Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

Representatives

SIPTU

McCarthy Looby & Co. Solicitors

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-00012910-001

01/08/2017

The Complainant was employed by the Respondent from 1st February 2017 until 1st July 2017 as a Security Officer. She was paid average €335 gross and worked 30 hours a week. She claims that she was unfairly dismissed due to her Trade Union membership. She seeks compensation. The Respondent rejects the claim.

The Respondent submits that the Complainant entered into a probationary fixed-term contract in respect of a period from 1st February 2017 to 1st May 2017. The Respondent issued a further two months’ probationary period contract for a fixed two months commencing on 1st May 2017 and expiring on 1st July 2017. The Complainant was interviewed for the position of a Security Officer/ Retail Security Officer / Door Supervisor by Mr. A, Director of the Respondent company. The Company has security contracts with firms spread over a substantial geographical area. It was emphasised to the Complainant that the successful candidate would have to be flexible regarding varying distances of travel to work and she confirmed that she would have no difficulty regarding this aspect of the job. In the first 10 weeks approximately of her initial contract the Complainant was always requesting additional shifts and had no difficulty in accommodating travel to the various locations. However, during the week starting 10th April 2017 the Complainant indicated that her lift would not be available next week but she should be ok after that. On 26th April 2017 the Complainant sent a text message to Mr. A stating as follows: “…I wont be able to do X [named town] hours after this week. I have lift sorted for this week but from this week on I wont be able to get lifts back to Y [name of a town]? I think I informed you about this last week but I tried my best to get lifts for this week, but I will let you know when I get a lift sorted full time for X, if that OK?” (sic). On seeking further clarification from the Complainant Mr. A was assured by her that she would have no difficulty in securing alternative methods of travel so could resume her commitment to as much work as could be offered to her. On this basis the Complainant was given a further two months fixed term contract with the Respondent from 1st May 2017. In the course of the first two weeks of May 2017, the Complainant was offered the same level of shifts but it became apparent that, contrary to her assurances, she was unable to accept these shifts due to her difficulty with travel. She was made aware by Mr. A of the difficulties that this was causing from an organisational point of view. The Complainant was absent from work on certified sick leave from 20th May to 22nd May 2017 and again from 16th June to 20th June 2017. Mr. A contacted the Complainant and requested a meeting with her to discuss the ongoing difficulties with her travel arrangements. The Complainant phoned back later to say that she was unable to get a lift to meet Mr. A in his office and when asked as to which day she could get a lift in she replied “I have no lift at all”. Mr. A emphasised the importance of a meeting taking place. The Complainant replied that she would let him know and then stated that he should be sending out a letter to come in with her Union Representative. Mr. A said that he would do this. On realising that the Complainant’s contract was about to expire in less than a week Mr. A contacted the Complainant and informed her that her contract would not be renewed. The Complainant accepted the position and did not query Mr. A further on the matter.

The Respondent submits that the Complainant had a copy of the Grievance Procedure of the Respondent company which indicated, inter alia, that an Employee would be given the opportunity to respond to any allegations or complaints and that the Employee concerned was given the opportunity to avail of the right to be represented during the procedure. The said procedure also stated that an attempt should be made to resolve any grievance etc. on an informal and private basis.

The Respondent, through its Director made clear at all stages that the grievance with the Complainant was due to her inability to arrange travel arrangements to her various work places contrary to the commitment which she gave at the interview to which she had performed satisfactorily for 80% of the period of her initial contract. All communications regarding the difficulties of the Respondent with the Complainant related to her inability to take up the shifts which had been allocated to her and due to her inability to fulfil the assurances given that she could re-arrange her travel to fulfil these duties. The Respondent was not even aware that the Complainant was a member of a trade Union in the course of the relevant discussions and totally refutes the allegation that the Complainant was dismissed on the grounds of Trade Union membership as alleged or at all. Mr. A has been a member of the Employment Rights Organization since 2016. His Company is one of the companies representing the security industry in the Joint Labour Committee for Pay and Conditions.

