ADJ-00013960

Complainant

Respondent

Anonymised Parties

A security officer

A security company

Representatives

self

 Company management

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00018042-001

20/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00018042-004

20/03/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00018042-005

20/03/2018

The Complainant is a security officer who was employed by company 1 on 02/03/2008, he transferred under TUPE regulations to company 2 and then company 3. The Respondent became his employer when they took over company 3.

This complaint was received by the Workplace Relations Commission on 20thMarch 2018.

The complaint contains three individual complaint, all have been referred under section 7 of the Terms of Employment (Information) Act, 1994.

Complaint – CA 00018042 – 001 alleges that the Respondent did not notify the Complainant of changes to his terms of employment.

Complaint – CA – 00018042 – 004 alleges that the Complainant did not receive a statement in writing of his terms of employment.

Complaint – CA – 00018042 – 005 alleges that the Respondent has failed to pay him sickness benefits he has an entitlement to.

Complaint – CA 00018042 – 001

“I have been removed form my permanent site on 23/02/2018 by the operations manager under extremely serios accusations that affects my wellbeing, good name and is a serios defamation of my character. I believe that I am entitled to a proper investigation of the reasons for this removal. The Operations Manager ignored my verbal complaint claiming that there was no complaint made about me and that’s it.”

Complaint – CA – 00018042 – 004

“On 24^th February 2018 I was forced by the Respondent to start covering retail sites without my consent. I refuse to cover them because it’s a serious change of terms and conditions of my employment.  I never cover or agree to cover retail sites, it’s a completely different type of security that require different training and experience.  Under TUPE no terms and conditions should be changed.  I joined the company that was only covering static sites under DCC contract.  I was only trained to do static and patrol jobs for the last ten years.  I joined the company as a Security Officer not as a retail security guard”.

Complaint – CA – 00018042-005

The Respondent refused to pay me sick benefits under the TUPE transfer as the former company 2 staff claiming I am a former company 1 security staff, under my contract.  I was transferred to the Respondent with all my staff benefits and during the transfer I was guaranteed by both sides that nothing would change in relation to my job description, position, benefits or type of security service I had provided.  The Respondent informed me in the email that I am not entitled to sick pay scheme.  If I had known that the Respondent would not honour the benefits of staff, I would have never joined the Respondent company”.    

CA – 00018042 – 001.

The Complainant has lodged a complaint that he was not notified in writing of a change to his terms of employment pursuant to Section 7 of the Terms of Employment Act 1994.

It is understood from the complaint form that his complaint arises from his position that he was removed from his “permanent” site on 23^rd February 2018 and that this presumably contravenes his terms of employment.  The Company refers the Adjudicator in this regard to the Complainant’s Employment Contract dated 9^th April 2008 which clearly provides at Clause 9

“The current base of the Company is currently xxxxxx but this may change in the future.  Due to the nature of the duties that you will be expected to undertake, your place of work will vary according to the operational needs and client specifications.  You will be based in the greater Dublin and surrounding areas and you will be required to transfer between sites of the Respondent and other places of business, client premises and/or the premises of such subsidiary companies or organisations as the employer may require from time to time”.

It is respectfully submitted that the Complainant’s Employment contract clearly provides that the Employer may move him from site to site arising from operational needs and/or client’s needs.

Complaint CA-00018042-004

This specific complaint provides that the Complainant did not receive a statement of his terms and conditions of employment.  This is obviously incorrect as per his contract.

In terms of the further complaint under this heading that the Complainant felt that he was not obliged to cover retail security sites-this is not correct.  There is no such condition in his contract.  It was made clear to the Complainant by his manager that the company would not be able to facilitate his request as per the email to him from his manager RC: “While we have tried to accommodateyourrequests in the past it is no longer feasible for the business to give you non-retail sites only as your preference.  This would be highly unfair to your colleagues and risks setting a precedence within the company”.

CA-00018042-005

This specific complaint again arises under Section 7 of the Terms of Employment Act, 1994.  The Complainant was paid sick pay in accordance with his contractual right as per appendix 3 of his contract.

I believe the root of the problem lies in the fact that the Respondent company transferred the Complainant from a static site that he had been on for many years to a new site. As per the Complainant’s contract of employment such a transfer is covered in clause 9. When looking at custom and practice it is not unusual for security officers to spend years on one site. I am satisfied that the Respondent had reasons for this transfer and these were explained at hearing. I will not elaborate on this point in this decision.

CA – 00018042 – 001.

In view of the fact that the Complainant signed a contract of employment in 2008 and as mentioned by the Respondent clause 9 of said contract is as outlined below:

“The current base of the Company is currently xxxxxx but this may change in the future.  Due to the nature of the duties that you will be expected to undertake, your place of work will vary according to the operational needs and client specifications.  You will be based in the greater Dublin and surrounding areas and you will be required to transfer between sites of the Respondent and other places of business, client premises and/or the premises of such subsidiary companies or organisations as the employer may require from time to time”.

CA-00018042-004.

When the Complainant raised the subject of retail sites his manager by email stated:

“While we have tried to accommodateyourrequests in the past it is no longer feasible for the business to give you non-retail sites only as your preference.  This would be highly unfair to your colleagues and risks setting a precedence within the company”.

Again, I look at the contract of employment – there has been no breach of contract.

CA-00018042-005

The Respondent clearly states that the Complainant did receive sick pay in line with his contract.

At hearing the Complainant alluded to the fact that in company 2 he had the benefit of an enhanced sick pay scheme whereas the Respondent was only paying the scheme outlined in the Security Industry, Employment Regulation Order (ERO).

This enhanced scheme would be the one that should have transferred with the Complainant.

In complaints referenced CA – 00018042 – 001 and CA-00018042-004 I find these complaints are not well founded and fail.

CA-00018042-005 – I find this complaint is well founded and the Complainant should now be paid the difference between the ERO Sickness Benefit and the enhanced scheme he had in company 2