ADJ-00014532

Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Company

Representatives

MartinaWeirSIPTU-Workers Rights Centre

Ronnie LawlessIBEC

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-00018977-001

04/05/2018

The Complainant commenced employment with the Respondent, a security company, on 1 June 2017, in the role of a Security Officer. For the majority of the Complainant’s employment with the Respondent, he worked on one specific client site.

In September 2017, the Complainant raised a grievance in relation to a number of aspects of his terms and conditions of employment. Following engagement between the parties over the following number of months, the process concluded with a grievance meeting which was held on 4 January 2018. Following this meeting, the Respondent sent a letter to the Complainant addressing the issues raised in his grievance. Notwithstanding that the Complainant felt his issues had not been dealt with to his full satisfaction, he accepted the Respondent’s responses.

The Complainant returned to full roster at a different client site, than that at which he had been previously working. Following an incident at the new client site, the Respondent was advised by the client that they were not willing to have the Complainant returned to the site.

On the basis that they had no alternative location in which to place the Complainant, the Respondent informed him, by way of letter dated 17 January 2018, that they did not have a security position available for him in the foreseeable future.

The Complainant submitted a claim, under the Unfair Dismissals Act, 1977, to the Workplace Relations Commission on 4 May 2018.

General Background:

The Complainant’s Trade Union representative submitted that he worked as a Security Operative with the Respondent at one of their client sites. It was stated that the Complainant commenced employment with the Respondent on 1 June 2017 and his employment was terminated on 17 January 2018.

According to the submissions made on his behalf, the Complainant normally worked 40 – 60 hours per week on a 4x12 hour shift basis, rotating between day and night shifts. It was stated that the Complainant’s working hours/roster was notified to him by text, one week in advance.

It was submitted that the Complainant reported to a company director, Mr A and to the Financial Director, Mr B.

It was further submitted that five Security Officers were assigned to the site at which the Complainant worked and that they covered all shifts between them. According to the Complainant’s submission, he was issued with and signed a contract of employment, which the Respondent later said they had mislaid. They issued a new copy, which was not, at the time of dismissal, signed by the Complainant.

It was further submitted that the Complainant had a good relationship with management at the client site and found them to be supportive. In addition, it was submitted that the Complainant had no disciplinary sanctions on his record and carried out his job diligently.

According to the submissions made on his behalf, the Complainant had just over seven months employment when he was dismissed by the Respondent. The Complainant submitted that a number of issues had arisen in advance of his dismissal and he attributes them to his dismissal. It was submitted on behalf of the Complainant that the suggestion, by the Respondent, that his dismissal was a consequence of a reduction in the workforce, is not the case as there was sufficient work for him at the time of his dismissal.

It was submitted on behalf of the Complainant that the Respondent dismissed him based on their view that he was recruiting employees into the union and had claimed that he was bullying staff into joining the Trade Union.  In addition, the Complainant submitted that his dismissal was based on him raising concerns around his terms and conditions of employment, which he alleged the Respondent was reluctant to address.

Background to the complaint:

The Complainant’s Trade Union representative provided a detailed and comprehensive submission in relation to the Complainant’s employment with the Respondent, with particular reference to the period between September 2017 and the termination of his employment in January 2018.

According to his submission, things started to go wrong for the Complainant in/around September 2017 when he was requested to come to work to relieve a colleague who had been working 19 hours at the client site. It was submitted that while the Complainant agreed to cover his colleague, for these additional hours, he discovered that the following week he was rostered to work the same hours again. The Complainant submitted that he contacted Mr A and advised that while he agreed to relieve his colleague previous week, he had done so as a favour on that occasion and it was not acceptable to him as a long-term arrangement, as it would result in only six hours rest for him between shifts.

It was further submitted that, in October 2017, the Complainant had reason to raise a formal grievance in relation to: (a) a deduction from his wages towards a uniform, which he alleged had not been provided to him, (b) a deduction from his wages for breaks that he had not received, and (c) loss of shifts and overtime pay.

