EMPLOYMENT APPEALS TRIBUNAL
CLAIM(S) OF: CASE NO.
Wojciech Burek - claimant
UD972/2012
against
Synergy Security Solutions Limited - respondent
under
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr T. Taaffe
Members: Mr J. O'Neill
Mr N. Dowling
heard this claim at Dublin on 7th October 2013 and 3rd March 2014
Representation:
Claimant: Mr. John Curran B.L. instructed by Patrick Donaghy & Co,
Solicitors, 13/16 Dame Street, Dublin 2
Respondent: The Commercial Director of the company.
Summary of the case:
The claim before the Tribunal was one of constructive dismissal. The claimant was employed by the respondent as a security guard from September 2010. During his employment the claimant worked at a number of locations. When the claimant initially commenced employment he worked 9 hours every second day with a premium for night work, Sunday work and double-time for bank holidays. The Training Manager met with the claimant and other employees in September 2011. The company offered a flat rate per hour of €10.01 to employees but with an increase in the average week to 48 hours. This followed a Court ruling that the legislation delegating powers concerning pay and conditions to Joint Labour Committees (JLCs) was unconstitutional. Following the High Court decision Employment Regulation Orders ceased to have statutory effect from 7 July 2011. The Manager presented a document to the employees at the meeting for them to sign their acceptance which the claimant did. The Training Manager acknowledged that this document did not outline the loss of the premium for Sunday and night work or the loss of double time for working bank holidays, but he had explained this to the employees at the meeting. In addition overtime would only be paid after working 48 hours. In reply to questions from the Tribunal, the Manager stated that from the meeting the employees would have known that the contract of employment was varied by these new conditions.
It was the claimant’s evidence that he began to be based for the majority of his shifts at a bus depot. There was a disagreement between the parties as to whether or not the number of shifts the claimant worked at the bus depot decreased or increased prior to his resignation. After a number of months at the bus depot the claimant was informed that the hours at the depot were reducing. The claimant’s hours as a result reduced from 39 hours to 24 or 27 hours. The claimant was now working 6 hours every second day and he requested additional hours on other sites.
The claimant’s role entailed searching buses in the depot for people at night and contacting the supervisor of the bus company if anyone was found on board. The claimant stated that there were often people on the buses and he was unhappy working at the bus depot. The claimant sent an email to Mr. R of the company in September 2011 outlining his difficulty with the site, having already spoken to Mr. R verbally about it. The claimant did not expect his location to be changed immediately but he was continually told by Mr. R to give him more time and that he would be given some assistance at the depot. However, the situation remained unchanged. The claimant requested annual leave online in or around the end of October 2011 but he did not receive a response.
A series of emails sent by the claimant in January and February 2012 and to which he did not receive a response were opened to the Tribunal. He sent these emails to either the human resources department or to Mr. R. The emails related to an issue regarding a further request for annual leave, holiday hours owing and his request for a full-time contract. The claimant also outlined the difficulty he had in being paid for expenses properly owing to him by the company.
On 6th February 2012 the claimant received the first response to his requests for a transfer. The response came from the Operations Manager and the claimant responded to him that matters at the bus depot had begun to adversely affect him.
The claimant emailed the human resources department on 9th and 13th February and on 7th March 2012 concerning his need to take two weeks holidays and stating that he was tired and negatively affected by work. The Roster Manager subsequently finally approved one week’s holidays for him at that time.
The claimant was absent on sick leave from 9th March 2012. During this time he wrote an email dated 12th March 2012 to the General Manager stating “all my requests were ignored by operation managers and the HR department.” He did not receive a response from the General Manager but was contacted by the human resources department to say that the Commercial Director would meet with him.
A meeting was held on 27th March 2012. An earlier date for the meeting was cancelled by the claimant. The Tribunal was informed that there were no agreed minutes of the meeting between the claimant and the Commercial Director. At the meeting a number of issues were discussed. The claimant raised the issue that his banked holiday hours had “disappeared” and that his requests for annual leave were ignored. The Commercial Director was to look into this for the claimant. The claimant was informed that he was in breach of his contract if he refused to work at the bus depot. The claimant also raised the issue that he was no longer paid premiums for certain shifts since September 2011 but that he was supposed to be guaranteed 48 hours work in lieu of the premium.
The claimant was absent on a further period of sick leave from 28th March 2012 to 3rd April 2012. During this time he received a telephone call from the Roster Manager who asked the claimant would he come back to work if he was moved from the bus depot.
The claimant had no further contact from the Commercial Director from the time of the meeting on 27th March 2012. The claimant tendered his resignation three weeks later on 19th April 2012 as he did not receive a response from the company regarding the issues he had raised. He did not receive a response or an acknowledgment of his resignation from the company. A solicitor acting on his behalf wrote a letter dated 23rd April 2012 to the company setting out the reasons for the resignation and his upset at what had been said to him at the meeting on 27th March. The claimant gave evidence of his loss and his efforts to mitigate that loss.
The Operations Manager stated when his colleague Mr. R departed the company on 9th February 2012 he became responsible for the claimant. He was contacted by the human resources department and informed that the claimant had raised issues about the bus depot site and expressed a wish to transfer. When he spoke with the claimant by telephone in early February 2012 the claimant expressed his unhappiness with the working conditions and asked to be transferred. The claimant in evidence did not recall any such telephone call being made to him. The Operations Manager stated that meetings followed where he discussed the issue with the human resources department and the rostering department. The Operations Manager organised a meeting with the claimant in March 2012 to allow the claimant to set out his views but the claimant was then absent on sick leave. He attempted to telephone the claimant but did not receive a response. The claimant in evidence had no recollection of being given notification to attend a meeting on 15th March.
It was the Roster Manager’s evidence that the claimant did not seek to take his outstanding annual leave hours from the previous year. As per the contract of employment if such hours are not taken then they are lost. An employee applies online for annual leave and no such online request was received from the claimant. The Roster Manager stated that the first he heard of the claimant seeking annual leave was in early 2012 when he was contacted by the human resources department. The Roster Manager spoke to the claimant who confirmed that he was seeking one week’s holidays which he then approved for the claimant.
Around the time that the claimant returned from annual leave the Roster Manager became aware that the claimant had an issue with the bus depot site. Prior to February 2012 he had no knowledge that the claimant was seeking a transfer. Another employee was identified to train on the site in place of the claimant and the claimant was informed of this. However, there was a setback when the customer complained about this employee as they preferred the claimant. In any event the claimant was aware that the company were working to transfer him. Another employee was subsequently put in place when the claimant was absent on sick leave in March and that employee remains there to date. As the claimant was absent on sick leave he did not know that he had been removed from the bus depot roster. The Roster Manager attempted to contact the claimant by telephone a number of times to inform him of this but he did not put it in writing.
Following the Commercial Director’s meeting with the claimant, the Roster Manager attended a meeting at the end of March in the presence of someone from the human resources department and the Commercial Director. The claimant’s issues were discussed as well as what site he would be moved to. The Roster Manager believed the claimant would be returning to work in early April.
Determination:
The Tribunal has carefully considered the evidence adduced both verbal and written. It is satisfied that the respondent failed to adequately communicate with the claimant in the course of his employment and that this failure resulted in the resignation of the claimant. It is further satisfied and determines that this resignation was, in the circumstances that presented a proportionate response by the claimant to this failure by the respondent and that he was therefore unfairly dismissed.
Finally, the Tribunal has considered the efforts made by the claimant to mitigate his loss and finds and determines that he made a reasonable and sustained attempt in this regard. The claimant is awarded the sum of €11,500 in compensation under the Acts in respect of his dismissal and the Tribunal so determines.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)