ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005039
Parties:
Anonymized Parties | Security Officer | Security Company |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00007146-001 | 22/09/2016 |
Date of Adjudication Hearing: 09/02/2017
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The respondent first employed the complainant as a security officer with effect from the 10th of June 2013 working on a number of different sites. He was paid hourly at the rate of €10.01 per hour and worked 36 hours per week. The complaint was lodged with the WRC on the 22nd of September 2016. The parties made written and oral submission to the hearing. |
Summary of Complainant’s Case:
The complainant submits that he was constructively dismissed. As a result of a complaint made by a named customer of the respondent an investigation was undertaken on the 3rd of February 2016 and the complainant was debarred from working on that customer’s premises. The conduct of the investigation did not comply with the rules of natural justice or fair procedure. As a direct result the complainant was placed on the premises of another customer on the 26th and 27th of February. He was removed from this customer’s premises at the request of the customer and without enquiry or investigation. He was not rostered for any further shifts thereafter and he found it extremely difficult to communicate with the respondent. His request for his P45 was declined on the basis that he was still an employee of the respondent. A letter from his solicitor of the 10th of June 2016 seeking clarification and assurance was ignored and he considers himself dismissed form the 17th of June 2016. The complainant was not offered hours or payment and was therefore effectively dismissed. |
Summary of Respondent’s Case:
The respondent submits that the complainant is on an extended period of lay-off and it is clear that the complainant’s employment has not been terminated. The contract specifically provides for such an eventuality. Furthermore it provides for the removal of an employee from a client’s premises at the request of the client. The circumstances precipitating the complainant’s removal from two separate customer’s sites were such as to make it impossible to plead for his retention on those sites. The complainant was offered alternative employment in Dublin but it was declined. He was promised work in Galway when and if it became available. The respondent has co-operated with the complainant at all times as it relates to his efforts to ameliorate his position arising from the lay-off and in his dealings with DSS. He has never raised an internal grievance nor has the complainant sought to utilise any other statutory remedy open to him. The respondent notes the high burden of proof in cases of constructive dismissal and refers to the level of contribution apparent in this case. |
Findings and Conclusions:
I note the contractual position in respect of removal from site and as it relates to the issue of lay-off. I further note that the respondent provided a letter to the complainant post receipt of the herein complaint noting his employment status and that it has asserted that it has offered hours to the complainant as of January 2017 but that it has not received any response to its offer. On the other hand it is clear that the respondent has not been in a position to offer the complainant any work for a considerable period of time and to a large extent this has been outside of its control and the complainant has contributed to the impasse. On balance and in view of the fact that constructive dismissal sets a high bar and demands adherence to the mirror image concept wherein the complainant must display an equal and opposite degree of reasonableness in his dealings with the respondent (utilising grievance procedure etc.) I find that the complainant has failed to discharge that burden. I find that he is still an employee of the respondent. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
The herein complaint is not well founded. |
Dated: 30 August 2017