According to the Complainant’s submission, he attended a meeting on 31 October 2017 with Mr A and Mr B. According to the Complainant’s submission, the representatives of the Respondent who attended the meeting said they would look into his grievances. However, he further stated that as nothing was agreed he had to follow-up on this.  It was further submitted that, when he received a response to his grievances from Mr B, on 26 November 2017, he found that these were not in line with his understanding of his entitlements or as set out in his contract of employment. According to the Complainant’s submission, he responded directly to Mr B by way of email on 5 December 2017.

The Complainant’s Trade Union representative also made a detailed submission in relation to two occasions on which he (the Complainant) encountered trouble with his car which impacted on his ability to attend work on those occasions, as he lived approximately 40 minutes away from the client side where he worked. According to the submissions made on his behalf, the Complainant considered the reduction in hours, which was imposed on him by the Respondent, arising from these incidents, to be an unofficial disciplinary action based on his questioning of his conditions of employment.

In addition, it was submitted on the Complainant’s behalf that the Respondent showed no support in these situations and that he did not make contact with the Respondent directly as he feared retaliation and further cuts in his shifts, which would have resulted in a loss of earnings.

According to the Complainant’s submission, when he eventually made contact with Mr A and Mr B, through email, he established that he had been removed from the roster. According to the Complainant, he saw this as suspension without pay, for which there was no valid reason and, as a result, requested that his grievance would be escalated to the Company Director (Mr C). It is further submitted on behalf of the Complainant that he considered the Respondent’s refusal to roster him until after the meeting with Mr C, to represent a disciplinary action which was not in line with company procedures or his rights and entitlements as an employee.

It was submitted on behalf of the Complainant that the meeting to consider his grievance was held with Mr C on 4 January 2018, at which he (the Complainant) was accompanied by his Trade Union representative. According to the Complainant’s submission, minutes of the grievance meeting of 4 January 2018, were produced but he did not accept the accuracy of those minutes, particularly with regard to Mr C’s raising of issues around complaints from other employees about the Complainant.

According to the submissions made on behalf of the Complainant, he accepted the Respondent’s response to his grievances, as contained in a letter from Mr C, dated 9 January 2018. It was further submitted that, although all his losses had not been addressed, he accepted the responses provided as he wished to keep his job.

The Complainant submitted that he was provided with work in a different location on 16 January 2018. However, having worked there for only two shifts he was informed, in a phone call from a representative of the Respondent that he was being dismissed. It was further submitted that the content of this phone call was confirmed by way of a letter dated 17 January 2018, which was signed by Mr B, who indicated that, due to reduction in workload they were reducing their workforce and did not have a security position available for him for the foreseeable future. It was also confirmed that this letter enclosed a copy of the Complainant’s P45 and a cheque for outstanding holidays due.

The Complainant’s case:

The Complainant’s Trade Union representative submitted that he was a diligent and conscientious worker who, after a number of months employment, began to realise that his conditions of employment were not in keeping with his understanding of his entitlements. As was set out above, in the background to his complaint, the Complainant referenced issues relating to the provision of uniform, rest breaks and the payment of overtime rates.

In submissions made on his behalf, it was suggested that the Complainant believed the Respondent was aware of his trade union membership and that he had access to guidance and information and that he was eventually punished for this by way of termination of his employment. The Complainant also contended that failure to roster him in advance of his grievance meeting, on 4 January 2018, constituted unpaid suspension and was a further example of the punitive action being taken against him by the Respondent.

According to the Complainant’s submission, the Respondent accepted, in their letter of 9 January 2018, that his union activity was a factor for them. In addition, the Complainant submitted that it was the Respondent’s company director, Mr C who suggested that there had been complaints made against him (the Complainant) by management and fellow employees around his trade union activity. The Complainant suggests that this is recorded, though not in full, in the Respondent’s version of the minutes which issued subsequent to the meeting on 4 January 2018. According to the Complainant’s submission, there was a reference to his activity around providing union membership application forms to fellow employees. However, the Complainant further stated that nothing else was put forward by way of explanation for the alleged complaints against him.

