Complainant

Respondent

Parties

Ireneusz  Urbański

Momentum Support

Representatives

  N/A

Dermot O`Loughlin, Alpha Employment Representation Services

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00068325-001

23/12/2024

The Complainant began his employment as a Security Officer with the Respondent on 20 July 2019. His employment was summarily terminated on 11 October 2024. He asserts that the termination was unfair.

Around 25 July 2024, the Complainant stated that he began experiencing symptoms of enteritis, a gastrointestinal condition that caused considerable embarrassment. Due to the sensitive nature of the illness, the Complainant was reluctant to use the standard workplace restroom facilities located adjacent to the office. Instead, he chose to use the restroom at the nearby fuel station, a location frequented during lunch breaks and where company vehicles were regularly refuelled by the Complainant and colleagues.

On 16 September 2024, the Complainant attended an investigative meeting with the Operations Manager concerning allegations of unauthorised workplace departure and falsification of working hours on 31 August 2024. A disciplinary meeting followed on 7 October 2024. Subsequently, the Complainant was dismissed on 11 October 2024 without have received any prior verbal or written warning.

The Complainant stated that he had maintained a clean disciplinary record throughout his years of service with the company and had no previous complaints against him. He further stated that his medical condition was not disclosed to the Respondent due to embarrassment and a preference to manage the issue privately. Additionally, previous attempts to raise work-related concerns—including an assault by another employee and payment disputes—had been met with no response from management. Consequently, he did not expect support from the management team. He did not dispute the Respondent’s evidence presented at the WRC hearing that he had not highlighted any issues with his line manager at any stage during the disciplinary process that culminated in his dismissal.

The Respondent received a complaint from the operator of the car park where the Complainant was employed as a Security Guard, reporting that a car had been stolen during the period between 02:57 and 04:36 on 31 August 2024, when the Complainant was scheduled to be on duty and in respect of which he had been paid.

On 3 September 2024, the Operations Manager contacted the Complainant regarding the complaint. The Complainant explained that he had not been at his workplace during the relevant time due to gastric issues.

The Operations Manager subsequently invited the Complainant to attend an investigation meeting scheduled for 16 September 2024. Following the meeting, on 27 September 2024, the Operations Manager provided the Complainant with the investigation report, which indicated that the matter was being referred to the Senior Operations Manager for further consideration.

Subsequently, on 2 October 2024, the Senior Operations Manager wrote to the Complainant, inviting him to a disciplinary hearing scheduled for 7 October 2024. Following this hearing, she wrote to the Complainant on 11 October 2024 to confirm the decision to summarily dismiss him. The grounds cited were that he had left the site without authorisation and had falsified time records, resulting in payment for work not performed. It was noted that this was not an isolated incident but had occurred on multiple occasions in the past.

The Complainant appealed the dismissal on 18 October 2024 to the Director of the Respondent. The appeal hearing took place on 4 November 2024, and the decision to dismiss was upheld.

The Law:

Section 6(1) of the Unfair Dismissals Act, 1977 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 were substantial grounds justifying the dismissal.”

Section 6 of the Unfair Dismissals Act, 1977 provides as follows:

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 qualification 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 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.

(6) “In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly of mainly from one or more grounds specified in subsection (4) of this section or that there were other substantial grounds for justifying the dismissal”.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer…. considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal and

b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.,

The Code of Practice

S.I. No. 146 of 2000 of the Industrial Relations Act 1990 Code of Practice on Grievance and Disciplinary Procedures (Declaration) Order 2000, in relevant part, states:

The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear,….and that an internal appeal mechanism is available.

The procedures … must comply with the general principles of natural justice and fair procedures which include:

That employee grievances are fairly examined and processed

That details of any allegations or complaints are put to the employee concerned

That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

FINDINGS

The combined effect of the above sections of the Act requires me to consider if the Respondent’s decision to dismiss the Complainant was reasonable in the circumstances and if it was both substantively and procedurally fair.

In terms of the substantive aspect, it is well established case law that it is the role of the Adjudication Officer to consider the reasonableness of the Respondent’s decision in the circumstances and not to establish the guilt or innocence of the Complainant in relation to the allegations presented. This is helpfully set out by the Employment Appeals Tribunal (EAT) in the case of Looney and Co Ltd v Looney UD 843/1984:

“It is not for the EAT to seek to establish the guilt or innocence of the claimant nor is it for the EAT to indicate or consider whether we in the employer’s position would have acted as it did in its investigation or concluded as it did in its investigation or concluded as it did or decided as it did, as to do so would be to substitute our own mind and decisions for that of the employer.  Our responsibility is to consider against the facts what a reasonable employer in his position and circumstances at that time would have done and decided and to set this up as a standard against which the employer’s actions and decisions are to be judged.”

The function of the Adjudication Officer is therefore to assess what a reasonable employer in the Respondent’s position and circumstances might have done and this is the standard by which the Respondent’s actions must be judged against. 

I note that the Complainant was summarily dismissed because he left his workplace without authorisation and falsified time records, resulting in remuneration for hours not worked. I further note that this conduct was not confined to a single occasion but occurred on multiple instances.

The Complainant admitted that he had, on occasion, departed from the workplace without notifying the Respondent. He asserted that no concerns had previously been raised regarding such conduct. However, it is clear from the evidence that the Complainant failed to inform the Respondent on any of those occasions. It was only when the Respondent’s client expressed concern about the Complainant’s unexplained absence from the site on 31 August 2024—an event which understandably had adverse implications for the Respondent’s contractual relationship with its client—that the Respondent conducted an investigation. That investigation subsequently revealed a pattern of similar unauthorised absences.

The Complainant further stated that he did not disclose the medical condition underlying his gastric issues—allegedly the reason for his absence—because he was embarrassed and felt he had not been treated with sympathy when raising concerns previously. However, I note that the Complainant was unable to provide any adequate explanation, either during the investigation or the disciplinary hearing, as to why he failed to contact his line manager at the relevant time. Notably, at no stage in the internal disciplinary process did the Complainant indicate that he had any difficulties with that individual.

Considering the foregoing, I find that it was unreasonable for the Complainant to have failed to inform the Respondent of his absence, particularly given the foreseeable risk of harm to the Respondent’s relationship with its client. While I acknowledge the Complainant’s previously clean disciplinary record, I cannot disregard the seriousness of the misconduct in question. The unauthorised absences, coupled with the submission of inaccurate time records resulting in unearned remuneration, amount to a serious breach of trust and confidence.

Before determining whether the dismissal fair however, I must also consider whether it was procedurally fair. In this regard, I note that the Complainant was afforded a full investigation into the allegations made against him, was given the opportunity to respond to the findings of that investigation during the disciplinary hearing, and was granted full rights of appeal in respect of the dismissal. He was also given the opportunity to be accompanied at each stage of the process. Furthermore, I note that the decision-maker took time to reflect before ultimately deciding to terminate the Complainant’s employment.

Considering all of the foregoing, I find that the dismissal was both substantively as well as procedurally fair and that the Respondent’s decision to summarily dismiss the Complainant fell within the range of reasonable responses available to a reasonable employer in the circumstances.

I find that the Complainant was not unfairly dismissed for the reasons set out above.