EMPLOYMENT APPEALS TRIBUNAL
CASE NO.
UD752/2015
WT126/2015
CLAIM OF:
Bassem Soliman
against
Brink’s Ireland Limited
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
ORGANISATION OF WORKING TIME ACT 1997
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. K. Buckley
Members: Mr. J. Hennessy
Mr D. McEvoy
heard this claim at Cork on 21st July and 28th September 2016
Representation:
Claimant: Mr Padraig Sheehan, Padraig J Sheehan, Solicitors, Village Green House,
Douglas West, Douglas, Cork
Respondent: Ms Róisin Bradely, IBEC, 84-86 Lr. Baggot Street, Dublin 2
Claimant’s Case:
The claimant commenced employment as a security guard with the respondent in July 2010. He moved to Cork in the autumn of 2013 and was based in a hospital there undertaking security duties. This hourly paid and permanent claimant normally worked a 12 hour overnight shift. From the end of March 2014 up to early July 2014 and again in late December he was not rostered for duty. In January 2015 he was associated with two incidents at the hospital one of which he was exonerated the other eventually leading to a first and final written warning. However, that warning included his alleged wrongdoing regarding his non assistance in dealing with a patient.
Prior to that warning the claimant had been subjected to a poorly timed investigation meeting and a suspension in February 2014 followed by a disciplinary hearing on 21 April 2014. The claimant considered that sanction and indeed the process that led to this as flawed. He was not given proper notice of the first meeting; felt ambushed by it, and was not given an opportunity appeal against that sanction. Due to that treatment and his ongoing low rostered hours from May onwards the claimant initially complained about this, then on 8 May tendered his resignation. This was the first of his three notices of resignation the latter being on 15 June 2014. The claimant concluded he had not been treated fairly by the respondent. The company had not responded to his grievances, had wrongly labelled his citizenship, and had gratuitously, reduced and curtailed his rostered hours.
Case adjourns until 28th September 2016
Case resumes:
Respondent’s case:
The Tribunal heard evidence from Ms McN who is the HR person in the company and is based in Dublin. The respondent has depots based in Dublin, Cork, Belfast and Galway. She explained that she received a phone call from Mr. O’S, who was regional manager for Munster. He said it was an urgent matter dealing with a dangerous hospital situation. She told him that she would be in Cork the following day.
She met the claimant in a hotel. She was not threatening in behaviour and at no stage did he suggest that she was. The first she heard of threatening behaviour was in the course of the proceedings (hearing). The claimant was upset and aggrieved, unreasonable but not uncontrollable. The e claimant did not tell her that he was tired.
The witness explained that the issue was if their clients could ask them to remove their staff; that they have to find someone else to replace them. It s standard procedure that if the hospital wants someone off the premises (they would comply)’ if an employee is requested to leave the site their hand are completely tied. They would try to find hours somewhere else for the employee.
There were two incidents one was the key incident and the other was the incident of 14th January 2015. Also the claimant had spoken to the nursing supervisor and told her that he would lose his job over the incident.
A number of statements were opened to the Tribunal and the witness confirmed that they were given to her. The witness also gave evidence as to the claimant being on sick leave and on suspension. She did not pressure the claimant to resign, and she has no idea why he thought that was so.
There was an informal investigation which led to a formal investigation. The claimant was issues with a final written warning; he was not dismissed. Correspondence of 09th may 2015 was opened and the witness confirmed that the claimant had not resigned at that point. Then on 11th may 2015 the claimant sent correspondence to say that he was resigning. The witness explained that they had no opportunity to fix any issues. She was unclear as to whether the claimant was resigning or not at various points in time.
The Tribunal heard evidence from Mr. O’S who was/is the regional manager for Munster. He explained that the claimant did not bring any issues to his attention. The witness gave evidence as to his rostering of hours for the claimant.
The Tribunal heard evidence from Mr. S who was the director of the section at the time. The witness gave evidence amongst other things as to the rostering of hours. He explained that the claimant hours were not reduced to discipline him; the “difficulty was the limited number of sites (worksites) in the area”. The claimant has a contract guaranteeing 20 hours not 39 hours.
Determination:
The claim under the Organisation of Working Time Act, 1997 fails, for want of prosecution.
Determination:
The Tribunal determined in considering the matter that the Claimant had not exhausted the disciplinary process; he resigned while the disciplinary process was still in train. Furthermore, based on the evidence adduced the Claimant’s claim of constructive dismissal does not succeed. The client of the Respondent insisted that the Claimant be taken from the site. Having regard to the particular requirements of the security industry and given the circumstances of this particular case, the hours were not available to the Respondent to allow them to give additional hours to the Claimant. The Claimant considered the fact that the hours were not available to the Respondent as being an attack on him personally. It was clearly not the case. The Claim under the Unfair Dismissals Acts, 1977 to 2007, fails.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)