Complainant

Respondent

Anonymised Parties

A security guard

A provider of security services

Act

Dispute Reference No.

Date of Receipt

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

CA-00009127-001

17/01/2017

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

CA-00009127-002

17/01/2017

The complainant is a security guard and claims unfair treatment by the respondent, a provider of security services.

The complainant outlined that he commenced in a full time, permanent security role on the 16th December 2003 and this transferred to the respondent in 2014. The first dispute relates to the issue of a verbal warning and the second dispute relates to the issue of a first written warning.

CA-00009127-001

The complainant outlined that he identified issues with regulatory compliance following the transfer of his employment to the respondent. He was stationed as security guard at a named construction site. The respondent declined to provide basic toilet facilities, batteries for torches for night work as well as first aid and potable water. The complainant had to arrange his own Safe Pass training. The respondent did not supply the required personal protective equipment or clothing for cold temperatures. The complainant had been due to attend a back to work meeting on the 23rd November 2016. On arriving at the meeting, he saw that the manager was accompanied by a note-taker and this was to be a formal meeting. At the meeting, the manager raised the issue of the complainant moving site, which he did not agree to. The following day, the 24th November 2016, the manager issued the complainant with a verbal warning for his demeanour and actions at the meeting. The complainant appealed against this warning, but the appeal manager upheld the warning. The complainant states that fair procedures were not followed, that the process was not impartial and he was not supplied with the minutes of the return to work meeting. He was not allowed a representative to accompany him and there was no investigation prior to the issue of the sanction. The complainant states that the respondent relied on an employee handbook that he had not seen and was only supplied with the respondent handbook on the 28th February 2017. He submits that he has been victimised for referring complaints to the Workplace Relations Commission, for example being suspended.

CA-00009127-002

The complainant challenges the issue of a first written warning on the 1st December 2016. This was issued on the basis that he refused to comply with a “reasonable request” of his employer. He refuted that this was a reasonable request. This related to providing an original medical certificate and confirmation of his attendance at a medical doctor. He was never invited to an investigation or a disciplinary hearing. He outlines that he went on sick leave on the 8th June 2016 and submitted copies of medical certificates, as was the custom and practice. On the 9th November 2016, the respondent asked him to provide an original medical certificate and he states that this represented a change of policy. This was submitted by registered post on the 31st November 2016 and signed for the following day. Despite this, the respondent issued the first written warning without completing an investigation.

The complainant outlined that he attended a company doctor on the 30th June 2016 and that while the report was supplied to the respondent on the 1st July 2016, it was not supplied to him. The report was supplied to him on the 19th August 2016 and he challenged the contact made by the doctor to his GP.

The respondent arranged a consultation with another doctor on the 15th November 2016. The complainant said that it was normal for the respondent to give a reason for a medical referral. A manager said that there was a contradiction between the complainant’s GP and the occupational doctor. The complainant outlines that there is no provision in his contract for a referral to a third-party doctor. He later attended a third-party doctor and comments that the manager had not asked for this report, demonstrating that there was no urgency in getting the report. Nevertheless, the manager issued the first written warning. The complainant appealed against the first written warning and this was upheld by the respondent on the 11th January 2017.

The complainant’s doctor certified him as fit for work sometime between the 15th and 23rd November 2016. He went on sick leave again on the 24th November 2016, after the onset of the disciplinary process, which resumed in January 2017. The complainant stated that the report of the February 2017 consultation was withheld for two months and only released in April 2017.

The complainant asserts that he has been subjected to unfair procedures and arbitrary action on the part of the respondent. He submits that he was suspended on the 2nd March 2017 because of referring issues to the Workplace Relations Commission. He says that this is victimisation and is consistent with him being victimised for making health and safety complaints.

The complainant outlined that he was suspended on the 28th February 2017. Despite his having referred matters to the Workplace Relations Commission, the respondent, however, started off again. In its letter of the 28th February 2017, the respondent sought to re-investigate the incident of the 23rd November 2016. He referred to letter of complaint from two staff of the 13th February 2017. He said that the one handbook was issued on the 28th February 2017 and prior to this the respondent had another handbook. The two handbooks refer to different suspension periods of 6 or 12 months.

The respondent did not attend the adjudication and did not make submissions in relation to the disputes.

CA-00009127-001

In detailed submissions and in his contribution at the adjudication, the complainant set out his reasons why the verbal warning issued to him on the 24th November 2016 was not fair. Those reasons have not been contradicted by the respondent. It follows that the verbal warning issued by the respondent is unfair and should be rescinded. Given that there have followed other, more serious warnings, it is necessary to make this finding in relation to the verbal warning even if it should now be removed from the complainant’s file. I recommended that the respondent pay redress of €1,000 to the complainant for the unfair treatment.

CA-00009127-002

It is clear that the first written warning was issued to the complainant unfairly, in particular where there was no investigation. The complainant explained his actions in respect of providing certificates and attending doctors. The respondent did not adequately consider these explanations and pressed ahead with the first written warning. Given that it was issued in such unfair circumstances, the first written warning should be withdrawn. Furthermore, I recommend that the respondent pay redress to the complainant of €1,000 for the unfair treatment.

CA-00009127-001

I find that the complainant has been the subject of unfair treatment and pursuant to the Industrial Relations Act, I recommend that the verbal warning of the 24th November 2016 be rescinded and that the respondent pay to the complainant redress of €1,000 for the unfair treatment.

CA-00009127-002

I find that the complainant has been the subject of unfair treatment and pursuant to the Industrial Relations Act, I recommend that the first written warning of the 1st December 2016 be rescinded and that the respondent pay to the complainant redress of €1,000 for the unfair treatment.

Industrial Relations Act