Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 1370/03

CLAIMANT: James Adams

RESPONDENT: Surety International Security Limited

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed nor did he suffer a breach of contract or a breach of the Working Time Directive and those claims are dismissed. The respondent did not provide to the claimant written terms and conditions of employment.

Appearances:

The claimant was represented by Mr S Ham of Counsel, instructed by P R Hanna, Solicitors.

The respondent was represented by Mr P Coll, of Counsel, instructed by McKeowns, Solicitors.

Sources of Evidence

1. The tribunal heard evidence from the claimant and his witness John Patrick Ormistry and for the respondent from Walter Bill Harrison, operations manager, Sarah Josephine Connell, managing director, and Joan Elizabeth Sharples, shift leader. The tribunal also received 3 bundles of agreed documents amount to 119 pages.

The Claim and Defence

2. The claimant claimed unfair dismissal, breach of contract, breach of the Working Time Regulations and failure to provide written terms and conditions. The respondent denied the claimant's claims and stated that he had been dismissed for gross misconduct.

The Issues

3. (a) Was the claimant unfairly dismissed?

(b) Did the respondent fail to provide the claimant with written terms and conditions of employment?

(c) Did the respondent breach the claimant's contract of employment?

(d) Did the respondent breach the Working Time Regulations?

(e) If yes to any of the above what is the appropriate remedy?

Findings of Fact

4. (a) The respondent employed the claimant from 31 October 2001 to 20 February

2003 as a security officer. The respondent is a security firm and it provided

security services at Larne Harbour.

(b) The claimant was born on 14 February 1985.

(c) While on night shift at Larne Harbour on 14 February 2003 the claimant and his shift leader were discovered asleep while on duty. The claimant from the outset admitted that he had fallen asleep.

(d) The staff handbook describes sleeping as an example of gross misconduct and the claimant did not suggest that he was unaware of that.

(e) An investigation was carried out at which the claimant admitted having fallen asleep while on duty.

(f) The claimant claimed that there was a culture of security staff sleeping while on duty and that this was known to management.

(g) The respondent carried out a disciplinary hearing. The claimant was aware of the charge against him. He was offered the right to be accompanied. He had the right to be heard.

(h) The claimant did not criticise the disciplinary hearing.

(i) An appeal hearing was heard. At the appeal hearing the claimant was prevented from stating what other shift leaders had told him about sleeping on duty.

(j) The claimant was not provided with written terms and conditions of employment.

The Law

5. (a) To establish that a dismissal is not unfair an employer must establish the

reason for the dismissal and that it was one of the statutory reasons that can

render a dismissal not unfair. If an employer satisfies both of the above

requirements then whether the dismissal was unfair or not depends on

whether in the circumstances the employer acted fairly and reasonably in

treating the reason as a sufficient reason for dismissing the employee.

(b) Where an employer dismisses an employee for misconduct he must have a reasonable belief that the employee has committed an act of misconduct after having carried out a reasonable investigation (to include a disciplinary hearing and appeal) and dismissal must be within the range of reasonable responses.

Application of the Law and Findings of Fact to the Issues

6. (a) The respondent has established the reason for dismissal and that it is a

statutory reason i.e. misconduct.

(b) The respondent carried out a reasonable investigation particularly as the claimant at all times admitted the offence.

(c) The respondent carried out a reasonable disciplinary hearing. The claimant knew the charge against him. He was offered the right to be accompanied and he was able to state his case.

(d) Dismissal of a security man who falls asleep on duty is within the range of reasonable responses even for a first offence in the circumstances of the present case.

(e) There was not any persuasive evidence that there was a culture of sleeping on duty among the security staff at Larne Harbour or that management knew of such a culture.

(f) Management was aware of the claimant's medical condition of suffering from migraine at the disciplinary hearing and at the appeal hearing.

(g) The respondent had a reasonable belief that the claimant had committed an act of misconduct having carried out a reasonable investigation and dismissal is within the range of reasonable responses.

(h) Accordingly, the claimant's dismissal is not unfair and his claim for unfair dismissal is dismissed.

(i) There was not persuasive evidence before the tribunal that the Working Time Regulations had been breached and that aspect of the claimant's claim is also dismissed.

(j) The claimant was not provided with written terms and conditions of employment.

(k) The respondent did not breach the claimant's contract of employment.

Chairman:

Date and place of hearing: 6 January, 8-9 March and 12 April, 2005, Belfast.

Date decision recorded in register and issued to parties: