Complainant

Respondent

Anonymised Parties

A security guard

A provider of security services

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00014940-003

11/10/2017

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

CA-00014940-004

11/10/2017

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

CA-00014940-005

11/10/2017

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

CA-00014940-006

11/10/2017

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

CA-00014940-007

11/10/2017

The complainant is a security guard and claims underpayment of wages, penalisation and contraventions of the Organisation of Working Time Act. The respondent denies the claims.

The complainant commenced employment with the respondent on the 16th September 2015. He is a security guard and was assigned by the respondent to provide security services at client sites. This included being stationed at building sites and he mainly worked at night.

The complainant outlined that he received a text from the respondent on the 18th March 2017 to say that his roster at a named site was cancelled. He was informed that the respondent would provide a full explanation for this on the following Monday. The complainant attended a meeting and asked a named manager for an explanation. He said he would later phone the complainant, but this never happened. The complainant further tried contacting the manager. The meeting was held because of an incident at the site where someone failed to close a gate.

The complainant outlined that he next worked for the respondent on the 7th April 2017 and was assigned to a different site. He was never to work again at the site he was initially assigned to work on the 18th March 2017. The complainant said that the respondent had misled him in cancelling this roster and not saying why. For three weeks, the complainant was not given an explanation and was not assigned work. This was only resolved when the complainant sought assistance from the Citizens Information Centre.

The complainant stated that his claim was not getting the full roster between April and September 2017. The complainant said that the respondent sought to assign him hours elsewhere but could not do so as his roster was “blocked”. He was advised to contact a named manager. He had earned €540 per week at the previous client site, working 50 or 60 hours per week. The complainant outlined that since April 2017, his hours have been reduced. Only half of his shifts were restored to him. He submitted that this amounted to dismissal. He had previously worked 48 to 60 hours per week over four to six days. After April 2017, there were some weeks where he was not allocated any hours of work and other weeks where he worked 45 hours.

The complainant said that he was not paid the overtime pay he was due, for example he was due overtime on the 4th August 2017 when he worked 69 hours. Overtime should be paid after 42 hours of work, but none was paid at any stage.

On the 30th August 2017, the complainant was invited to an investigation meeting. He received the respondent’s email but not the posted letter. He answered the allegations. This arose following a wall being damaged at a client site. The complainant provided his explanation and refused to sign the respondent’s note as it was inaccurate. He was later called to a disciplinary meeting, but never received the warning. This warning was for six months so would have expired in April 2018. Something similar had occurred in January 2017 when he was issued with a warning, but the warning was never sent to him.

The complainant said that his roster was cancelled in September 2017 and he was called to an investigation meeting. He described this as a punishment. At this stage, the complainant was working nine hours a week and could not survive. He, therefore, asked for his holiday pay. He was allocated 53 hours in the next two weeks.

Commenting on the pay slip for the 29th September 2017, the complainant said that the overtime pay at 1.5 times was not paid (an amount of €607.75 for 110 hours of overtime), despite this being stated on the payslip. He received a different pay slip at the time and the lower pay is reflected in his bank account records.

The complainant said that he tried to raise his roster issues via the grievance procedure. The respondent never answered his emails. While the respondent HR manager said that he had not exhausted the grievance procedure, his complaints were not processed.

The complainant said that he was sent to work without proper equipment, citing a named client site. This was a night shift where he was not provided with protective equipment or shelter. He was left in the rain without access to bathroom facilities. He was expected to sit in a colleague’s car, but the colleague refused to allow him sit in his car. This occurred in November 2017. He did not work the three further days at this site and was paid for one day.

The complainant denied the respondent’s assertion that he was refusing shifts. He had an arrangement to work weekends with another security firm.

The complainant outlined that he requested annual leave on two occasions in 2017 but did not get approval from the respondent. There was a similar problem in March 2018. The process was that the complainant would email a designated email address but never received a response. He then submitted the request to the roster department.

The complainant said that one period of annual leave was delayed until the end of January 2017 because others had been approved for leave. In March 2018, the complainant requested a block of annual leave of one month but was informed that he could take a maximum period of two weeks. The respondent informed him that the annual leave was not approved, but he was later paid for the time off.

The complainant outlined that he had to work every single public holiday as others were facilitated with days off. This included Christmas Day 2017 and New Year’s Day 2018. He had wanted days off in Christmas 2017 but had to work on these days.

In reply to the respondent, the complainant said that the respondent had offered some additional hours after September 2017. This offer was made a few hours before the start of the shift in question. The complainant was assigned less than 24 hours per week over several weeks. There was the shortfall in April 2017 where he was paid for 3.32 public holiday days. He was assigned 12 hours in September 2017 and there were shortfalls in the months of October 2017 and January and February 2018.

The complainant said that he emailed grievances to the respondent. He offered to submit them to the Workplace Relations Commission following this adjudication.

In submissions, the respondent outlined that it paid for breaks and they were provided through the standard operating procedures available at each client site. Breaks were also recorded.

The respondent outlined that the complainant was asked to attend an investigation meeting and then a disciplinary meeting. He was offered the opportunity to have representation at the latter meeting. He was asked to sign the minutes after each meeting.

The respondent submitted that hours would only have been taken off the complainant had he refused the shifts or if the client requested his removal. The ERO requires that the complainant be given three days’ notice of their roster, subject to exceptional circumstances.

The respondent submitted “historical” pay slips for the period of the 7th April 2017 to the 30th March 2018. There are 49 pay slips. It exhibits the payslip for the 29th September 2017 which includes payment of €607.75 for 110 hours of overtime at time and a half. The respondent submits that it paid the amounts stated in payslip 39 in subsequent payments. The manual payments were made for €178.44 on the 27th September 2017 and €285.23 on the 29th September 2017 and €140.89 on the 20th June 2018. The respondent submitted screen shots relating to these payments.

The respondent submitted client invoice sheets, indicating the site, start and finish times and the number of hours worked by the complainant. This shows that the complainant generally worked nights, often over 12-hour shifts.

The respondent submits the documents relating to the disciplinary hearing of the 8th September 2017. The respondent issued the complainant with a written warning to last for six months. This arose following an incident on the 15th August 2017 where the complainant shook a vending machine.

The respondent submits emails regarding occasions where the complainant “refused” hours. They relate to times in late 2017 and early 2018 when the complainant was rostered for hours on Friday and Saturdays when he worked for another employer. There is correspondence regarding whether the complainant obtained approval for annual leave between the 15th March and the 4th April 2018.

The HR manager outlined that she could not see a shortfall in pay anywhere. The practice was that overtime is paid where the employee works over 48 hours, calculated over a six-week reference period. She outlined that there had been a recent WRC inspection and no issues raised regarding this practice. She said that the complainant was paid in line with the Employment Regulation Order for the security industry. She said that the complainant had found other work, so it retained him on the minimum of 24 hours per week.

The HR Manager outlined that its contracts of employment are not site specific. It assigns security work according to changing contracts. She said that it won and also lost contracts. It had lost the security contract where the complainant had been assigned to work in April 2017. The site where the complainant was assigned night work was temporary cover. She said that there were occasions where the security guard would have to use their car or alternative, nearby resources. The respondent submitted that the assignment instructions for the site referred to facilities being available at another, nearby site.

The HR Manager said that she conducted the September 2017 investigation. The complainant was later informed that a formal warning issued. This included the right to appeal. She said that the respondent did not have a copy of the warning on file. She said offered regular hours to the complainant and did not receive any grievance from him.

The HR Manager outlined after September 2017, the complainant was not fully available as required by his contract. He could not, therefore, be allocated full hours. The respondent could not guarantee specific hours and had to go below the ERO minimum as the complainant was not fully flexible.

A feature of this case is that the documentation is unclear and inconsistent. There are contradictory pay slips for the same pay periods (one set emailed to the complainant and another set generated from historical pay records).

The complainant worked variable hours on different days of the week at several sites. He was paid per hour. His hours of work and whether they attracted premium pay varied each week. The absence of this information causes the employee (and in this case, the adjudicator) to pore over the pay slips and the “payroll summary” documents to attempt to ascertain what was owed and what was paid. This is, obviously, unsatisfactory and is likely to prompt queries whether the employee received the pay they were entitled to.

A further unsatisfactory element is that the warning appears to have disappeared. While it submitted the minutes of the disciplinary meetings, the respondent was not able to produce the warning issued. The complainant said that he attended the meetings but never received the warning afterwards.

CA-00014940-003

This is a complaint of victimisation pursuant to the Employment Equality Act. The complainant outlined that he lost hours because he raised issues with pay.

Victimisation in the Employment Equality Act is defined as adverse treatment in reaction to raising a complaint of discrimination. In this case, the complainant raises issues regarding rates of pay and other workplace issues, as opposed to any claim of discriminatory treatment on any of the grounds set out in the Employment Equality Act (e.g. race, nationality etc).

It follows that the complainant has not established a prima facie case of a contravention of the Employment Equality Act as there is no allegation that the treatment was in retaliation to raising an equality issue.

CA-00014940-004

This is a dispute pursuant to the Industrial Relations Act. The complainant asserts that he was bullied by respondent managers and that an unfounded allegation of bullying was made against him. The complainant asserts that he emailed grievances to the respondent, which were unanswered.

As exhibited in the emails supplied by the respondent, its employees must raise issues via specific email addresses, for example HR@respondent or holidays@respondent. The complainant outlined that he raised grievances with the respondent, but they were not acknowledged or investigated. The respondent denied receiving the grievances. There was, therefore, a complete conflict between the parties as to what happened.

In order to decide this matter, I gave the complainant time after the second adjudication hearing to submit this documentation. No such correspondence has been supplied to the Workplace Relations Commission in the time since the hearing. It, therefore, follows that I cannot make a recommendation in the complainant’s favour as I do not have evidence of any failure on the respondent’s side to investigate a grievance.

CA-00014940-005

This is a complaint pursuant to the Organisation of Working Time Act regarding not getting daily rest breaks. The provision of security services is exempted from sections 11, 12, 13 and 16 of the Organisation of Working Time Act (per S.I. 21/1998). Section 6(2) requires employers to provide equivalent rest breaks or compensatory arrangements to exempted employees.

