Complainant

Respondent

Anonymised Parties

A security guard

A security service provider

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-00015063-001

17/10/2017

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

CA-00015063-002

17/10/2017

The Complainant was a security officer employed by the Respondent from 01/11/2005 until 01/07/2017.

The Complainant’s final rate of pay was €907.92 per fortnight, he worked 39 hours per week.

In or around May/June 2017 the Complainant was informed that the Respondent had lost the contract for the provision of security services at the location the Complainant was employed in and as the result of this his employment would transfer to the incoming security services provider.

The case is taken by SIPTU on behalf of our member who was employed by the Respondent as a security officer up to the termination of his employment on 1st July 2017.

Our member believes that he was targeted by the Respondent and he was placed on a client’s site in order to have him transferred to another employer by means of The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) (TUPE).

At the time of the transfer the Complainant was on the Respondent’s injury on duty scheme, entry into this scheme was approved by the employer. This scheme is for a maximum of 104 weeks.

The Respondent summarily dismissed the Complainant without invoking their own disciplinary procedures, the right to representation or the right to fair procedures or natural justice.

The redress being sought by the Complainant is re-instatement.

Background

The Complainant was employed as a security officer by the Respondent from 11th November 2005 up to the termination of his employment on 1st July 2017.   The letter terminating his employment is dated 13th July 2017 and was received by the Complainant on 18th July 2017.

This letter suggests that the Complainant was refusing to transfer and that this constituted his resignation. This is strongly disputed by the Complainant and his position is today that he wished to stay with the Respondent.

The Complainant’s position that the Respondent had other sites and jobs available and in fact were advertising for security operatives at the time of the transfer. No alternative offer of employment was given at his contracted hours, part time hours or at all.

The Complainant was placed on this site following an agreement reached with the Respondent in November 2016. Our member is aggrieved that it took up to 6 weeks to find a site for him. This site is a considerable distance from his home and it took 2 bus journeys each way to get to and from the site.

The Complainant was promised that he would be fully trained on the site to allow him to have a safe work environment, this training never happened.

When the Complainant was placed on the new site his other work colleagues were able to tell him that the Respondent had lost the contract to another Company, although concerned he believed the management of the Respondent would stick to their side of the agreement signed off in November 2016 and that the placing of him on the new site would not affect his employment with the Respondent.

For the record, the Complainant would not have had any understanding of TUPE, like many employees that have not been affected by it. The Complainant believes that in March/April 2017 there were rumours that the Respondent were in negotiations with the client to retain the site.

In April 2017 a contracts manager told the Complainant that there was a site coming available in Celbridge Co Kildare. This location would have suited the Complainant and he rang his shop steward for advice at the time, however, this move never materialised.

The Complainant was not invited to any of the orientation meetings with the new contractor, other colleagues affected by the transfer were facilitated with these meetings.

On 15th May 2017, the Complainant was handed an envelope by a work colleague the envelope contained a letter dated 20th April 2017 (the Complainant received this letter almost a month later than anyone else on the site) he is extremely aggrieved by this.

The Complainant was aware from colleagues that the Respondent had lost the contract, however he did not believe that he would be subject to a transfer, he had been placed on the site only in December 2016 , he was on a site that he was not properly trained on and it was beyond belief that he was being transferred to another employer.

The Complainant firmly believes that management of the Respondent placed him on this site to get rid of him and he was asked that this be placed on record today.

Our position

At the time of the transfer the Complainant was certified unfit for work by his medical practitioner, this was due to an accident at work, this is acknowledged by the Respondent by letter dated 27th June 2017.

Therefore, it is our position that the Complainant as properly approved for the scheme and should have transferred to the incoming Company where he would have been placed on the scheme and continued to be paid, the decision to unfairly dismiss him has denied him this benefit. Alternatively, he should have remained on payroll of the Respondent where he would be receiving IOD. Either way, the Respondent has denied him this benefit by terminating his employment.