The Complainant also submitted that the Respondent’s letter of 9 January 2018 indicates that Mr C had carried out some form of investigation which included members of his management team and some employees but excluded the Complainant. According to the Complainant this is contrary to fair procedure. In addition, the Complainant also makes reference to the warning contained in the letter of 9 January 2018 that he should not “pressurise or bully employees into doing something that they did not want to do”.  According to the Complainant’s submission, this clearly demonstrates that Mr C was of the view, without the benefit of a full and transparent investigation, that he (the Complainant) was pressurising/bullying his colleagues into joining a union.

While acknowledging that some aspects of his grievances were addressed, including his return to a normal roster, the Complainant submitted it was probable that this was never the true intention of the Respondent, given that he had to follow-up to get this implemented and after only two working shifts, at a different location, he was dismissed.

According to the Complainant’s submission, he does not accept the Respondent’s contention that they had a reduction in workload and were in the process of reducing their workforce. The Complainant-based this contention on his normal working arrangements being at least 4x12 hour shifts over a 24/7 period, at a particular client’s premises. In support of the submission in this regard, the Complainant stated that a new employee was recruited and that two former colleagues had left the company, both of whom would have needed to be replaced.

Conclusion:

It was submitted on behalf of the Complainant that he had no disciplinary sanctions on his record, but he was unpopular with management because they believed he was recruiting workers into joining a trade union.  The Complainant further submitted that this was the reason for the Respondent’s actions in dismissing him and that this is clear from their own notes of the meeting of 4 January 2018 and their letter of 9 January 2018 which followed.

In addition, the Complainant submitted that he believed there was no reduction in work and that the Respondent provided additional hours to other employees and also hired new people. The Complainant further submitted that if this was a genuine workload reduction situation then he would have been placed on temporary layoff as would be common in such circumstances. The Complainant also submitted that no other employees were dismissed at the same time as him.

Consequently, based on the above, the Complainant submits that he was unfairly dismissed based on the Respondent’s view on Trade Unions and their belief that he was recruiting colleagues into the union.

Background to the Respondent:

It was submitted that the Respondent provides guarding and Patrol and Response security services throughout Connacht and the Midlands.

According to the Respondent’s submission, they have reduced in size over the last 18 months to their current complement of 150 employees. The Respondent also stated that at the time of the termination of the Complainant’s employment, they employed approximately 200 employees.

Background to the complaint:

The Respondent submitted that the Complainant commenced employment, as a Security Officer, on 3 June 2017.

According to the Respondent’s submission, on 4 January 2018, the Complainant attended a grievance hearing to discuss breaks, uniforms and his roster. It was further submitted that the Complainant was accompanied by a Trade Union representative at this meeting. According to the Respondent, during the meeting, the Trade Union representative stated that there had been rumour that the Complainant was trying to recruit other employees for the union and being removed from the roster was a form of punishment for this activity.

The Respondent submitted that, on 9 January 2018, a letter was sent to the Complainant addressing the issues raised during the grievance hearing.

According to the Respondent’s submission, on 12 January 2018, the Complainant was involved in incidents on a client site in which he damaged a card reader. The Respondent further submitted that their Operations Director (Mr D) reviewed the available camera footage from the incident and found it to be very conclusive. According to the Respondent, the client site manager stated that they did not want the Complainant rostered on their site again.

The Respondent stated that, following the incident on the client site, Mr D reviewed the roster with the Director of Sales and Manned Guarding, (Mr A), to identify if there were any other locations at which the Complainant could work. It was submitted on behalf of the Respondent that, unfortunately, they concluded that there were no other locations at which the Complainant could work without reducing hours of longer serving employees.

According to the Respondent, they were left with no alternative but to terminate the Complainant’s employment.  Therefore, on 17 January 2018, the Respondent informed the Complainant that, due to reduction in workload over recent weeks, they were in the process of reducing the workforce and that there was no security position available for him for the foreseeable future.

