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‘Breach of trust’: Security guard dismissed for letting site visitor use toilet awarded €21,000

Ciaran Kelly believed distressed man might soil himself so let him into building prior to signing in

Ciaran Kelly said he let a man past security to use a toilet as he feared he would soil himself. Photograph: iStock

Stephen Bourke
Tue Jan 31 2023 - 15:54

A security guard who feared a site visitor would soil himself before reaching a bathroom if he had to wait to sign in was unfairly sacked for letting him past, the Workplace Relations Commission has found.

In a decision published on Tuesday, the commission ordered Securitas Security Services (Ireland) Ltd to pay Ciaran Kelly more than €21,000.

Mr Kelly said he was on duty at a client site guard house on the morning of December 9th, 2020 when the man came to him. “[He] walked up showing an email that he was visiting and asked could he use the toilet as he was bent over,” he said.

“The visitor was clearly in distress and I told him to go to reception in the main building and use the toilet and return to me to get his pass.”

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He said he let the man through the barrier and called his supervisor to tell him the man was “coming down”. He said the supervisor said not to let him down but that he replied that he had to as he feared the visitor was “going to soil himself”.

Suspension

Mr Kelly told the tribunal he believed his employer “would have gone off the head” if the visitor had not made it to the bathroom in time, but as it turned he got a phone call from the Securitas area manager that night suspending him.

He said there were “clear misrepresentations of what happened and what was said” during the disciplinary process which followed and that his view was that the company’s management “had already decided they were going to terminate his employment”.

IBEC representatives Conor O’Gorman and Declan Thomas, who presented the case for the respondent, said it was the firm’s position that Mr Kelly was “dismissed for allowing an unauthorised person on site”. At the time of the incident, they said, Covid-19 cases were “rapidly increasing” in Ireland.

“In an ordinary situation it would be considered serious that a security guard would allow unauthorised entry to a site. When that unauthorised entrant may bring Covid with them it is catastrophic,” they added.

The decision-maker in the disciplinary proceedings, Securitas account manager Brian Doyle, said the complainant “should have followed the procedures strictly as there is no option to divert, to move from them”.

“The job is to only allow restricted authorised access to site,” he said.

Mr Doyle said Mr Kelly “did not log it as an unusual incident, implying he didn’t see anything wrong with what he did”.

‘Breach of trust’

He said his decision was to terminate Mr Kelly’s employment on the grounds of “breach of trust and breach of procedures” and that he “didn’t consider anything other than dismissal”.

Gráinne Quinn BL, instructed by solicitor Liam Sheridan for Mr Kelly, said his employer had “always emphasised… the importance of treating everyone with who he came into contact with dignity”.

Quoting from a company document issued to her client, she said Mr Kelly’s instructions were to be “always approachable and willing to help”.

“Your actions and manner will form an important first impression. There is no second chance to make a good first impression,” she continued.

In her decision on the case, commission adjudicator Caroline Reidy said dismissal was generally a “last resort” and that it had to be justified by “substantial grounds”.

“In this case I do not see that this bar has been met,” she wrote, adding that she did not regard the decision to dismiss Mr Kelly as proportionate.

Mr Kelly had looked for his job back in preference to compensation, but Ms Reidy wrote that she would not make a reinstatement order, finding it was not an “appropriate remedy” given the nature of his former employer’s business and the company’s stance that there had been a breach of trust.

She upheld Mr Kelly’s complaint under the Unfair Dismissals Act 1977 and ordered Securitas Security Services (Ireland) Ltd to pay him €21,216.

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