In relation to the proposed transfer, it is the Complainant’s position that he wished to remain with the Respondent, the site in Baldoyle was awkward to get to, it placed unreasonable demands on him. He had to make 2 bus journeys before and after his shifts. He felt if he was transferred to the new company he would be left with this awkward shift pattern, he expressed his wish to stay with the Respondent so that he would have an opportunity to seek a more work friendly site.

There were several ways that the Respondent could have facilitated the Complainant’s wish to stay with the Company such as a move to another site, part time working, lay off, the management refused to facilitate the Complainant in any manner and chose to force the transfer on him.

SIPTU emailed the Respondent on 21st July following representations made to the union, in that email SIPTU advised the Respondent of the following:

·         That the Complainant was on injury on duty benefit from 23rd June and not available for work.

·         He was shocked to receive a letter terminating his employment.

·         He did not sign a resignation letter sent to him by the Respondent.

·         He did not receive a letter dated 22nd June 2017.

SIPTU received an email dated 15th August 2017 from the Respondent’s HR Manager stating:

“I can confirm that I have discussed XXXXXXX situation with XXXXXXX and the decision has been reached the dismissal must stand given the circumstances”. The Complainant did not resign his position, he was unfairly dismissed by the Respondent.

The Law

Transfer of Undertakings

The Complainant did not refuse to the Transferee, he objected to the transfer and expressed his wish to remain with the Respondent. In Symantec v Leddy and Lyons [2009] IEHC 256 Edwards J. found that “the Directive does not preclude an employee from objecting to the transfer of his contract of employment …” Also, the question whether the Irish implementing legislation makes particular provision as to what will occur if employees decide not to transfer, it does not [emphasis added].

The Complainant objected to the transfer because he was on a site for 6 months that he was not trained on, despite being assured that he would be trained, the shifts and travel arrangements were onerous, to say the least, in his view he would be left with these terms and conditions following the transfer. The Respondent did nothing to allay these serious concerns.   The Complainant felt isolated.

Further to the above a letter was set out to the complainant dated 27th June received on 29th June. The letter is in relation to an accident the Complainant had on site on 24th June 2017 where he was removed by ambulance to Hospital. The accident was recorded and reported to a work colleague who in turn reported this to the Client supervisor. The work colleague also reported the accident to TR NNC, all procedures were followed.

The Respondent was acutely aware that the Complainant was injured on duty and attended hospital as a result of his injuries. This letter written 3 days before the transfer deadline did not address the transfer or the Complainant’s right to be placed on the injury on duty scheme/policy.

The Respondent’s Health and Safety Manager approved the Complainant’s entry into the scheme.   It should be noted that entry into the scheme is from the first day of the injury which in the Complainant’s case this was 24th June 2017, he is entitled to be on the scheme for a maximum of 104 weeks. The Health and Safety Manager has confirmed that the Complainant was placed on the scheme from 24th June 2017.

Therefore, based on the facts as set out above on the operative date of the transfer the Complainant was on the injury on duty benefit and the Respondent has a duty of care to ensure that he remains on the scheme.

Termination of the Contract of Employment by the Respondent

The Respondent dismissed the Complainant without affording him the right to fair procedures and natural justice. They also did not use their own disciplinary policy, save when SIPTU contacted them, they then offered the Complainant an appeal into a procedure they did not invoke.

In Mayland v HSS Ltd UD 1438/2004, the EAT said that the fact that the employer’s disciplinary code contained a provision to the effect that a failure to follow cash procedures would result in summary dismissal was not determinative of the reasonableness of the employer’s decision to dismiss. It was necessary to consider the provision in light of how it would be applied by a reasonable employer “in all the circumstances of the case”.   Accordingly, the EAT said it would be open to it to consider whether “having regard to the gravity of the offence, the surrounding circumstances, the claimant’s length of service and her [unblemished] record with the Respondent a reasonable employer would have dismissed the claimant”.

Conclusion

The Complainant was dismissed without access to fair procedures and natural justice, we are asking you to find that:

·         The complainant was denied his constitutional right to fair procedures and natural justice.

