Complainant

Respondent

Anonymised Parties

A Security Guard

A Private Security Company

Representatives

Damien Keogh Independent Workers Union

Padraig Lyons, B.L.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00015877-001

20/11/2017

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

CA-00015877-002

20/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00015877-003

20/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00015877-004

20/11/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00015877-005

20/11/2017

The within complaints were lodged with the Workplace Relations Commission on 20 November 2017 and delegated to me on 13 February 2018. I then heard the matters on 15 March 2018, with both parties present.

The complainant’s complaints were as follows:

Industrial Relations Acts:

That he was bullied, filmed without his consent, and micromanaged following a request for a work inspection to the WRC;

That he did not receive a pay increase under the Employment Regulation Order for the Security Industry, from 1 June 2017;

That he did not receive his holiday entitlements pursuant to the same Employment Regulation Order.

Specifically relating to the disputes under the Industrial Relations Acts, the complainant’s representative accepted that local procedures had not been exhausted, but stated that there was no alternative to his client making a complaint due to the treatment his client received during a meeting with the respondent’s managing director.

Organisation of Working Time Act:

That he did not receive his entitlements in lieu of public holidays pursuant to S. 21 of the Organisation of Working Time Act;

That he did not receive his annual leave when he applied for it and rather received it in the next leave year despite not having made an application to carry over his leave.

Employment Equality Acts:

The complainant complains of harassment on the ground of race and victimisation within the meaning of the Acts. He also appeared to complain of unequal remuneration on the ground of race contrary to S. 29 of the Acts, not in his complaint form, but in correspondence with the respondent. His representative clarified at the hearing that no such claim was being brought.

The respondent responded as follows:

Industrial Relations Acts:

It is the respondent’s position that local procedures have not only not been exhausted, but not even been invoked. It adduced the complainant’s contract of employment, its procedure for grievances and harassment and the complainant’s signature for having received this policy, in evidence.

As regards the ERO pay increase, the respondent stated that it was rolled out across all staff in stages, and that all staff entitled to it received the back payments which arose from the circumstances of the rollout. The respondent submitted the complainant’s pay slip in evidence. It shows that the money was paid on 20 July 2017.

As regards the leave entitlement, the respondent submits that a number of staff could not take their leave due to operational reasons, and that the complainant’s leave applications were rejected for the same reason. The respondent states, however, that the complainant did receive his full leave entitlement.

The respondent also rejects the complainant’s complaint of bullying and micromanagement, although it accepts that the complainant was filmed by a staff member on the staff member’s private mobile phone.   Specifically, with regard to the complainant’s uniform, the respondent’s managing director set out the requirements laid down by the Private Security Authority, as a precondition of his company’s license, that staff on duty must wear “a clear identifiable uniform at all times, with the logo easily identifiable, and have their license about their person at all times”.   The managing director further stated that his business could be at risk of substantive fines if this rule was not followed, and that the Private Security Authority was carrying out unannounced checks on this.   He stated that the complainant was issued with a full uniform, and that the company had a stock room full of uniforms. It would have been for the complainant to make an application for a replacement uniform.

Organisation of Working Time Act:

It is the respondent’s position that all staff were written to on 12 February 2016 as regards changes in the Organisation of Working Time Act, and advised that in case they worked on a public holiday, they would receive an additional day’s pay, otherwise they would receive an additional day of annual leave.   The respondent submitted a sheet from its records for a number of employees, including the complainant, which shows that the complainant had accrued 55 hours of additional leave from Public Holiday entitlements.   The respondent’s managing director explained that these entitlements were computed at the end of 2017, and available to staff in 2018.

The respondent accepts that the complainant’s request for annual leave could not be facilitated.   The respondent’s leave year coincides with the calendar year. It also accepts that the complainant did not make a request to have the leave carried over.  As the respondent’s managing director explained, the complainant made his request at relatively short notice, and other staff had leave approved previously for the same time. Accordingly, the managing director would have had to cancel another staff member’s leave to facilitate the complainant. The managing director explained that he offered the complainant leave in December, despite the fact that the period before Christmas is very busy in the industry. The complainant rejected this offer.   The complainant confirmed this.   The complainant was then facilitated with a week’s leave in February.

