ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00003744

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 04/10/2016

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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).

Further submissions were received following the hearing with the final submission received by the Commission on the 5^th.Nov. 2016.

The claimant’s representative asserted that in addition to the foregoing complaints , the claimant had made complaints under the Organisation of Working Time Act of persistent breaches of Section 11 and Section 20.The respondent contended that as no claim has been properly lodged with the WRC , the complaint cannot be entertained under any circumstances.The claimant’s representative asserted that the complaint form quite clearly set out that there was an abuse of working hours by the respondent.It was asserted that the form said that the claimant worked 15 hour shifts and that he was deprived of annual leave.”The claimant regrets that a box on the online form that dealt with this particular legislation was not ticked prior to the form being submitted on line.But given there was absolutely no surprise on the respondent’s part at the hearing on the 4^th.October 2016 , when the matter of the Organisation of Working Time legislation arose , and given that this issue was clearly set out in detail on the form that was submitted , and given that there is a capacity for a 6 month period of extension to the statutory imitation period , again we would ask that the claimant’s claim on this front be assessed by the Adjudicator and a finding made thereon”.

I have reviewed the submissions of both parties and examined in detail the claimant’s complaint form.Based on the terminology utilised in the narratives submitted I cannot accept that the omission of a complaint under the Organisation of Working time was an inadvertent error/omission from the complaint.The references to working time issues in both the complaint under the Unfair Dismissals Act and the Transfer of Undertaking Regulations are set out in the context of the particular complaints lodged under these 2 pieces of legislation.In the circumstances therefore , I find the claimant did not make a proper complaint under the Organisation of Working Time Act and consequently I have no jurisdiction on the matter. 

Unfair Dismissals Acts 1977-2007

Complainant’s Submission and Presentation:

The claimant commenced employment as a Security Officer in 2007 and the business was transferred under TUPE to the respondent in August 2015.

It was submitted that prior to the transfer the claimant had no disciplinary record and that from the outset the respondent sought to change his long held terms and conditions of employment , frequently requiring him to work 24 hour shifts and micro managing him to the extent that he knew that any minor error would be used as an opportunity to dismiss him.The claimant’s representative set out a chronology of the performance issued raised with the claimant in the lead up to his dismissal.This process culminated in a meeting on the 30^th.March 2016 where the following matters were raised with the claimant: Failure to cover shift rosters and late attendances; failure to use Tablet to record reports ; leaving a building closed in error and not attending for training.

The claimant refuted the allegations against him and submitted that immediately following his dismissal he was advised by another staff member that he had been dismissed.It was contended that the sanction of dismissal was excessive and disproportionate.It was submitted that the escalating procedure for dismissal as provided for in the company handbook was not observed .It was advanced that the numerous meetings that the claimant was obliged to undergo were for minor errors only and the provisions of Kiernan v A-Wear were invoked in support of the contention that the sanction of dismissal was disproportionate.It was further argued that the principles set out by Flood J in Frizelle v New Ross Credit Union [1997] were not observed.It was submitted that none of the grounds relied upon by the respondent met the test of substantial grounds.

In a further submission the claimant’s representative asserted that under TUPE the claimant was entitled to rely upon the handbook utilised by the transferor which provided for a 4 stage disciplinary process , prior to dismissal.It was contended that the respondent made no attempt to have the rights conferred by the handbook withdrawn ; it was advanced that the claimant was effectively limited to a 2 stage disciplinary process .It was submitted that the claimant in signing his contract with the respondent did not renounce his right to a 4 stage disciplinary process and did not agree to the renunciation of that right.The submission highlighted what was described as “ the open admission at the WRC hearing that no disciplinary meeting was ever held prior to dismissal – only an investigation meeting was held before an immediate dismissal”.

In response to the respondents supplementary submission ,it was asserted that the omission of payment or hours of work from the handbook had no bearing on the status of the handbook; that the respondent should have updated the handbook and that the respondent knew full well that the claimant disagreed in every possible sense with the dismissal ; much of the disciplinary meetings were taken up by contrived issues and that the claimant cannot be disadvantaged simply because of how he presented his arguments at the internal hearings.

It was asserted that the submissions made by the respondent in relation to mitigation were not relevant to the case at hand ; that the claimant was not prohibited from activity outside of work hours ; that the claimant had voluntarily revealed to the respondent at a meeting on the 19^th.January that he worked with vehicles in his spare time and engaging in activities outside of work had never been raised as an issue by the respondent.As the claimant had been unsuccessful in seeking alternative employment since his dismissal, he had opened a car repair business in Sligo in Mid October 2016- it had just opened and he was not making any profit from this activity and was not expected to for some time.