The Workplace Relations Commission has issued a Code of Practice on compensatory rest periods and appropriate protection, such as enhanced environmental conditions. The relevant Employment Regulation Order provides that security workers should receive equivalent rest breaks to those provided by sections 11, 12 and 13.

The complainant asserts that he was not provided with equivalent rest breaks or compensatory arrangements, while the respondent submitted that facilities were provided on site. The only evidence of a failure presented in this case was the site where the complainant was rostered on three occasions (the 9th, 10th and 16th September 2017). This was a building site, which the respondent stated was short-term cover. The respondent accepted that there was no facility available on site and guards were expected to use their private car. It also pointed to the Assignment Instructions for the site, which refer to facilities being available nearby at another site.

The complainant stated that it was raining heavily on the first night he was assigned to work at this site. He was to work with a colleague, who refused to allow the complainant to sit in his car. Understandably, he declined to work in these circumstances, and it appears that he was paid annual leave in lieu for the 9th and 10th September (pay slip for week 38). It does not appear that he was paid for the 16th September, but this is the week with the most problematic pay slips (i.e. 110 hours of overtime stated as paid in one pay slip but omitted from the pay slip emailed to the complainant). It is clear from the other documents that the client was invoiced for the three nights of work.

The obligation to provide of an equivalent rest break or compensatory arrangements is set out in section 6(2) of the Organisation of Working Time Act. A contravention of this provision is justiciable per section 27 of the Act.

I find that there was a breach of section 6(2) of the Act in failing to provide compensatory arrangements such as enhanced environmental conditions when the complainant was assigned to a site which did not have any shelter or facilities. While I have regard to the Assignment Instructions and facilities at another site, I note the distance between the two sites and using the facilities mentioned would require the guard to leave the site he was assigned to. I also note that the Assignment Instructions date from April 2018, so post-date the complainant’s involvement with the site.

While it appears that the complainant was paid annual leave for this time, this cannot be stated with any certitude as the pay slips are opaque. Even if he was paid for two of the shifts, there was still a breach of the Act as the Organisation of Working Time Act is at its core a health and safety measure. Taking these circumstances into account, I award redress of €1,000.

CA-00014940-006

This is a dispute pursuant to the Industrial Relations Act. This dispute relates to the investigation and disciplinary processes that occurred in August and September 2017. This related to damage to a wall allegedly caused by the complainant shaking a vending machine.

The respondent outlined that it decided that the allegation was well-founded, and a warning was to issue. It stated that the documents the complainant was asked to sign were minutes. The complainant denied the allegation, stating that he only shook the machine as his purchase was stuck. He denied damaging the wall. He said that many other colleagues had also shaken the machine. He was dissatisfied with having to sign documents at the meetings.

While I note that the complainant was dissatisfied with the process and the outcome, I do not make a recommendation on this matter. The respondent investigated the allegation made to it by a client. It carried out an investigation and a disciplinary process. It followed the appropriate policies and reached its conclusion. The warning is now expired but seems never to have actually been issued to the complainant. Of course, he cannot be criticised for not appealing the outcome as he never received the warning.

CA-00014940-007

This is a complaint pursuant to the Organisation of Working Time Act. The complaint relates to the period of April to September 2017 when the complainant did not receive his full allocation of hours. He claims redress per section 18 of the Act.

It is certainly the case that the complainant’s last shift at a site where he had worked for many years was the 16th March 2017. His next shift was on the 7th April 2017 at a different site. In the meantime, the complainant raised why he lost all his hours and engaged the help of the Citizens Information Centre. They emailed on his behalf on the 28th March 2017 and he was assigned hours the following day. No explanation is provided why the hours were removed from the complainant. The respondent refers to other times when the complainant declined work, but this clearly related to weekend work when the complainant worked elsewhere.

The documentary evidence, for example the pay roll summary, indicates that the complainant incurred a period of no hours between the 16th March and the 7th April 2017. Apart from this period of three weeks, the documentation indicates that he was allocated hours in accordance with his contract of employment and the ERO.

It follows that there is a contravention of the Act for the three-week period. I award redress of €1,500.

CA-00014940-003

Pursuant to the Employment Equality Act, I decide that the complainant was not discriminated against or victimised by the respondent.

CA-00014940-004

I do not make a recommendation in the complainant’s favour with regard to this dispute per the Industrial Relations Act.

CA-00014940-005

I decide that this complaint pursuant to the Organisation of Working Time Act is well-founded and the respondent shall pay to the complainant redress of €1,000. This is an award for a contravention of the Act and is not an award of remuneration or arrears of remuneration.

CA-00014940-006

I do not make a recommendation in the complainant’s favour with regard to this dispute per the Industrial Relations Act.

CA-00014940-007

I decide that this complaint pursuant to the Organisation of Working Time Act is well-founded and the respondent shall pay to the complainant redress of €1,500. This is an award for a contravention of the Act and is not an award of remuneration or arrears of remuneration.

Security guard / Employment Regulation Order

Organisation of Working Time Act / exempted employment / compensatory rest periods