lodge of the former Central Mental Hospital in Dundrum.  He was dismissed on May 14th 2024, because he was found not to be alert on duty on May 4th.  He claims that the procedure that ended with his dismissal was unfair.

Chronology Leading to the Dismissal of the Complainant

On November 25th 2023, two operations managers had a meeting with the complainant following reports from a supervisor that he was sleeping and not alert on his shift the previous night at the former Central Mental Hospital.  At the meeting, the complainant said that he was having difficulties with his son, aged three, who wasn’t sleeping.  He told the two managers that he might apply for carer’s leave.

The complainant had been honest with the managers and, due to his circumstances, they decided to “give him a pass” and no disciplinary action was taken at that stage.  The complainant did not apply for carer’s leave and he didn’t ask to change his shift or to move to working days instead of nights.

Around 5.00am on Saturday, March 23rd, 2024, the complainant was again observed by a supervisor to be asleep on duty.  Following a disciplinary meeting on Tuesday, April 2nd, he was issued with a verbal warning.  A written record of the verbal warning was sent to the complainant at home on April 5th 2024.  The warning was to remain “live” on his file for 12 months.

On May 4th 2024 at 4.00am, the complainant missed a call from his supervisor.  When the supervisor went to the site at 4.30am, he found the complainant asleep on duty.       

A meeting to investigate the complainant’s conduct was held on May 9th 2024.  The investigation was conducted by an assistant operations manager and a note of the meeting was included in the documents submitted by the respondent for the hearing.  When he was presented with the statements of the supervisor and a colleague who was on duty on May 4th, the complainant agreed that he had been “napping” while he was on duty.

A disciplinary meeting was held on May 14th.  The note of the meeting shows that the complainant explained that his son wasn’t well and that he intended to apply for carer’s leave or to go down to one shift a week.  After a break, the complainant was informed that his employment was terminated due to gross misconduct.

In accordance with s.6(1) of the Unfair Dismissals Act 1977 (“the Act”), the burden of proving that the dismissal of the complainant was not unfair rests with the respondent.  At the opening of the hearing, I asked Mr Kyne to set out the substantial grounds justifying the dismissal of the complainant in this case.

In Mr Kyne’s submission, he set out the background to the dismissal of the complainant.  He said that he was dismissed on May 14th 2024 because, on the morning of Saturday, May 4th 2024, he was found to be unalert on duty.  Mr Kyne said that failure to be alert on duty is a breach of a core element of the contract of employment for security officers and a breach of the relationship of trust and confidence between a security officer and their employer.  Mr Kyne said that there were no other issues that contributed to the dismissal of the complainant. 

May 4th 2024 was the third time that the complainant was observed by a supervisor not alert on his shift.  In November 2023, Mr Kyne said that he was counselled about the seriousness of his misconduct.  Due to his clean disciplinary record, and the mitigating circumstances related to his young son, he was given a chance at that time and no disciplinary sanction was applied.

In the four months between the incident in November 2023 until March 2024, the complainant did not apply for carer’s leave.  When he was discovered to be asleep on duty on March 23rd 2024, he received a verbal warning.   

A short few weeks later, on May 4th, the complainant was again found to be asleep on duty.  At the meeting to investigate this conduct, he admitted that he was taking a nap.  It is the respondent’s position that he was not awake and not carrying out his duties as a security officer.  Mr Kyne submitted that this was a grave breach of trust and negates the purpose for which the complainant was employed.

At the investigation meeting on May 9th and again at the disciplinary meeting on May 14th, the complainant’s explanation was considered, but was not sufficient to avoid the sanction of dismissal.  Mr Kyne said that the complainant had received the benefit of the doubt on two previous occasions and had been given a chance, in circumstances where his actions could have resulted in dismissal.  He said that failure to remain alert on duty is a serious matter, and is considered to be gross misconduct.  Mr Kyne submitted that the dismissal of the complainant was not related to the fact that he has a son who was having difficulties sleeping or that he was thinking of applying for carer’s leave.  The complainant never applied for carer’s leave, although he had an opportunity to do so after the first incident in November 2023.

It is the respondent’s position that the dismissal of the complainant was based on a valid and substantial reason and that the procedure was fair.  Mr Kyne submitted that the decision to dismiss the complainant was proportionate to the fact that he was found not to be alert on duty, a fact that broke the relationship of trust that the company was entitled to have in him that he would complete his duties with honesty and integrity.

In his submission, the complainant said that on November 25th 2023, he attended the head office of the respondent for what was referred to as “a chat” about being alert on duty.  He explained to the two operations managers that his father was in hospital and that his son wasn’t sleeping and was being assessed for autism, which was causing a strain on the family.  The complainant recalls being told that he was “getting a pass” regarding the incident, because he had a good record over the previous five years.  He remembers that he was told that if it happened again that a discussion could be had about moving to a day shift or a different site.  He said that he didn’t receive any notes of this meeting.