The Respondent submits that Mr. O is the Operations Manager and it is his responsibility to issue contract. Following the issues with transport, which arose towards the end of April and the decision to extend the probationary period by another two months a contract was prepared, signed by the Respondent and sent by post to the Complainant on 22nd May 2017. However, the Complainant never signed and returned the Contract. For that reason, Mr. O visited the Complainant (and one other employee) at her workplace and asked her to sign the Contract. The Respondent submits that it was coincidental that this happened at the same time. The Respondent submits that at no stage did the Complainant or her representative raised the matter of the alleged aggression and unreasonable compulsion.

The Respondent was entitled to terminate the Complainant’s employment with effect from the 1st July 2017 and satisfied all four conditions of Section 2(2)(a) of the Unfair Dismissal Act, 1977. Therefore, the Complainant has less than one year service and is not entitled to any redress.

In his direct evidence, Mr. A confirmed that the Respondent employs about 55 employees, many of them are members of Trade Unions and the Respondent in no way objects to its employees’ union membership. Mr. A confirmed also that the contract with the client in the Complainant place of residence has been lost.

SIPTU on behalf of the Complainant submits that she was unfairly dismissed on 1st July 2017 on the grounds of trade union membership. SIPTU submits that on 16th June 2016 at 14:50 the Complainant telephoned the Respondent to inform him that she was ill and would not be able to work. The Complainant further sent a text message to inform the Respondent that she would be out of work until Tuesday next and that she was sorry for the inconvenience caused. On 17th June 2017 at approximately 13:57 the Complainant received a message from the Respondent demanding she be in his office immediately. The Complainant replied that she would if she got a lift as she does not drive herself. On 20th June 2017 the Respondent telephoned the Complainant shouting down the telephone demanding she be in his office with immediate effect. It must be noted that the Complainant resides some 40 km from the Respondent’s office. The Complainant then telephoned the Respondent advising him that she had taken advice from her SIPTU representative who advised that she speak with the Respondent and ascertain a few dates for a meeting at a mutual date and time as soon as possible. Thus, the Complainant advised the Respondent that he would need to reschedule the meeting until her Union representative was available as the Complainant did not feel comfortable attending meeting him by herself. The Complainant submits that it was here the Respondent became quite aggressive in stating he would not meet the Complainant’s representative. This was a clear breach of the S.I. 146/2000 Code of Practice on Grievance and Disciplinary Procedures.

The Complainant further submits that on 21st June 2017 the Respondent sent a man, Mr. O to the Complainant’s place of work. This gentleman forced the Complainant into signing a new contract for two months. In addition, Mr. O stated that this contract should not be used for unfair dismissal. The Complainant sought copies of the contract but the Respondent refused to provide same. The only reason for this new contract was because the Complainant divulged she was a member of SIPTU. On 25th June 2017 the Complainant was at work when the Respondent rang her informing her that he would not be renewing her contract and that he was giving her the minimum notice. There was no objective grounds or justification given by the Respondent in terminating this contract unfairly. The only reason for terminating this employment was for trade union membership. The Complainant was completely distraught by the way and the manner the Respondent was treating her. The Complainant submits that this all happened because of the Complainant’s trade union membership. SIPTU submits that the Complainant was a very diligent worker who was very loyal to the company. She worked long and arduous hours.

SIPTU submits that he Complainant has not secured a new employment and estimates her losses at €13,564.15. The Complainant provided evidence showing that since her dismissal she applied for four jobs and inquired about a Legal Administration course.

The Complainant relies on the following case law: O’Riordan & Ors v Killinane Eyewear Ltd. [1991] ELR 89, White Jn v Betson (UD 99/92)

The Complainant was employed by the Respondent from 1st February 2017 to 1st July 2017 when her employment was terminated. She had less than 12 months’ service. The dismissal was not in dispute.

