Complainant

Respondent

Anonymised Parties

Security Guard

Agency worker provider

Representatives

James Watters James Watters & Co. Solicitors

 Human Resource

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00010483-001

29/03/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00010483-002

29/03/2017

NOTE: The Complainant brought the exact same complaint before the WRC by way of ADJ 7825. By agreement between the parties ADJ 7825 was withdrawn and ADJ 7826 was proceeded with.

The Complainant had been engaged with the Respondent company since about 2008. He was engaged by them as a Security Officer and as this is an Agency operation, the Complainant in the course of his working time was moved from site to site as the demands of the Respondent’s clients dictated. For example the Complainant worked for up to two years in Priory Hall where he had a very steady and predictable roster in circumstances where his employer was happy to accommodate his domestic and family life.

As is normal in Agency type work the Agency remains the Employer and to some extent is at the mercy of the client in terms of the placing of staff. If a client requests that an agency worker be removed from a site, the Respondent is generally obliged to acquiesce to that request. It does not necessarily reflect badly on the worker and might arise for any number of reasons from an economic one being experienced by client to clash of personality in the workplace.

The Complainant had worked a number of sites on behalf of the Respondent and it is common case that the Respondent had made every effort to ensure that the Complainant got his preferred shift pattern which might be three thirteen hour shifts – leaving the Complainant free for four days of the week – to attend to family duties.

The Complainant was sent in December 2016 to a site in Dolphin’s Barn which was a one man operation in terms of it’s Security arrangements. The Complainant knew that this would involve his maning the gate, securing the perimeter and signing people in and out of the site. It was made clear to the Complainant by the client then running this busy site that there was an expectation that the Complainant would guide trucks and other vehicles out onto what was a busy one way road out of the site.

The Complainant was not happy at this request. The Complainant had done some traffic direction before when he had worked previously at the St James’ site but he believed he had not been specifically trained to carry out this function and he was particularly aware of the fact that there was an expectation on him to warn and guide pedestrians using the footpath across which trucks had to traverse.

The Respondent stated that this was not an unusual request by the client in question and that many of it’s clients would expect that the person in charge of the gate would assist in the access and egress to and from site.

The Complainant additionally pointed to the fact that there was no gate hut as such. In fact the Complainant was expected to use a portakabin with limited heating and a little distance away from the gate. This meant, the Complainant said, that he would have to be outside all day to keep an eye on the traffic coming in and out as he could not see what was going on from the portakabin and particularly where it was positioned.

The Complainant notified his Employer of the problems as he perceived them. The Complainant’s superior came down to the site (MW) on about the 20^th of December and had a chat with the client and with the Complainant. It was agreed that the Complainant should , in due course, be provided with a more appropriate security hut with heating. With respect to the issue of directing traffic, the Complainant was advised that this formed a part of his expected duties and that the Complainant was wrong to think that he would be personally liable for any accident that might occur as this was a risk assumed by his employer and/or the site owner. The Respondent stated that there was no question that the Complainant had to stand out in the freezing cold all day long as suggested. Equally, he was not expected to remain sitting in the portakabin for thirteen hours at a stretch.

The Security hut did not arrive and the Complainant reported his dissatisfaction through the incident report book.

On the 10^th of January, 2017 the client requested that the Complainant be removed from site in circumstances where the client said that the Complainant was not assisting with the directing of vehicles in and out of the site.

There was a not inconsiderable amount of evidence given in relation to the pre-history leading up to this placement but I do not find that those past events had any bearing on the circumstances leading up to this state of affairs. I accept that any previous request to have the Complainant removed from a client’s site had no bearing on his standing with his Employer who seemed happy to place the Complainant again and again.

The Complainant was notified that the client no longer wanted him on the premises by the Respondent’s HR Manager and was sent home pending a further placement.

The Complainant was also invited to attend an Investigation meeting on the 16^th of January wherein he set out his complainant regarding the lack of proper facilities and the expectation that he would direct traffic.

It is noted that even though there was an Investigation process under way the Employer also set about replacing the Complainant in Dolphin’s Barn and placing the Complainant in an alternative site. By the 13^th of January an alternative Work Roster at a new site had been proposed and given to the Complainant. This was rejected by the Complainant in circumstances where he believed that the Employer was bound to honour the practise whereby he would only work three mid-week shifts a week.

It is noted that the Contract of employment requires flexibility and it was explained by the Respondent that the constant rotation of clients and sites and employees meant that there could be no Guarantees given. The Complainant was expected to take what was on offer at such short notice and as had been demonstrated in the past, every effort would be made to accommodate the Complainant – where it was in the Respondent’s power to so accommodate.

