Security operative with diabetes found asleep on duty wins unfair dismissal case

A security operative with diabetes who was found asleep on duty after being issued a final warning for allegedly urinating into a cup at a client’s premises and throwing the urine onto a public roadway has been awarded €7,000 for unfair dismissal.

The Workplace Relations Commission said that the decision by Synergy Security Solutions Ltd, trading as Synergy Security Solutions, to dismiss Ajibola Bamindele did not come within the band of reasonable responses, and the sanction of dismissal was disproportionate.

Mr Bamindele was seeking adjudication by the Workplace Relations Commission under the Unfair Dismissals Act, 1977. He was employed from March 26th, 2003, as a security operative, and he said he had an unblemished record.

Mr Bamindele has diabetes and was the subject of a disciplinary hearing regarding an alleged incident on December 1st, 2021, where a door was opened in a client premises, and he admitted he urinated into a cup and threw this on a public roadway. He said his medical condition was the reason for his actions and apologised. He received a final written warning for the incident and said he was very stressed as a result.

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Another issue then arose, and an investigation meeting proceeded without his union representative being present in the absence of Mr Bamindele as the representative was on annual leave and had Covid-19.

Stressed

Siptu wrote to the firm and raised concerns regarding the application of the process. Mr Bamindele was only paid salary until December 30th, 2021, but payment was subsequently made until January 11th, 2022, following further correspondence from Siptu as no representative was available.

Mr Bamindele said the company was aware of his medical condition when the second incident occurred. He said he was not well on the day of the second incident and was stressed as a result of the first incident. He is required to take insulin a number of times per day. He said this was not taken into account by the company.

He said that on December 15th, 2021, he worked from 7am to 7pm. He had a flat tyre and said he did not get to sleep as a result.

On December 17th, 2021, he went to work at 7pm. He said he was not feeling well due to his diabetes and took his medication. A demonstration was due to take place that night. He was found asleep and was subsequently dismissed from his post and suspended. He said he did not get the opportunity to explain he was sick.

He said that no clear reason was provided to show why he was dismissed and how the decision had been reached. He submitted that the decision to dismiss was “unreasonable, overly severe and disproportionate”.

He said the procedures were unfair, and he was requested to attend an investigation meeting on two days’ notice, which he said was not enough time. He said his representative emailed the company about this, and the company could have offered a lower sanction. He said the dismissal letter did not set out the reasons for dismissal, which is unfair as he does not know why he was dismissed.

Financial loss

Mr Bamindele said he has ongoing financial loss. He obtained another job at the end of April 2022, at a lower rate of €11.80 per hour instead of €13.75.

In response, Synergy Security Solutions Ltd said that Mr Bamindele was found asleep on duty, which is a very serious matter and usually results in dismissal. The company said this occurred when he was on duty at the office of their largest client who employs 194 of their staff.

A higher level of security was required that evening as there was a planned demonstration, the company said. They said they acted as a reasonable employer in dismissing for sleeping and that fair procedures were afforded in the disciplinary and appeal process, and Mr Bamindele was advised of his right to be represented by a trade union or legal representation.

No evidence

Workplace Relations Commission Adjudication Officer Davnet O’Driscoll said there was no evidence of consideration of the mitigating circumstances and the long service of Mr Bamindele. She said the letter of dismissal did not set out the reasoning for the dismissal, and there was no evidence the company considered the proportionality of the sanction and any alternative to dismissal.

“In all the circumstances, I find the decision of the respondent does not come within the band of reasonable responses, and the sanction of dismissal was disproportionate,” said Ms O’Driscoll.

The adjudicator went on to say that, undoubtedly, Mr Bamindele contributed to his dismissal. She said he mitigated his loss and obtained another role but at a substantially lower rate of pay.

She said Mr Bamindele had a loss of earnings for five weeks of €2,750, and a loss of €68 per week. His total financial loss is €9,482.

“Taking into account his contribution to dismissal, I find it is just and equitable that the complainant be awarded €7,000 in respect of financial loss,” Ms O’Driscoll said.