Respondent’s response to the Complainant’s complaint:

The Respondent submitted that the fact of dismissal is not in dispute but stated that the Complainant’s employment was terminated purely on the ground of redundancy due to loss of work. The Respondent unequivocally denies the claim that the Complainant’s dismissal was linked to his trade union membership.

According to the Respondent’s submission, in November and December 2017, they had 12 employees leave employment by reason of redundancy. It was further submitted that in 2018, they had 16 employees leave employment by reason of redundancy. According to the Respondent, the Complainant was the seventh person to leave employment in 2018.

In addition, the Respondent submitted that many of the security officers who were retained in their employment have been subjected to reduced hours and/or part-time work. According to the Respondent, they adopted a method of LIFO (last in, first out) in relation to reducing their workforce.

The Respondent submitted that, as the Complainant had less than a year’s service, he is excluded from the Unfair Dismissals Act, 1997 – 2015. In this regard, the Respondent noted the Complainant’s argument that he can avail of protection under the act by reason of Section 6 (2) (A) of the Act.

The Respondent reaffirmed their position that the Complainant is not eligible to avail of this protection as his dismissal resulted only from the reduction in the Respondent’s workload. It was further submitted by the Respondent that, as the Complainant failed to meet the requirement of 104 weeks continuous service, he was unable to avail of the protection under the Redundancy Payment Act, 1967 – 2014.

The Respondent also submitted that it was important to note that the Complainant contributed to the reduction in his hours as a result of the incident on the client site on 12 January 2018. The Respondent submitted that it was because of his actions that he could not be rostered on that site again and that this resulted in the Respondent not having any other positions available in any other locations.

The Respondent submitted that they do not have any formal arrangement with trade unions but allowed the Complainant to be accompanied by his trade union representative during the grievance hearing on 4 January 2017. In addition, the Respondent submitted that they had addressed the issue raised by the Complainant’s Trade Union representative during the grievance hearing in relation to rumours regarding the Complainant attempting to recruit trade union members. According to the Respondent’s submission, the Complainant was not prevented from encouraging employees to join a trade union but was asked to do it on his own time and not to pressure employees into doing something they did not wish to do.

In conclusion, the Respondent submitted that the Complainant was not dismissed because of any involvement in trade union activity. Further it was submitted by the Respondent that the real reason for termination was the fact that the Respondent was going through difficult trading times, which resulted in the loss of almost 30 jobs. The Respondent further submitted that, coupled with the incident on the client site, the deterioration in their trading position meant they had no suitable employment for the Complainant.

The Complainant’s claim is submitted under Section 8 of the Unfair Dismissals Act, 1977.  On the basis that the Complainant was employed with the Respondent for a period of just over seven months, (i.e. 1 June 2017 to 17 January 2018), I must first determine whether or not the Complainant can avail of the protections provided by the Unfair Dismissals Act.

Section 2 (1) (a) of the 1977 Act, as amended, states as follows:

 “this Act shall not apply in relation to any of the following persons:

(a)     An employee (other than a person referred to in section 4 of this Act) who is dismissed, who, at the date of his dismissal, had less than one year’s continuous service with the employer who dismissed him

As the Complainant in the within case has less than one year’s continuous service, the above section would suggest that the protections contained in the Act do not extend to him.

However, Section 6 (2) (a) of the Act, as amended, states as follows:

(2) “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

(aa) without prejudice to paragraph (a), the employee—

(i) being a member of a trade union which made a request referred to in section 2(1) of the Industrial Relations (Amendment) Act 2001,

(ii) being in the employment of the employer concerned in the grade, group or category to which the trade dispute, referred to in that section, relates, and

(iii) having provided evidence or other information or assistance to any person, for the purposes of the examination of that request by the Labour Court or in respect of an investigation made by it under that Act pursuant to that request,”

Having carefully considered all the evidence adduced, I am satisfied that the Complainant’s claim of unfair dismissal is based on his contention that the termination of his contract of employment took place after the Respondent held an investigation into rumours that he was recruiting employees for the union, in the course of which he was allegedly bullying staff into joining. In summary, the Complainant is contending that he was unfairly dismissed based on the Respondent’s view on Trade Unions and their belief that he was engaged in the recruiting of his colleagues to join a union.