·         He was unfairly and unreasonably dismissed by the Respondent who denied him access to the Injury on Duty scheme / policy.

·         Order the Respondent to re-instate the Complainant with immediate effect.

We reserve the right to raise further and better particulars orally and in writing at the hearings.

Background

The Respondent is a licensed provider of security and related services to customers nationwide and is involved in the provision of static guarding, mobile patrol, electronic security, monitoring and cleaning services around the country.

Background to the Claim

The Claimant was an employee of the Respondent employed in the position of Security Officer and from 1st July 2005 until the termination of his role by the Company on 1st July 2017.

The Claimant has a standard contract of employment and is entitled to 40 hours per week at a rate of €11.64 per hour. The Claimant submitted his claim on 17th October 2017.

CA-00015576-001

The first part of his claim is outlined in the submission to the WRC is as follows” The Company claim that I have refused to transfer under the Transfer of Undertakings and have terminated my employment on that basis.   However, I did not refuse to transfer.   I was injured while on duty and was in receipt of injury on duty pay at the time. I should either have been transferred to the incoming employer or have continued under my current contract and have been moved to another site “.

To outline our case, it is useful to outline the timelines involved.

In mid-April 2017, the Respondent was informed that it had lost the contract it provided to xxx site to another Security company, with a transfer date of 30th June 2017. 22 staff were affected. Out of the22, 19 transferred to the new employer. One member of staff left, one remained on in employment due to the fact that he was part of a pre-1994 company union agreement regarding TUPE out of the business and the Claimant refused to transfer which resulted in his resignation and departure from the business.

20th April 2017, a letter went from the Respondent to the Claimant to explain:

·         The fact that the contract that the Respondent had with xxx had been lost to for the provision of Security service.

·         That the contract would cease as of 30th June 2017.

·         That the Claimant’s employment would transfer to the new Contractor under the Transfer of Undertakings Regulations 2003 and all of the terms and conditions of employment, including service, that the Claimant enjoyed as the Respondent’s employee would transfer to the new employer.

On 15th June 2017 email received by the Respondent’s HR to state that the Claimant would not be transferring under TUPE.

22nd June 2017, the Respondent’s letter to the Claimant clearly outlines:

·         The Respondent are not in a position to redeploy officers from the xxxx contract.

·         Should an employee refuse to transfer with the TUPE the Respondent are not in a position to redeploy any employee from this site and provide full time hours.

·         Any employee who refused to transfer with the contract will be deemed to be resigning their post.

·         Any employee who has refused to transfer to the incoming company will be processed as a leaver on 30th June 2017.

22nd June 2017, email from XX Regional Manager to XXX SIPTU and XXX SIPTU to make them aware that one of their members i.e. the Claimant is not transferring to the incoming company under TUPE. The email states that the Respondent does not have alternative employment to offer.   The email was sent following several attempts to contact the Claimant by phone.

24th June 2017 – the Complainant is injured in an accident in work.

From 30th June to 13th July there was no contact from the Claimant. The Respondent made several attempts to contact the Claimant by phone, but he could not be reached.

13th July 2017, the Respondent wrote to the Claimant to outline that as he refused to transfer, the transfer constitutes resignation from the company. The Claimant was last paid on 21st July 2017.

From the Respondent’s perspective, it was made crystal clear to the Claimant that a refusal to transfer constituted a resignation from the Company. Throughout the final weeks of the Claimant’s employment and up until the letter of 13th July numerous calls were made to the Claimant to engage with him. None of these attempts were successful as the Claimant did not pick up his phone.   The Respondent was left with no alternative but to treat the Claimant lack of engagement as well as his refusal to transfer as his resignation from the Company. In addition to the Respondent trying to make contact with the Claimant directly, the Respondent engaged with the Claimant’s Trade Union to make them aware of situation and what would happen in the event that the Claimant refused to transfer. Several conversations were had with a Trade Union Official from SIPTU and the Respondent was informed throughout the time of the transfer and up until mid-July that the Claimant was uncontactable.