Respondent’s Submission and Presentation:

It was submitted that the claimant commenced employment with the respondent on the 1^st.May 2015 as part of a Transfer of Undertakings and was dismissed on the 1^st.April 2016.It was advanced that the claimant was the subject of several investigations into violations of best practise and procedures and a chronology of the processing of the allegations against the claimant were set out by the respondent – culminating in the claimant’s dismissal on the 1^st.April 2016.The claimant appealed the decision to dismiss at a hearing on the 13^th.April 2016 but the appeal was not upheld.

It was submitted that contrary to the allegations made by the claimant regarding a reduction in working hours following the transfer , the respondent’s records demonstrated that the claimant did not incur any loss .It was asserted that the claimant was not requested to work 24 hour shifts and the company had no record of any complaints from the claimant – objecting to the hours he was given.

It was submitted that the excuses put forward by the claimant at the disciplinary meetings were unacceptable – ranging from “I got confused” to “It must have slipped my mind”.

It was submitted that the claimant ‘s employment was terminated due to persistent failure to carry out his work at the required standard acceptable for a security business.” The company works mostly out of hours when other businesses are closed and their customers depend on them to do their job on time and correctly 99.9% of the time.The company cannot afford to employ security guards who consistently fail to carry out their duties in a timely manner and look to blame others for their failures.

In a later submission , on the matter of the relevance of the transferor’s handbook , it was submitted that the handbook covered a multitude of policies and procedures but made no reference to payment or hours of work and accordingly , it did not constitute a contract of employment.It was submitted that neither of the named parties referred to in the handbook worked for the respondent and the claimant did not raise issues regarding the procedures during the disciplinary process.

It was further submitted on the matter of mitigation that at an investigation meeting on the 24^th.Sept. 2015 , the claimant was asked about any other paid employment.The claimant said he did not and that he spends his spare time doing up a campervan for himself.It was submitted that the claimant was asked the same question at a further investigation meeting on the 19^th.January 2016.It was contended that the respondent had since learned that the claimant had in fact engaged in other employment from at least early Nov.2015.Screen shots of Conlon Recovery dated Nov.24, 2015 were submitted post the hearing.

Decision:

Section 41(4) 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(1B) of the Unfair Dismissals Act, 1977 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.

I have reviewed the evidence presented at the hearing and taken account of the follow up submissions from the parties.I am satisfied that the claimant was entitled to rely upon the disciplinary procedures set out in the transferors handbook .I have concluded on the basis of the admissions made at the hearing by the respondent that while the claimant was the subject of an investigatory process , he was denied an opportunity to defend his position under the disciplinary process as the decision to effect a dismissal was taken immediately following the investigation meeting on the 30^th.March 2016.Consequently the claimant was denied his rights under natural justice and the respondent failed to comply with the provisions of S.I. 146/2000.Consequently I am satisfied that the dismissal was procedurally unfair.I have noted the contents of the minutes of the earlier disciplinary hearings and in particular the meetings confirmed as accurate by the claimant.I have concluded that the claimant did contribute to his own dismissal and accordingly I am limiting the award of compensation to €9,500 which should be paid to the claimant within 42 days of the date of this decision.

European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. 131 of 2003)

Summary of Claimant’s Position

In his complaint form , the claimant states “ My current / new employer (Transferee)did not ensure that my terms and conditions transferred from my previous employer”.In the section requiring specific details , the claimant submits “ After the Transfer of Undertaking in or around August 2015, the Claimant’s working hours were unilaterally altered to between 30 and 45 hours per week although he had been working between 36 and 48 hours per week for 9 years prior thereto.The claimant was also forced to work 15 hour shifts instead of his near decade long custom of working 12 hour shifts .All of the claimant’s requests for annual leave were either refused or made as difficult as possible for him to get approved”.

Summary of Respondent’s Position

The respondent denied there had been any breach of the Regulations and submitted supporting documentation regarding the claimant’s income since the transfer of undertaking had taken place.It was submitted that the rosters presented demonstrated that there was no foundation to the claimant’s complaints and it was advanced that no evidence had been presented to support the complaints concerning annual leave.

Decision

The claimant commenced employment with the transferee on the 1^st.May 2015.The complaint was received by the Commission on the 23^rd.May 2016.Accorrdingly the complaint is out of time and I have no jurisdiction to investigate this element of the complaint.

Dated:   1^st February 2017