Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

Representatives

Act

Complaint Reference Nos.

Date of Receipt

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

CA-00019727-001

12/06/2018

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

CA-00019727-002

12/06/2018

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

CA-00019727-003

12/06/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00019727-004

12/06/2018

The Complainant is a security officer and claims that he took up an interim security supervisor position with the Respondent when it could not fill the vacancy on a permanent basis. He claims that he did not receive notice of his terms and conditions, he did not get rest breaks, and subsequently was unfairly dismissed from the position.

The Respondent denies all the claims alleged against it, claiming that he was afforded all his rights while he worked with it and he was not dismissed but left of his own free will.

CA-00019727-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant claims that on 1 December 2017 he took on the role of interim security supervisor with the Respondent and signed a document setting out his new terms and conditions. He said that in March 2018 he applied for an external position with one the Respondent’s clients and was placed on a panel for future employment. He said the Respondent was aware of his interest in moving on. He said that on 10 May 2018 he received an email telling him that he was being moved back to the security team as of 14 May 2018, but he claims that he did not get written notification of his new terms and conditions of employment.

CA-00019727-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant claims that he worked predominately in two areas, one on the back gate and the construction site itself. He said that both areas are a 12-hour shift with no relief for breaks. He said that he was provided with a kettle, microwave and a fridge. However, there were no breaks away from these areas when he was on shift duty.

CA-00019727-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Complainant claims that he had a verbal agreement with his Area Manager and the HR Director that he would keep his 4-shifts totalling 48 hours per week. He said that since he was unfairly dismissed from the interim security supervisor role, which he had taken up in December 2017 and ended May 2018, his terms and conditions changed. He said that he was not given the hours as agreed and he was unable to reach the Area Manager responsible for the roster to discuss this.

CA-00019727-004 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Complainant claims that in March 2018, he was placed on a panel for an external position in one of the Respondent’s clients. He said that at no time had he given the Respondent a date of termination of employment to take up the post with this external company. He said that out of courtesy he informed his area manager of the situation but he had not mentioned any time scales. He said that in April 2018 he was asked to train a fellow security officer to take over from him when he would eventually move on. He said that on 8 May 2018 he was informed by email that his interim position was taken away and the security officer he was training would take over from him. He said that he lost his position, and suffered a loss of earnings, there was uncertainty regarding his working week, and the prior agreement of hours to work was not being adhered to. The Complainant claims that this was an unfair dismissal under that Act.

CA-00019727-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent said that the Complainant received his terms and conditions for his position and when he took up the position as interim supervisor he signed that interim contract with the new terms and conditions which was an interim post and to be determined by the needs of the Respondent and its Client. When the interim position was filled permanently the Complainant stepped back to his original contract under the same terms and conditions as he had previously. The Respondent said that there is no breach under the Act.

CA-00019727-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Respondent claims that there was no breach under the Act. It claims that it provided him with necessary breaks. It claims that all breaks were paid for. It claims that these security points that he worked on were two key security points to the client’s needs. It claims that it provided him with all the necessary modern amenities for his comfort. It referred to the appropriate Employment Regulation Order for the Security Industry and said that the Complainant was afforded all his rights and obligations accordingly.

CA-00019727-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The Respondent claims that it is not sure what this claim is about, that the Complainant’s contract does not specify that he is entitled to work 4 shifts and 48 hours and there was no change made to his term and conditions following his return to a security officer position.

CA-00019727-004 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The Respondent claims that the Complainant was not dismissed and at the time of him lodging his complaint with the Workplace Relations Commission he was still an employee of theirs. The Respondent presented an email received from the Complainant dated 20 September 2018 giving notice of termination of employment on 27 September 2018. The Respondent said that the Complainant left his employment of his own free will.

CA-00019727-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

Having heard the evidence I note that the Complainant had a contract of employment setting out his terms and conditions. I note that he signed a contract setting out the terms and conditions of his interim/temporary post. I note that he was advised by email that he was reverting back to his original position as of 14 May 2018.

I am satisfied that the Complainant is aware of the terms and conditions of his security officer position prior to taking up the interim supervisor position and he has received a copy of those terms and conditions prior to filling the interim supervisor position. It should be noted that he got a copy of the terms and conditions of the interim supervisor position too. I note when he reverted back to the security officer post he reverted back to the terms and conditions of a security officer. There is no breach of the Act.

