ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00019660
Parties:
| Complainant | Respondent |
Anonymised Parties | A security Guard | A Security Provider |
Representatives | Joy Fouzai |
|
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00026144-001 | ||
CA-00026144-002 | ||
CA-00026144-003 | ||
CA-00026144-004 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
This matter comes before an Adjudicator of the Workplace Relations Commission on foot of complaints which are contained in a Workplace Relations Complaint Form dated the 16th December 2016, wherein contravention of certain relevant provisions of the Organisation of Working Time Act of 1997 have been alleged.
In accordance with Section 41(4) of the Workplace Relations Act, 2015 this matter has been referred to the Adjudicator Services by the Director General of the Workplace Relations Commission and in particular it has been referred so that this matter can be inquired into and the parties be given an opportunity to be heard and to present evidence relevant to the complaint.
The Complaints have been made within the appropriate time limits.
Pursuant to Section 27 of the Organisation of Working Time Act 1997 (as amended), a decision of an adjudication officer under Section 41 of the Workplace Relations Act shall do one or more of the following:
Declare the complaint was or was not well founded;
Require the Employer to comply with the relevant provision;
Require the employer to pay to the employee compensation of such amount as is just and equitable having regard to all the circumstances but not exceeding 2 years remuneration.
In addition, the Complainant complains of a contravention of Section 5 of the Payment of Wages Act, 1991, that is, a Complaint of an unlawful deduction having been made from the Employee’s wage. Pursuant to Section 6 of the said 1991 Act, in circumstances where the Adjudicator finds that the complaint of a contravention of Section 5 aforesaid, is deemed to be well founded, then the Adjudicator can direct that the employer pay to the employee an amount which is subject to the limits set out in Section 6 of the 1991 Payment of Wages Act 1991.
This file is linked to another file – ADJ 18761. These should be read together, and it should be noted that there is a certain amount of overlap contained therein.
Background:
The Complainant worked as a security guard with the Respondent company for five months during 2018. The Respondent terminated the employment in December 2018. The Complainant has brought a number of complaints concerning his employment. The Complainants are brought within time. This file is linked to another file – ADJ 18761. These should be read together, and it should be noted that there is a certain amount of overlap contained therein. |
Summary of Complainant’s Case:
The Complainant believes he was unfairly dismissed when he was issued with a P45 in December 2018. He received no Minimum Notice and had other issues had arisen which amounted he says to breaches in the legislative prerogatives set out for all employers. |
Summary of Respondent’s Case:
The Respondent’s case was presented by a Mr. GD who is a Director of the Respondent Company. The Respondent company was absorbed into a larger company in and around October of 2018. |
Findings and Conclusions:
I have carefully considered the evidence adduced before me. The Complainant’s spouse presented her husband’s case in circumstances where English is not the Complainant’s native tongue. The Respondent representative had no difficulty with this. The Respondent commenced his employment in and around the end of July 2018. The Respondent company provides security personnel across a range of service providers including Hospitals and other sensitive spaces. The Complainant lives in Cavan and I recognise that there were always going to be logistical difficulties. The Complainant had signed a Contract on the 20th of July 2019 which specified that the Complainant was available to work in Cavan and Navan but also Dublin which he must have known was a five-hour round trip. The Contract of Employment specifies a Probationary period of 6 months and I accept that the Complainant was told before he commenced his work that the Employer was prepared (from the outset) to guarantee at least 24 hours of work each week. This was an unusual concession as ordinarily the Employer only gives this guarantee after the first six-month probationary period has been completed. This evidence of oral assurances given to the Complainant was not contradicted or challenged. It is noted that whilst the Complainant signed a copy of the Contract of Employment he did not receive or request a copy at that time (July 2019) and therefore cannot have known the detail of the content of the Contract. The Contract was ultimately provided and was presumably always available. I do not doubt that the employment was difficult and that to some extent this arose as a consequence of the long hours and scheduling which the Complainant was given. Very often it seems he was given twelve-hour night shifts back-to-back. This might suit some employees but when factoring in the arduous travel time table I accept that it was difficult for the Complainant. As time moved on the Complainant asked his direct line Manager to find work closer to home for him. In time the Complainant started to pick up shifts in the Hospital only five minutes from his home. In addition, the night shifts were staggered where possible allowing the Complainant a day of rest between any two such shifts. It is the nature of the business that rosters are only given a week in advance and that no shift or venue is guaranteed. Difficulties arose in the local Hospital when the Complainant says he was required by staff there to assist with patients in a manner which the Complainant felt was well outside of his job specification. The Complainant raised the issue with his line Manager although feels nothing was ever done about this. The Complainant expressed a preference to go back to the Hospital in Dublin where it was less trouble. However, there followed a period of two to three weeks where the Complainant was simply not rostered anywhere, and very little explanation was given. To some extent, I think that there were mixed signals coming from the Complainant who was slow to travel to Dublin because his son was sick. In addition, he concedes that he refused a shift at short notice as it was not easy get to. Also, having expressed a distaste for the work in the local Hospital he did seem to want to be returned there on a regular basis. However, my understanding is that there might have been a stand-up row in the workplace which made it difficult for the Employer to place the Complainant back into that particular workplace. However, I do accept that the presentation of entirely blank rosters was contrary to the guarantees given to the Complainant that he could expect a minimum of 24 hours work in any given week. The Complainant was met with a wall of silence when he tries to raise the issues with HR. This happened for about three weeks. Subsequently at the beginning of December the Complainant was rostered to work again and was given more than the 24 hours. The Complainant had pre-booked holidays to commence on the 21st of December and was anxious to ensure his holiday would be paid in advance. Instead of giving this assurance the Employer sent the Complainant a P45. The Complainant was not given any notice and the received this document with some considerable shock. No explanation has ever been given to the Complainant as to why this was done. The Complainant received his Contract of Employment after this date and having requested it form the Employer. Mr. GD on behalf of the Respondent, conceded that there were a number of issues outstanding and whilst he was not willing to submit to the issue of Unfair Dismissal (raised in the context of the Industrial Relations Acts) he did agree that a number of areas of pay continued to be due and owing. I note that the Holiday pay was paid on the 28th of December 2018 some two weeks after the date it was due. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 -CA-00026144-001 The claim for Public Holiday entitlements has been dealt with in ADJ 18761. I make no further order. Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991 - CA-00026144-002 The claim for Minimum Notice entitlements has been dealt with in ADJ 18761. I make no further order. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 -CA-00026144-003 The claim for excessive night hoursis not well founded. This claim fails. Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997- CA-00026144-004 The claim for annual leave entitlements has been dealt with in ADJ 18761. I make no further order. |
Dated: May 2nd 2019
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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