On April 2nd 2024, the complainant said that he was asked to attend a meeting in the head office and, as he walked in the door, a remark was made, “Ah, you were asleep and a written warning will be posted to your house this evening.”  The complainant said that he asked Mr Gibbons why he wasn’t getting a verbal warning and he was informed that he had got a verbal warning over the November incident.  The complainant said that he reminded Mr Gibbons that he had been given a pass in November and he claims that Mr Gibbons’s response was hostile but that he said, “Okay, you can take this as a verbal warning.”  The complainant said that the meeting lasted less than a minute and that he wasn’t asked to explain what happened.  He said that, when he looked for his data from the company, there was no note of this meeting in his file.

On May 4th 2024, the complainant’s supervisor found him asleep on duty.  At the hearing of this complaint on April 4th 2025, he said that he was removed from the roster, but then he was informed that that was a mistake and he was put back on the roster.

The complainant’s submission contains a record of the disciplinary meeting that took place on May 14th 2024 to discuss the May 4th incident.  The note records that the complainant said that he nodded off on duty, as reported by the supervisor.  The note also records that Mr Gibbons referred to the verbal warning he received on April 5th 2024 regarding the incident on March 23rd.

The note shows that the complainant explained that he had a child at home who wasn’t well and that he would apply for carer’s leave or he might reduce his shift to one night a week.  The note also shows that Mr Gibbons suspended the meeting for a few minutes.  When the meeting resumed, Mr Gibbons told the complainant that he sympathised with his circumstances, but that he was being dismissed.  He told him that he would be paid in lieu of four weeks’ notice and that he would receive his holiday pay in his final wages.

It is the complainant’s case that, rather than dismissal, the next disciplinary sanction should have been a written warning and that his dismissal on May 14th 2024 following a verbal warning was unfair.  His also complains that he was not informed about the reason for his dismissal.

In his submission, the complainant said that he has no recollection of ever receiving a copy of the company’s grievance procedure, until September 2024, four months after he was dismissed.

The Legal Framework

Section 6(1) of the Unfair Dismissals Act 1977 (“the Act”) provides that,

“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.”

It is apparent from this that every dismissal is unfair until the employer demonstrates otherwise.  The burden of proof therefore rests with the respondent to set out the substantial grounds justifying the dismissal of the complainant in this case. 

Section 6(4)(b) of the Act provides that,

“…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 …the conduct of the employee.”

While the responsibility for proving that a dismissal is not unfair rests with the employer, at this section 6(4)(b), the legislation recognises the right of an employer to dismiss an employee for conduct that, considered by another reasonable employer in similar circumstances, is unacceptable or unreasonable[1].  The complainant was not issued with a letter of dismissal; however, we know from the outcome of the disciplinary meeting on May 14th 2024, that he was dismissed because he fell asleep on duty on the morning of May 4th and that this was the third time in six months that this had occurred.

Was the Decision to Dismiss Reasonable and in Proportion to the Conduct?

The reasonableness or otherwise of an employer’s decision to dismiss an employee was considered in 2012 in the Circuit Court appeal of the determination of the Employment Appeals Tribunal (EAT) in Allied Irish Bank plc v Purcell[2].  Mr Purcell was dismissed when he looked at the bank accounts of his colleagues and another person who was not a bank employee.  Setting out the approach of the Court to the process of reaching a decision on the appeal, Ms Justice Linnane referred to what is conventionally known as “the British Leyland test[3],” which requires the decision-maker to ask if it was reasonably open to the employer to make the decision it made.  Regarding how the test should be framed, Judge Linnane stated:

“It is clear that it is not for the EAT or this court to ask whether it would dismiss in the circumstances or substitute its view for the employer’s view but to ask was it reasonably open to the respondent to make the decision it made rather than necessarily the one the EAT or the court would have taken.”

It is not for me therefore, as the adjudicator in this matter, to consider if the complainant should have been dismissed, but to ask if it was reasonably open to his employer to make the decision it made, or if could they have made a different decision and applied a lesser sanction.  Based on the evidence presented to me, I must consider if the decision of the respondent was that of “a reasonable employer in those circumstances in that line of business.”[4]

It seems to me that the fundamental basic contract between a security company and a security officer is based on an undertaking that the employee will remain awake and on duty for the length of their shift.  Although, on his shift on May 3rd – 4th 2024, the complainant was on duty with a colleague, the nature of the security business is such that many employees will be required to work alone.  They are also required to work on client sites and are not capable of constant observation – at least by a supervisor on site.  This is the context in which an employer must have confidence that an employee will remain alert for the duration of their shift.  The failure of a security officer to fulfil this basic requirement places the contract and the reputation of the company at risk.