I find therefore that the complaint is not well founded.

CA-00019727-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

The Complainant was employed in the security industry and the activity he is engaged in falls within the activities exempted under schedule 2 of the Organisation of Working Time Act (General Exemptions Regulations) Statutory Instrument 21, 1998, in relation to the matter of breaks. I also take note of the Employment Regulation Order (Security Industry Joint Labour Committee) 2017 Statutory Instrument 231 of 2017. Under the exemption, the employer is not obliged to provide breaks within the prescribed time limits as per the Act, provided that the employer provides breaks which are reasonably equivalent.

Regulation 4 provides: “If an employee is not entitled, by reason of the exemption, to the rest period and break referred to in sections 11, 12 and 13 of the Act, the employer shall ensure that the employee has available to himself or herself a rest period and break that, in all the circumstances, can reasonably be regarded as equivalent to the first-mentioned rest period and break.”

I note there is a difference of opinion in relation to the breaks. The Complainant claims that he did not receive adequate breaks as per the Organisation of Working Time Act, whereas the Respondent claims that rest breaks were always provided for and there were no issues raised by him with it heretofore. I am satisfied that from the evidence adduced this issue appears to have only become a concern when the complaint was lodged with the WRC. I am satisfied that the Complainant’s employment is an exempted employment regarding breaks in accordance with the Statutory Instrument. However, the Complainant is still entitled to breaks and I do not have any records supporting the case that the Complainant received appropriate breaks; the onus is on the Respondent to do so. On the balance of probability, I prefer the Complainant’s version of events here.

I find therefore that the complaint is well founded.

CA-00019727-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

Having listened to both parties in relation to this complaint I am satisfied that there was no change to the Complainant’s terms and conditions which would place an onus on the Respondent to provide the Complainant with amended written terms and conditions.

I find therefore that the complaint is not well founded.

CA-00019727-004 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

Dismissal under the Section 8 of the Unfair Dismissals Act

““dismissal”, in relation to an employee, means

(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer, or

(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose”

As a starting point I have to determine whether a dismissal has occurred. Having listened to both parties, I am satisfied that the Complainant claims that the act of him reverting from the interim position back to his original position is, in his view, a dismissal of him and that falls foul of the Unfair Dismissal Act.

The Respondent was very clear that the Complainant was on a permanent contract as a security officer and then took up a temporary contract as a supervisor until that position was filled on a permanent basis. While the Complainant held that supervisor role the Respondent continually pursued to have the post filled. The Complainant had interviewed for an external post with the Respondent’s client and had informed the Respondent of his intention to leave when he was offered a job with this third party. In the meantime, the Respondent interviewed and selected someone to fill the supervisor role. The candidate was trained, by the Complainant, to take up that supervisor role, and the Complainant, who was temporarily doing that job, returned to his permanent post as a security officer.

I note the evidence from both parties that the Complainant’s filling of the supervisory position was temporary in nature. There was no dispute here. The Complainant was not led astray to believe anything else.

I note that the external post that the Complainant was expecting to be offered did not materialise and I expect that caused him great upset. He was relinquishing the supervisory post and was returning to his security officer position. I am not satisfied that this qualifies as dismissal. He continued to be gainfully employed with the Respondent after reverting to his security officer position. Accordingly, I find that the Complainant was not dismissed.

Accordingly, on the basis of the evidence and my findings above and on the basis of the definition of “dismissal” as contained at Section 1(1) of the Unfair Dismissals Acts, 1977 – 2015 I declare I do not have jurisdiction to hear this complaint as I find that the Complainant was not dismissed as set out at Section 1(1) of the Act.

CA-00019727-001 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The complaint is not well founded.

CA-00019727-002 - Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

In accordance with Section 27 of the Act, I declare the complaint is well founded and order the Respondent to pay to the complainant the sum of €500 (five hundred euro) in compensation for being in breach of the Act.

CA-00019727-003 - Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

The complaint is not well founded.

CA-00019727-004 - Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

The complaint is not well founded.

Unfair Dismissals Act - Terms of Employment (Information) Act - Organisation of Working Time Act – security officer – supervisor – reverting back.