Section 6 of the Unfair Dismissal Acts, 1977 stipulates as follows:

“(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee's membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts 1941 and 1971 [as amended by the Industrial Relations Act 1990], where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,…”

This section gives universal access to unfair dismissal legislation to employees who feel they have been dismissed due to trade union membership or activities and the limiting one year service requirement does not apply. However, the provision “removes the presumption of unfairness on the part of an employer and purports to put employer and employee on an equal basis” (Ryan, D. “Redmond on dismissal law”, 2017).

The question for me is whether or not the Complainant’s dismissal resulted wholly or mainly form the Trade Union membership.

There is no dispute between the parties that the dismissal occurred. However, the reasons for the dismissal are disputed by the parties. The Complainant submits that she was dismissed due to her membership of the Trade Union. The Respondent rejects the claim and argues that she was dismissed due to her inability to manage her travel arrangements in order to attend her work shifts.

The Respondent argues that at the interview stage the Complainant was informed that travel is part of the job and transport is prerequisite. The Respondent submits that at that stage the Complainant obliged to have her travel arrangements in place. The Respondent submits that initially the Complainant was eager to work as many hours as possible and she was able to travel to locations other than place of her residence. However, the Respondent submits that at some stage around the week starting 10th April 2017 the Complainant notified them that she would no longer have a lift and therefore, will not be able to travel. The Complainant did not dispute that. The Respondent claims that clarification was sought from the Complainant and she ensured the Respondent that he would secure alternative methods of travel. On that basis, the Respondent decided to furnish the Complainant with another temporary two months’ contract as a matter of probation. As the issue of transport remained unresolved, following a period of assignments limited to her place of residence the Respondent decided not to renew her contract after 1st July 2017. The Respondent argues that there have been existing difficulties before Trade Union membership was mentioned to him and the decision not to renew the contract was based on the ongoing issues.

The Complainant representative on the other hand argues that at no stage the Complainant was informed in writing that transport is required for the job. The Complainant claims that she informed her employer during a telephone conversation that he should arrange a meeting with her Union Representative and for that reason she was dismissed.

I note that the Complainant was furnished with her first temporary probationary period contract from 1st February 2017 to 1st May 2017. I note that the contracts provides that “You may be employed in such a capacity on any contract secured by the company within a reasonable distance of your home (150 kilometres daily)… You can be sent to any assignment, you are not contracted to just one location.”

There is no dispute that the Complainant informed the Respondent of her union membership during the telephone conversation on the 20th June 2017. The Complainant claims that she requested the Respondent to contact her Union representative directly and passed on his contact details. The Respondent on the other hand submits that she requested him to send out a letter to come in with her Union Representative. However, as her contract was expiring in the next few days he did not do so and made a decision not to renew the contract. At the hearing the Union Representative claimed that it was clear that the Respondent would not engage with the Union. He noted that he had intended to address a number of grievances should the meeting take place such as the travel requirement, the alleged aggressive behavior of Mr. O, the alleged forcing of the Complainant into signing of the second contract. Regrettably, he had not made any attempt to contact the Respondent in order to inform him of the grievances or to resolve the matter. Rather, he assumed that the Respondent would not engage with the Union. I find that the Union’s assumption does not stand up to scrutiny.

Evidence before me shows a close coincidence between the time of the Complainant informing the Respondent about her Union membership and the decision to dismiss her. This raised the inference that the dismissal was caused by the Complainant informing the Respondent about the membership. However, it was not disputed that the matters related to the Complainant’s travel arrangements were ongoing since the week starting 10th April 2017, over two months prior to her raising the matter of her Union membership. It was clear that the working relationship has deteriorated after the Complainant’s own travel arrangements became an issue.

Having carefully considered the evidence before me I find that, although the Complainant’s trade union membership was known to the Respondent the dismissal of the Complainant did not result wholly or mainly from her membership.

I am satisfied that the dismissal of the Complainant did not result wholly or mainly from the employee's membership of a trade union or her engaging in activities on behalf of a trade union, as defined in section 6(2)(a) of the Unfair Dismissal Act. Accordingly, the complaint is not well-founded.

Unfair dismissal, trade union membership