Taking all of the above into consideration, it is, therefore, clear that the Complainant’s protection under the 1977 Act, is dependent on his allegation, in relation to the reason for the termination of his employment, being well founded such that he can claim the protections under Section 6 (2) (a) of the Act, as amended.

Having carefully reviewed all the evidence submitted, I am satisfied that the first indication the Complainant had that his alleged trade union activity may have been an issue of concern for the Respondent, came during the meeting held on 4 January 2018, into grievances which had been raised by the Complainant.

The evidence presented indicates that there was an element of dispute between the Complainant and his Trade Union representative, on the one hand, and the Respondent on the other, in relation to the precise status of the meeting, i.e. whether it was a grievance hearing or an appeal hearing. The evidence shows that the Complainant had raised his grievance in October 2017, with regard to issues around uniform, work breaks and rosters/overtime pay.

A meeting took place between the Complainant and two members of the Respondent’s senior management team, on 31 October 2017. The evidence suggests that the Respondent’s representatives at the meeting undertook to look into the Complainant’s grievances. However, the Complainant stated that, following a follow-up email from him on 26 November 2017, he received a response from the Respondent, which was not in line with his understanding of his entitlements.

The evidence indicates that further email communications between the Complainant and the Financial Director, Mr B, took place over the following weeks and culminated, on 16 December 2017, with the Complainant requesting that his grievance be forwarded to the Managing Director, Mr C.  By way of email dated 19 December 2017, Mr B, informed the Complainant that Mr C could meet with him on the afternoon of either of the following two days.

The Complainant replied, by return, indicating that, as his Trade Union representative was not available on either day, his preference was to have the meeting rescheduled in the New Year. The meeting was subsequently scheduled for 4 January 2018.  In replying to the Complainant, in relation to the scheduling of the meeting, Mr B confirmed that, while the Respondent did not recognise Trade Unions, he (the Complainant) could, if you wished, have a Trade Union representative attended the meeting with him.

The minutes of the meeting of January 2018, which were presented in evidence, at the Hearing, indicates that the majority of the meeting was taken up with the issues raised by the Complainant in his grievance. However, towards the end of the meeting, Mr C raised a matter in relation to the Complainant’s relationship with management and his fellow employees.  When queried as to why this was being raised as an issue, Mr C indicated that there had been “certain complaints made by employees and management on site”.

The minutes of the meeting record that, in reply, the Complainant’s Trade Union representative stated that a lot had happened to the Complainant and there had been rumours that he was trying to recruit other employees for the union.  It was further stated that the rumours went on to suggest the Complainant’s removal from the rosters was a form of punishment for this activity. The evidence suggests that the meeting concluded with Mr C indicating that he would have to review matters and get back to the Complainant.

During the Oral Hearing, the Complainant and his representative suggested that the reference to the rumours that the Complainant was trying to recruit other members for the Union was actually made by Mr C and not by the Trade Union representative at the meeting. Having carefully considered all the evidence presented, I am satisfied, on the balance of probability that it was more likely that the comments specifically referring to the recruitment of members for the Union was more than likely made by the Trade Union representative at the meeting.

This view is not just based on the minutes of the meeting but also on the content of Mr C’s letter of 9 January 2018 to the Complainant which contained the Respondent’s response to the grievance and the issues raised at the meeting on 4 January 2018. In this correspondence, Mr C refers to the comment having been made by the Trade Union representative and, in the context of there being no evidence to suggest that this was challenged by either the Complainant or his representative, I find it confirms my view in relation to who most likely made the comments at the meeting.