The Respondent has a long-standing understanding with its staff and indeed the Company union SIPTU regarding what happens in the event that the Company loses a contract to another Service Provider.

The Respondent also adhered to the ERO in relation to disclosure of information to the Claimant and at all stages, the Claimant’s Trade Union were informed of developments and the circumstances surrounding the transfer.

Disclosure of Information

Employers will provide information regarding the date of termination of any contract which has been signed and if the date of such termination changes, the worker will be advised of any such change. The workers’ key representative (nominated by the trade union) shall also be advised where such applies. Employers will give the information where reasonably practicable and not later than 30 days before the transfer of contract is carried out and in any event in good time before the transfer is carried out.

In the event of a transfer of undertakings, the outgoing contractor will also provide to all workers ia written statement up to 3 weeks prior to the contract transfer date or at the earliest opportunity in a case where 30 days’ notice has not been provided by the Client.

CA-00015576-002

The second part of the claim as outlined several claims. The Respondent refutes all of these with the following response

Bullying and or harassed by the employer by failing to provide adequate training: no complaint of bullying/harassment was ever received from the Claimant. The Company has a Bullying and Harassment policy as part of all contracts of employment and the Employee Handbook. IN addition, the policy is available on the Electronic System it uses called ESS.   The Claimant was given all the correct training and we have attached a signed copy of the Safety Statement from the Claimant.

Not given proper procedure to transfer: from the Company perspective, this is simply not the case. Correct procedure was followed.

Promised transfer to another site: from the Company perspective, this is simply not the case. There were no other sites to transfer to at that time. The Regional Manager’s email to SIPTU on 22nd June 2017 confirms that.

Removed from the Roster prior to the transfer without affording me the allotted amount of time (30 days) to respond to the Company: the first correspondence was sent to the Claimant on 20th April regarding the transfer which occurred on 30th June. The Claimant work was on a scheduled roster throughout the months of April, May and June.   The Company totally refute this claim.

Isolated by the Company in relation to and during the course of the Transfer of Undertakings: The Company totally refute this claim as the Claimant was in no way isolated, as can be seen from the correspondence sent to him.

At the time of the transfer, I was unable to transfer due to injuries on duty: the Claimant was passed on certified sick leave from 24th June 2017 to 30th June 2017 and was deemed fit to resume work on 1st July 2017. The fact that the Claimant was on certified leave on the week prior to the transfer in no way hampered a transfer to the new employer.

CONCLUSION

CA-00015063-001

There Is no question whatsoever in view of the Company that the Claimant was fully informed of the transfer and the options open to him. These were:

·         Transfer to the new employer under TUPE.

·         Refuse to Transfer and the matter would equate to a resignation as the Respondent could not offer alternative employment.

In the business the Respondent operates, there is a significant number of TUPE’s in and out.   There is a standard process that is followed and understood between the Respondent and the Claimant’s Union.   Were it to be found that the Respondent acted in any way untoward in the circumstances outlined, it would have most serious consequences for the business.

The adjudicator is respectfully asked to consider the Respondent’s position in regard to Section 8 of the Unfair Dismissals Act 1977 and find in its favour.

CA-00015063-002

The Adjudicator is respectfully asked to consider the Respondent’s position in regard to all of the claims listed under Section 13 of the Industrial Relations Act, 1969 and find in its favour on the basis of the explanations provided.

On a daily basis contracts are won and lost in the contracted services industry, these industries would include security, catering and cleaning to mention but a few.

In this instant case I note that the full complement of security officers for this contract was 22, what would happen if all 22 refused to transfer to the incoming service provider, the transferee?

In a case similar in many ways to this one the Employment Appeals Tribunal (EAT) found in favour of the Respondent: Norton v Secureway At Risk Security Group t/a Sar Security (UD865/2015), this case can be summarised as follows:

The complainant had worked for the respondent as a static security guard on a site in Cherrywood, where he was transferred by the Respondent in mid-March 2015. He had commenced working for the respondent on 8th October 2008 and prior to working on the site in Cherrywood , he had worked on a site in Greenhills for approximately one year.