CA-00015887-001 and CA-00015877-004 S. 45A, Industrial Relations Act 1946:

I find that the complaint is not well founded because the complainant it is clear from the evidence that the complainant received the pay increase due to him even before the within complaint was lodged, and that the complaint is therefore moot.  I am further satisfied that the complainant did receive his accrued hours for public holidays prior to the hearing of the complaint, and that this part of the complaint is therefore also moot.

CA-00015877-002, S. 13, Industrial Relations Act, 1969:

I find that I have no jurisdiction to make a recommendation on the matter of the alleged bullying of the complainant, given that the complainant, by his own admission, had not exhausted internal procedures, despite these being in existence in the respondent company.

CA-00015877-005, S. 27, Organisation of Working Time Act, 1997:

I find that a technical breach of Section 20 of the Act has arisen in that the complainant could not be facilitated with his annual leave request and had not requested for his annual leave to be carried over as per the provisions of S. 20(1)(c) of the Organisation of Working Time Act.   Given that it is common case, however, that efforts were made to grant the complainant leave within the relevant leave year and these were rejected, and that the complainant was then granted leave early in the next leave year, I do not propose to award compensation or order the respondent to carry out specific actions in respect of same.

CA-00015877-003, S. 77, Employment Equality Act, 1998:

The complainant did not adduce any evidence that he suffered harassment on the ground of his race, even after I clarified to him and his representative what is understood as racist harassment within the meaning of the Employment Equality Acts.   Section 14A(7), which is

( a ) In this section —

(i) references to harassment are to any form of unwanted conduct related to any of the discriminatory grounds, and

(ii) references to sexual harassment are to any form of unwanted verbal, non-verbal or physical conduct of a sexual nature,

being conduct which in either case has the purpose or effect of violating a person ’ s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.

( b ) Without prejudice to the generality of paragraph ( a ), such unwanted conduct may consist of acts, requests, spoken words, gestures or the production, display or circulation of written words, pictures or other material. [Emphasis added]

In particular, the complainant was unable to link the micromanaging treatment he complained about to his race.   I am therefore satisfied that the complainant has not made out a case of racist harassment within the meaning of Section 14A(7) of the Employment Equality Act, and that this part of his complaint must therefore fail.

Likewise, the complainant and his representative appeared unaware that the victimisation provisions in Section 74(2) of the Employment Equality Act, read in conjunction with the interpretations in Section (2), mean that the victimisation provisions of the Acts only apply to complaints, whether they were made internally or to the Commission, which relate to unlawful conduct under the Employment Equality Acts, not to other employment rights complaints.   Many other pieces of employment rights legislation have their own victimisation or penalisation provisions, of course. As for the within complaint, I am satisfied that the complainant has not made out a case for victimisation pursuant to Section 74(2) of the Employment Equality Act, 1998.

For the reasons set out in detail under “Findings and Conclusions” above, I find that CA-00015877-001 and CA-00015877-004 are not well founded due to mootness; that I cannot make a recommendation on CA-00015877-002 due to internal procedures not having been exhausted; and that both complaints under CA-00015877-003 fail for lack of a valid prima facie case.

I find that CA-00015877-005 is well founded, but that the breach is both technical and partly came about because efforts to facilitate the complainant were unsuccessful. I am therefore not awarding compensation, and do not make other orders pursuant to my powers under S. 27 of the Organisation of Working Time Act, against the respondent.

Industrial Relations Act 1946 – Industrial Relations Act 1969 – Organisation of Working Time Act 1997 – Employment Equality Act 1998 – mootness – lack of exhaustion of internal procedures – technical breach – definition of harassment S. 14A of Employment Equality Act – definition of victimisation S. 74(2) of Employment Equality Act – no prima facie case.