However, notwithstanding the views expressed above and irrespective of who made the comment, I find that Mr C’s actions and his subsequent response to the Complainant to be of greater significance. Firstly, I note that Mr C in responding to the issues raised by the Complainant in his grievance, appears to have addressed all of these in a reasonable and constructive manner.

Secondly, with regard to the rumours that the Complainant was recruiting employees for the union, Mr C indicated that, after the meeting of 4 January, he followed this up with the management team and some employees, in order to understand if there was any validity to the rumour. In his letter of 9 January 2018 to the Complainant, Mr C stated that the feedback he received appeared to support the rumour. Based on that, Mr C went on to state as follows: “while I cannot stop you encouraging our employees to join a union, I would ask that you do so on your own time and that you do not pressurise or bully employees into doing something that they do not want to do.”

Having carefully considered the matter, I find Mr C‘s response in relation to the feedback he had received, which suggested that the Complainant was engaged in recruiting employees for the union, to be both reasonable and balanced in the circumstances.  In addition, I do not accept, as contended by the Complainant, that this provides evidence that the termination of his employment was on the basis of the Respondent’s objection to his Trade Union activities. On the contrary, I find that the Respondent’s position, in this regard, is that he can continue his recruitment activity provided he adheres to the conditions being applied by the Respondent, which, in my view, are reasonable in all the circumstances.

One of the issues raised by the Complainant at the meeting of 4 January 2018 related to his removal from the roster pending completion of his grievance process. In response to this, Mr C states, in his letter of 9 January 2018, that the Complainant is to be put back on rosters with immediate effect and that one of his management colleagues would be in contact with him (the Complainant) later in the week regarding his work location.   In this regard, Mr C goes on to state, in the letter, as follows: “due to a fall-off in demand and a number of long serving employees now available for work, hours need to be balanced among our more recent employees. Available hours will be less than before but should increase in the situation improves.”

The evidence shows that the Complainant returned to work in or around 12 January 2018 and was placed on a different client site to that which he had previously worked at. As a result of an incident, involving the Complainant, which resulted in damage to a card reader, the Respondent was informed by their client that they did not want the Complainant placed back on their premises again.

The evidence also shows that, as a result of the above incident and based on the Respondent’s contention that they were in the midst of a downturn in business, they no longer had a position available for the Complainant and had no option but to terminate his employment on that basis. In this regard, I note the evidence presented, at the Oral Hearing, by the Respondent, in support of their contention of a downturn in business, shows a reduction of almost 24% in the number of average weekly static hours being sought by clients between September 2017 and February 2018.

Having carefully considered all of the evidence, I find it supports the Respondent’s position that the termination of the Complainant’s employment resulted from the incident on the client site and the lack of an alternative position in which to place him, rather than the Complainant’s position that the termination resulted from his trade union activities. I am of the view that, had there not been the incident which resulted in the Complainant being barred from the client site on which he was working, it is most likely, on the balance of probability, that he would have continued in employment with the Respondent.

In that context, I cannot accept that the termination of employment was related to the Complainant’s trade union activity. While the Respondent is not a unionised company, the evidence shows that they allow Trade Union representation at individual employee level, as was the case with the Complainant, and they were willing to allow the Complainant to continue his efforts to recruit members for the union.  Such an approach is not, in my view, consistent the Complainant’s allegation that his employment was terminated because of his union activity.

Taking all of the above into consideration and having carefully considered all of the evidence adduced, I find that the termination of the Complainant’s employment did not result wholly or mainly from his trade union membership or activity.  Consequently, I find that the protections of Section 6 (2) (a) of the 1977 Act do not extend to the Complainant in the circumstances and, as a result, Section 2 (1) (a) must apply.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s claim of unfair dismissal on the grounds of Trade Union membership/activity as per Section 6 (2) (a) Unfair Dismissals Act, 1997 – 2015, is not well founded and as a result his claim fails.

Unfair Dismissals Act

Trade Union membership/activity