In any event the Complainant was not happy to take on any of the proposed rosters although he did suggest that if he was being guaranteed one particular Roster into the future he would take it. The Respondent could not make this Guarantee as.

Eventually on the 7^th of April 2017 the Respondent wrote to the Complainant and terminated the Contract of Employment by reason of the frustration of the Contract arising from the persistent failure to work any of the proposed Rosters which were repeatedly assigned him over the intervening period.

The Complainant makes the case that the Company were obliged to pay to him the wages which would have been due to him up to the termination of employment as he was available for work and was an employee on the Respondent books. This claim is brought under the Payment of Wages Act 1991.

The Complainant additionally says that he made a representation to his employer regarding an issue of safety, health and welfare at work and that the Employer is therefore precluded from penalising the Complainant which penalisation might include a change in location of place of work or a change in working hours pursuant to Sections 27 and Section 28 of the Safety, Health and Welfare and Work 2005.

The Complainant states that the Respondent is bound by the internal agreement that he would be entitled to work three out of seven days at a rate of thirteen or so hours a day and that where the Employer knows he has domestic difficulties it is obliged to give certainty to any newly proposed Roster.

The Respondent denied that the Complainant was entitled to be paid for those weeks where he was rostered for work but failed to make himself available. There were two days between the 11^th and 13^th of January where the Complainant was not rostered.

The Respondent states, regarding the Safety, Health and Welfare issue, that the Complainant’s case is misconstrued as the Complainant failed to make a complaint against the Employer but in fact registered a complaint with the Dolphin’s Barn client. In addition, the Respondent says that it has not penalised the Complainant for raising any issue and that it has at all times sought to listen to the Complainant and that both the Respondent and the Complainant know and understand that any client has the final say on who will be present on it’s site.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant has made two very specific legislative complaints arising out of the eventual termination of this employment after nearly nine years duration.

On balance I find that I have to accept the Employer’s evidence that there is very little it can do when faced with a client demanding that a particular appointee be removed. I believe the Complainant too, accepts this to be the case and this is particularly so where the Complainant had in fact been asked to be removed from particular jobs on previous occasions. The Complainant was anxious that this not be seen as some sort of pattern that put him a t fault and I am persuaded that this was not the case as evidenced by his Employer being happy to re-engage the Complainant in an alternative job on each occasion.

In fact, the Respondent was minded to repeat this process on this occasion and within two days of having been asked to take the Complainant off the Dolphin Barn site, the Employer had found the Complainant with an alternative job and Roster.

As this placement was found at very short notice, it is understandable that the Roster might have been significantly different to the one already held. The Complainant was not happy to take this Roster and this point blank refusal to engage was a matter for himself and was not based on any sound Contractual footing.

The Complainant may, up to this point, have enjoyed a particular schedule but this was not guaranteed and in order that he opted to make himself unavailable for work when work was being provided to him.

I cannot in the circumstances see how a claim under the Payment of Wages Act of 1991 can be sustained.

Having regard to the complaint made under the Safety Health and Welfare Act of 2005 I note that the Complainant provided me with an incident report sheet dated the 10^th of January 2017 and that this appears to be on the Agency paper. I do not know how or in what circumstances this was brought to the Employer’s attention and the Employer has suggested that any complaint brought at that time was brought to the attention of the client and not the Employer. That said, I think the Employer was on Notice of the difficulties that the Complainant was having in Dolphin’s Barn since coming down to meet him on site on December 20^th. I can accept that the Employer was on Notice of difficulties and that these were raised and that a solution (in the form of a new security hut) was in the pipeline. I find that the Complainant was bound to assist in the safe access and egress of vehicles into the site and that there was nothing unusual in this expectation. I do find the Complainant made a legitimate complaint about not having a secure and warm hut close to the gate which would allow him keep an eye on the gate without having to be outside in the freezing cold all day long. This was certainly a Health and Safety issue. However a hut was promised and it had only been three weeks since that promise – including the Christmas period, not much known as a productivity period.

In any evert the Employer had no control over the Client’s decision that it wanted the Complainant gone. This was a matter for client and the Complainant knew this was always something within the power of client about which neither he nor his Employer could do nothing.

I cannot therefore find that the Employer in this situation penalised the Complainant for making a complaint pursuant to the Safety, Health and Welfare at work Act 2005.

The Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005is not well founded.

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 fails