A copy of the complainant’s contract of employment shows that, on April 13th 2019, he signed a statement to indicate that he had “received, read and understood the company code of conduct which applies to all uniformed personnel.”  The code of conduct contains a list of examples of gross misconduct, which, it states “may result in immediate dismissal without notice or pay in lieu of notice.”  At number 2 on this list is the offence of “sleeping / not fully alert while on duty.”  It seems to me that, in November 2023, it would not have been unreasonable for the respondent to dismiss the complainant, but his explanation that his young child wasn’t well was accepted as a valid reason for his tiredness and, to use Mr Kyne’s phrase, “he was given the benefit of the doubt.”  A similar incident occurred in March 2024, and the complainant was issued with a verbal warning, following his resistance to being issued with a written warning.  Again, some leeway was applied.  Until November 2023, he had had a clean record for five years.  When he was found to be asleep on duty on May 4th 2024, there was no doubt about his condition.  His supervisor attempted to contact him and when he didn’t respond, he was discovered asleep a half an hour later.  A colleague reported that he had been asleep for four hours.   

It is my view that another reasonable employer in the same circumstances would have dismissed the complainant and I find that the decision to dismiss him was not unfair.

Procedural Fairness

The unfairness that is at the root of the complainant’s claim is his contention that he wasn’t informed that he would be dismissed if he was found asleep on duty, and secondly, rather than being dismissed, he should have been issued with a written warning.  The record of the verbal warning issued on April 5th 2024, makes no mention of the implications of a repeat offence, but asks the complainant to “give this issue your immediate attention to ensure that there is no further reoccurrence of this or any other matter.”

The absence of a clear statement that another incident of sleeping on duty will result in dismissal is not a statement of the opposite, that another incident will NOT result in dismissal.  The complainant is not blind to the nature of the employment relationship and it is my view that, from November 2023, he was on notice that his conduct was placing his job at risk.

Evidently, when the complainant wasn’t alert at work on November 24th 2023, there was some leeway given.  There had been no issues for five years and his explanation that his son was being assessed for autism was received with some understanding.  When he was asleep again on March 23rd 2024, he received a verbal warning, although at the outset of what seems to have been a very short meeting, the operations manager indicated that he intended to give him a written warning.

The complainant’s contention is that he was entitled to another chance and, after he was found asleep on May 4th 2024, rather than being dismissed, he claims that he should have been given a written warning.  If I accept the complainant’s argument that a written warning might have saved his job, then I must assume that he was naïve to the meaning of the “benefit of the doubt” in November 2023 and the verbal warning in April 2024.  I observed at the hearing that he is not naïve.

From the perspective of the employer in this case, the handling of this disciplinary incident was complicated by the decision not to dismiss the complainant for the first incident in November 2023.  As sleeping or not being alert on duty is listed under the heading of gross misconduct in the code of conduct, as long as the disciplinary investigation and hearing were conducted fairly, it is my view that a dismissal in these circumstances would not have been unfair.  The situation was further complicated in April 2024, when the complainant was issued with a verbal warning for what was a dismissible offence.  When he was finally dismissed on May 14th 2024, the disciplinary procedure had reached only the second stage of a three-stage process.

The problem of defects in a disciplinary process was addressed by the High Court in 1987 in Loftus and Healy v An Bord Telecom[5], where Mr Justice Barron stated that, it wasn’t a question of whether the former employees were deprived of procedures to which they were entitled, but,

“…whether the denial to them of such procedures is such that the defendant must be deemed to have failed to establish …(the basis of its dismissal) as the whole or the main reason for and justifying their dismissal.”

I am satisfied that the complainant understood the reason for his dismissal and that he understood also that, from November 2023, he was at risk of being dismissed if he was found to be asleep on duty again.

Conclusion

The balance between the reasonableness of the decision to dismiss an employee and the reasonableness of the procedures is not an even one.  In my task to decide on this matter, I must take account of all the circumstances, including the seriousness of the complainant’s conduct, the breach of trust between him and his employer and the early attempts to avoid dismissal.

Having listened to the evidence at the hearing, and, taking account of the submissions and the arguments presented by both sides, I find that the respondent had reasonable cause to dismiss the complainant, but that, because of their failure to follow fair procedures, his dismissal was unfair.  It is my view that, having started down the path of the disciplinary procedure, the correct approach in May 2024 was to issue the complainant with a final written warning with a clear statement that his employment would be terminated if he was found to be asleep on duty again.  As this was the third occasion on which he was found not alert on duty at night, his dismissal may have been avoided if he had been transferred to a day shift.

I have decided that the complaints submitted under the Parental Leave Act 1998 and the Carer’s Leave Act 2001 are not well founded.

I have concluded that the dismissal of the complainant was procedurally unfair, and I decide therefore that his complaint under the Unfair Dismissals Act 1977 is well founded. 

I find that, by his actions, the complainant was responsible for his dismissal.  Considering the amount to be awarded in redress, I note that he was paid for four weeks in lieu of notice and I therefore direct the respondent to pay him compensation of €1,312, equivalent to four weeks’ pay.  This award is in the form of loss of earnings and is subject to the normal deductions of tax, PRSI and USC.

Dismissal procedure