EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
David Forrester - claimant UD281/2013
against the recommendation of the Rights Commissioner in the case of:
G4S Secure Solutions Limited - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr C. Corcoran B.L.
Members: Mr J. Horan
Mr J. Maher
heard this appeal at Dublin on 19th March 2014
Representation:
Appellant(s): Mr Dave Curran, SIPTU, Liberty Hall, Dublin 1
Respondent(s): Mr Tim O’Connell,
IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2
The determination of the Tribunal was as follows:-
This case came before the Tribunal by way of the employee appealing the decision of a Rights Commissioner under the Unfair Dismissals Acts, 1977 to 2007 Ref – 126393-UD-12/JW.
The respondent operates as a security company with contracts at various third party locations. The claimant was employed as a security employee in August 2010 with contracted hours of thirty nine hours per week. In December 2010 he noticed that his pay was short nine hours and he contacted the control room to inform them of the shortfall. He believed at that stage the matter would be resolved. By March 2011 it was not resolved and in 2012 every pay cheque was short. He regularly contacted the HR manager who had agreed to deal with the matter on a number of occasions. After some time lapsed the HR manager informed him to contact a senior manager who was now dealing with the matter. The shortfall continued and the senior manager PB failed to resolve the matter. His hours each week continued to reduce and his final week in employment his pay cheque was €50 at which point he decided to leave. His employment ended in August 2012. He could no longer financially live on that income and was forced to leave his rented accommodation.
Over the course of his employment he had always sought additional hours and on one occasion in July 2012 he was assigned to a security job at a bank in Inchicore when on his arrival at the site he was informed that he was not required. The following week he was assigned to a job in Parkgate Street and was informed on his arrival that he was not required. He received a telephone call on a further occasion assigning him to a job on the Nangor Road but was asked to await confirmation before turning up at the location. As he received no confirmation he never went to the location and the claimant was later asked why he failed to show up for the assignment. Regular mix ups with the roster occurred.
The HR manager of the respondent company gave evidence of having responsibility for over one thousand security employees with five hundred client contracts at almost seven hundred and fifty locations. The company had permanent employees and permanent crews and the claimant’s role was to slot in where a permanent crew member was unavailable. The company experienced difficult trading conditions in 2011 and 2012. In agreement with SIPTU the company operated a make up time (MUT) policy where an employee was short on their contracted hours. In February 2012 and May 2012 the claimant applied under the MUT policy and was paid accordingly. The witness agreed that rosters were changed at short notice but denied that the claimant’s rosters were manipulated in any way. Following a number of “no shows” by the claimant and his refusal to work some shifts an investigation meeting was arranged. The claimant failed to attend the meeting on the 30 July 2012. The witness had no dealings with the claimant and had never met with him but had the claimant any issues he should have communicated with his shop steward who would have brought any grievances to his attention.
Determination
The claim under theUnfair Dismissals Acts, 1977 to 2007 was one of constructive dismissal accordingly the onus was on the claimant to make his case.
The Tribunal carefully considered the evidence adduced at the hearing and find that the claimant has not discharged the burden of proof that he was constructively dismissed from his position as a security officer. The claimant failed to provide any evidence of contacting the shop steward in order to resolve the issues he had with the employer. The respondent’s witness confirmed he received no communication from the shop steward on any grievances the claimant had with his employment.
The claimant failed to show evidence of exhausting all avenues before leaving his employment and accordingly, the Tribunal uphold the decision of the Rights Commissioner and the appeal fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)