Complainant

Respondent

Anonymised Parties

An employee

A Cleaning Services Company

Representatives

Mr Hugh   Hegarty, SIPTU

Moira   Flahive BL instructed by Stephen MacKenzie & Co, Solicitors.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint    seeking adjudication by the Workplace Relations Commission under section 13    of the Industrial Relations Act, 1969

CA-00009928-001

27/02/2017

The Complainant commenced employment with the Respondent   company on 26^th October 2010. The Respondent company are engaged   in the contract cleaning industry and have a nationwide presence.

Following a complaint from a client the Complainant was   removed from his normal place of work and allocated duties on two other sites   however he was now working less hours per week than he had been whilst   working on the first site. Through his union representative he is now seeking   compensation for the reduction in weekly pay since being removed from his   first site.

The representative for the Respondent presented a   preliminary submission in relation to the adjudication of a complaint   submitted under section 13 of the Industrial Relations Act, 1969:

“Any adjudication   made by this Tribunal is incapable of enforcement by any legal means.   Similarly, any adjudication made by the Labour Court on foot of any appeal is   incapable of enforcement by any legal means and an application shall be made   by the respondent to dismiss same”.

In addressing this preliminary submission, I have studied   the Respondent’s Employee Handbook. The   Grievance Procedure (Stage 4 – Third Party Referral) quite clearly reads as   follows:

“If no resolution   can be agreed between the parties, then the matter may be referred to a third   party usually a Rights Commissioner for a hearing. There are appeal   procedures if resolution is not found at this stage including referral to the   Labour Court or Employment Appeals Tribunal as appropriate”.

Based on the Grievance Procedure contained within the   Respondent’s Employee Handbook I have decided that it is in order to proceed   with hearing the dispute under Section 13 of the Industrial Relations Act,   1969.

The Complainant commenced employment with the   Respondent approximately 6 years ago, and until this incident there had been   no issues with attendance or his work.

In October 2016, he received a letter from the   Respondent informing him that the client had reported that cleaning staff on   night shift had been leaving early and that the quality of work was   unacceptable. When the Complainant approached his area manager for further   explanation he was told not to worry that the letter was a general letter to   all staff on the site and not to him specifically.

In November 2016, the Complainant received a telephone   call from the Area Manager informing him not to turn up for work. The Area   Manager and another manager then called to the Complainant’s home and took   the client keys from him and handed him a letter confirming the company   position that due to the poor quality of his work he was no longer allowed on   the client site as the client had allegedly requested his removal from the   site. The letter also stated that the Respondent would attempt to source   alternative hours.

In or around March 2017 the Complainant swapped sites   with another employee where he began working 14 hours per week.

Unions Position.

The respondent has treated the complainant unfairly and   unreasonably when they informed him following the letter of October 2016 that   the issues outlined did not specifically relate to him, then subsequently   removed him from site.

A reasonable employer with genuine concerns for client   complaints acting in the best interest of both the client and the workforce would   have addressed any shortcomings in the quality of work directly in the   intervening period. Despite the promise of inspections to be carried out the   Complainant was never approached about the quality of his work, nor informed   or corrected as to the requisite standard to which it has been alleged that   he failed to meet.

In the letter of 13^th October, the   Respondent outlined that if the cleaning standards did not improve,   disciplinary action may be taken, yet no investigation or disciplinary   process was entered into. The removal of the Complainant from the site is   clearly a sanction imposed on the Complainant and was done for no other   reason than the alleged quality of his work.

The removal of the Complainant from the site in these   circumstances is an obvious and clear breach of fair procedures and   reasonableness on the part of the Respondent company.

The Union accepts that in the Contract Cleaning   industry client satisfaction is paramount however in this case it appears   that the Complainant was unfairly punished for the shortcomings of the Area   Manager and the Company.

In addition, the Complainant has not been offered any   suitable offer of alternative employment. Whilst there is acceptance that the   Complainant was offered a few hours here and there, there was no offer of any   substantial employment and the Complainant claims that, none of the offers made   were suitable due to travelling expenses, in relation to the hours on offer.

The Union submitted that the Complainant had been   treated unfairly and unreasonably for his treatment and the circumstances of   his removal from the client’s site. In addition, the lack of effort to find   alternative work have caused severe hardship to the Complainant and his   family.

As a result of this the Complainant is seeking a   finding in his favour and compensation in the sum of €10,950.

A contract of employment, together with a new employee   starter form and the employee handbook constitute the Complainant’s contract   of employment with the Respondent.

On commencing employment with the Respondent, the   Complainant was working 4 hours per week at a contract in Dublin 8. The   Complainant was then offered the opportunity to work additional hours at   another contract, this would result in him working 36 hours per week. He   remained in this contract for several years.

In mid-October 2016, the Complainant received a letter   from the Respondent stating that complaints had been received from the client   and warning the Complainant that in the absence of an improvement on a   sustained basis, disciplinary action may have to be considered.

In early November 2016, the Respondent received a request   from the client that the Complainant be removed from his site with immediate effect   and that he be replaced with a “more   effective, efficient and proactive worker” as “the standards continuously slip when the Complainant is scheduled   to work”. The Complainant has been furnished with a copy of this   correspondence.

In accordance with the term and conditions of the   Complainant’s contract of employment with the Respondent the Complainant was   notified of the client’s request to have him removed from its site with   immediate effect and confirming that he was no longer permitted to work at   that site. In further compliance with the terms and conditions of his   employment the Respondent stated that it would endeavour to find alternative   hours for the Complainant.

In mid-January 2017, alternative hours were offered, this   offer was for 15 hours per week on one site and an additional 15 hours per   week on a second site. In addition, the Complainant was informed of the   possibility of extra hours becoming available at both sites.

The Complainant has unreasonably failed, refused or   neglected to accept the offer of reasonable alternative employment referred   to and has continued to do so to date.

The Respondent submits that it must have the ability to   manage its business affairs, which includes the management of its employees,   and this Tribunal cannot interfere with or fetter same.

It was submitted that this complaint should be dismissed.

The employment relationship in any contracted services   activity is quite unique in as much as there are three parties to the   employment relationship i.e. the employee, the employer and the client. It is   common place that the client can and very often does ask for the removal of   an employee from the contract. The Union in point 3.6 of their submission   state “we accept that in the contract   cleaning industry, client satisfaction is paramount”.

In the instant case before the Workplace Relations   Commission the Respondent through clause 3.20 of their employee handbook have   the right, following a request from the   client to remove an employee from the site: “The client reserves the right to ban xxxxxxx staff from their   premises. If this occurs, the Company will endeavour to find suitable   alternative employment”.

In relation to the Respondent’s endeavours to source   suitable alternative employment I note that the company wrote to the Union on   16^th January 2017 stating that they had hours for the Complainant,   0550 – 0820 (Monday to Saturday inclusive) on site 1 and 1800 – 2100 (Monday   to Friday) on site 2. Both sites were within easy walking distance from the   site the Complainant had been removed from. On 17^th January, the   Union informed the Respondent that the Complainant was not accepting this   offer and that he was looking for similar hours and starting times as he had   been working to date, he was also demanding to be paid for the time that he’s   been left without work and would be looking to be paid in the meantime.

Clause 2.3 of the Employee Handbook – Hours of Work states   that “These hours may be subject to   change in consultation with you”.

For the reasons outlined above I find that the complaint   is not well found and therefore fails.

Hours of Work, Contract Services, Suitable alternative   employment.