However, the respondent lost the contract for the site in Cherrywood. The respondent submitted that there was a transfer of undertakings and the 2003 Regulations applied. However, the complainant submitted that he objected to the transfer and that the respondent, by not providing him with further work, unfairly and constructively dismissed him.

The EAT noted that submissions had been made to the effect that the complainant had been deliberately moved to the Cherrywood site ‘in the knowledge that the contract was coming to an end…’ In relation thereto, the EAT disagreed. The majority held that although there may have been a ‘cavalier attitude’ adopted by the respondent, the complainant’s contract of employment did provide that the complainant’s place of work was subject to change at the behest of the respondent. Moreover, there was a need for security personnel on the site in Cherrywood at the time. The EAT also acknowledged that the complainant’s role transferred to the new employer in Cherrywood and that the role was therefore still open to the complainant.

The next issue the EAT addressed was whether the present case was one to which the 2003 Regulations applied. Applying Spijkers v Gebroeders Benedik Abattoir CV (1986) 2CLMR 296 and Suzen v Zehnacker Gebäudereinigung GmbH [1997] IRLR 255, the EAT unanimously held that the complainant’s employment was the subject of a transfer of undertaking under the 2003 Regulations. Indeed, it found that the transfer in the case at hand was a standard TUPE case and the transfer of all staff on a site is generally considered “custom and practice” in this sector of employment. However, it noted that the 2003 Regulations themselves and particularly reg 4 prevents an employee from deciding of his/her own accord that they did not wish to continue the employment relationship with the transferee. In this regard, the EAT noted that in Symantec v Leddy [2009] IEHC 256. Edwards J found that nothing in the 2003 Regulations ‘or in national legislation’ facilitated an employee in maintaining a relationship with the transferor that would enable him/her to make a claim for redundancy. Thus, the EAT concluded that nothing in the 2003 Regulations or national legislation supported the complainant’s claim for unfair dismissal.

In this case it was stated by the Complainant’s representative that the Complainant did not refuse to transfer to the incoming security provider. By email dated 15/06/2017 and sent to the Contracts Manager the Complainant stated:

“I XXXX XXXXXX will not be transferring over on Tupe to (name of incoming contractor) I wish to remain in employment with (name of Respondent)”

This email, when received by the Contracts Manager was forwarded to the Regional Manager who responded to the Complainant:

“Many thanks for your email to (name of Contracts Manager inserted).

Please be advised that TUPE applies in full.

If you do not wish to transfer, you will be resigning your position in (Respondent company name inserted) effective Friday 30th June”

This exchange of emails took place within a 20-minute time frame.

In the period of approximately one week prior to the transfer the Respondent made efforts to contact the Complainant but were unable to do so. The Respondent kept the Complainant’s trade union informed on all developments.

There is no ambiguity in relation to the Complainant’s intention not to transfer to the incoming contractor and equally so there can no ambiguity in relation to the outcome that such a decision would have. The Respondent (management) make it clear what the consequences of such a course of action would be.

In conclusion, I am satisfied that the Complainant did refuse to transfer to the incoming security service provider and if he was not aware of the consequences of his actions in sending the email he was very quickly made aware by management.

Management made several attempts to contact the Complainant, it was not helpful that the Complainant made himself uncontactable.

As already stated, the facts of this case are very similar to the case referred to above, Norton v Secureway At Risk Security Group t/a Sar Security (UD865/2015).

I have considered this complaint in detail and now find that the complaint is not well found. The Complainant was not unfairly dismissed from his employment with the Respondent.

The complaint form completed by the Complainant includes a complaint made under section 13 of the Industrial Relations Act 1969. There was no mention of this complaint at the hearing and was not included in the submissions presented by the Complainant. Due to the non-pursuit of the complaint I am deeming it not well found.

I have found the complaint not to be well found, the Complainant was not unfairly dismissed.