Complainant

Respondent

Anonymised Parties

Security Officer

Facilities Management Company

Representatives

Aoife McDonnell , Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040302-001

08/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040302-002

08/10/2020

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

CA-00035918-001

29/04/2020

The complainant commenced employment with the respondent as a security officer on 13/07/2019.   His rate of pay is €11.65 per hour which is in line with the relevant Employment Regulation Order. A new SOP was put in place which prohibited the consumption of hot food and drinks on-board or in the concourse area.  This was necessary as the client organisation had issued an instruction which put a “ban” on hot drinks for all employees and members of the public.  This required the respondent to amend its policies and procedures to align with this instruction.  All employees are required to sign the amended SOP.  The complainant refused to sign this.  The respondent conducted an investigation and at a follow up disciplinary hearing a First Written Warning was issued.  This was appealed by the complainant, but no appeal was heard due to scheduling and availability issues.

The complainant also submits a claim that he was deducted some overtime over five pay periods and despite his attempts to have this rectified.

The complainant also alleges that he was subjected to bullying by his supervisors and managers.

The complainant is employed as a security officer with the respondent.  He is assigned to a public transport organisation which is a client of the respondent.  There were issues with the provision of personal protective equipment (PPE) such as gloves and hand gel.  This occurred on 18/03/2020.  When he raised these concerns with his supervisor and noted the HSE instructions in relation to this, the supervisor responded in what the complainant describes as a rude manner.  He raised his concerns with HR and he was not provided with basic PPE until 11/04/2020.

On 12/02/2020 the complainant was asked to sign a new SOP which said that no hot drinks were allowed when on duty.  He refused to do so as he needs to be able to drink water to hydrate. He is unable to drink cold water when the weather is cold as it makes him sick.  He was invited to an investigation meeting on 04/03/2020.  He refused to sign a note of the meeting as he was unable to read the writing and was not provided with a typed copy.  He was on sick leave from 27/03/2020 until 06/04/2020 and he attributes this illness to drinking cold water on duty.  Due to his symptoms he was required to self-isolate.  He attended a disciplinary meeting on 14/04/2020 and was accompanied by a work colleague.  He was asked to sign notes but did not do so as he could not read them and was not provided with a typed copy since.  He was issued with a First Written Warning in line with the respondent’s disciplinary procedure on 30th April 2020.  The complainant lodged an appeal on 04/05/2020 but no appeal was heard as there were difficulties organising a work colleague due to annual leave, general availability and travel restrictions.

The complainant also had issues in relation to his pay and a summary of his calculations was provided at the hearing.  In summary he was deducted a total of €522.76 and when the respondent did a reconciliation he was paid €319.26.  He now claims that he is due €203.50.

The respondent is an international facilities company who provide a range of support services to businesses.  The complainant commenced full-time employment as a Security Officer with the respondent on 13/07/2015.  The complainant is assigned to provide security to a public transport company who is a client.  With the advent of Covid-19 there were issues nationally with the supply of hand gel and gloves.  However, these were provided, as soon as they were sourced they were made available.

The respondent has a comprehensive bullying and harassment in place.   The complainant is aware of these policies and procedures and they are readily accessible to him.  The complainant has not utilised the procedures internally and it would be inappropriate for the WRC to hear such a case in these circumstances. The respondent cited a number of case law which highlights the need to utilise internal grievance procedures.  The respondent cannot be held accountable for any alleged acts of bullying or harassment, as the respondent was never made aware any issue and therefore could not investigate to determine whether such an allegation can be upheld.

The dispute over the first written warning arises from the refusal to sign a revised SOP in relation to the client organisation prohibition of the consumption of food and drinks on-board or in any concourse area.  The respondent submits that it had to comply with this request and it is standard practice that their employees sign off on SOP’s.  This was a reasonable request as it is known that the consumption of hot drinks in a tight space can be extremely dangerous and a risk to health and safety.  The respondent was reluctant to initiate a disciplinary process but due to the health and safety concerns, but it was the complainant’s continued refusal to sign the SOP that resulted in a decision to issue a first written warning. 

The complainant also made a complaint in relation to the payment of wages.  The respondent has undertaken a comprehensive examination of the complainant’s pay records on several occasions.  The respondent refutes the claim under this Act in its entirety and submits that arising from these examinations the complainant has been overpaid €18.64.  All documentation in relation to these calculations were provided at the hearing. 

The complainant also submitted a claim that he was not paid the proper shift allowance.  It appears that the complainant believes that he is due this on occasions when he completes a second shift on an overtime basis and on the same night.  This allowance is covered by an Employment Regulation Order (ERO) and the one under which the claimant works is the 2006 ERO.  This allowance is paid when an employee works more than three hours between 21.00 and 07.00 but can only be paid once per night.

CA-00040302-001:  The complainant had an issue with the night shift allowances.  This arose when he undertook an additional shift on an overtime basis and was not paid the night rate for this shift.  There was clarification provided at the hearing that the relevant ERO [SI no 500 of 2006 (Security ERO)]. This ERO [Part II; s.1 (iv)] states that “an unsocial hours premium will be paid for hours worked between 21.00 hours and 07.00 hours provided the worker works at least 3 hours in that period.”  This allowance cannot be paid twice for the same shift.  I accept the respondent’s explanation of the shift payment arrangements and their application to the industry.  I find that this complaint is not well founded.

CA-00040302-002:   The complainant provided calculations in relation to monies which he claims he is owed.  These relate to five different pay periods and include amounts related to Sunday allowance, overtime and overtime not included in holiday pay.  The total amount due is €522.76 and when additional payments were made on three occasions these totalled €319.26.  The final amount now left short is €203.50. The respondent’s payroll manager provided the hearing with a detailed breakdown of the queries raised by the complainant and analysed his payments in conjunction with his roster.  These included payments for basic hours, night allowance, Sunday allowance, Bank Holiday and Christmas period.  The outcome of this review is that the complainant has been overpaid by €18.64. 

The complainant claims that he was not properly paid.  The Payment of Wages Act, 1991, s. 5(6) outlines:

“Where (a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that it properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or (b) none of the wages that are properly payable to an employee by an employer on any occasion (after making deductions as aforesaid) are paid to the employee, then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

The complainant has not proven that any of the wages due to him were not paid and no evidence was produced to show that a deduction as defined in section 5 of the Act was made.  On the contrary, the respondent has provided evidence that not only were the wages properly paid but that subsequent reviews also confirmed this.  At the hearing the respondent’s payroll manager provided an accomplished understanding of the ERO, the roster system and the payroll structure which applies to the complainant.  I find that this complaint is not well founded.

CA-00035918-001: The employee raised several industrial relations issues in dispute.  I will deal with these separately.   The first related to allegation of bullying and harassment.  I have reviewed the employer’s Bullying and Harassment at work policy.  This policy outlines the definitions and provides a detailed guide to how complaints can be addressed.  I accept that the employee did not raise any formal complaint under this policy.  In Conway v Ulster Bank UD747/1981 the Tribunal held that “…the appellant did not act reasonably in resigning without first having substantially utilized the grievance procedure to remedy her complaints.  An elaborate grievance procedure existed but the appellant did not use it.”  I therefore find that I cannot hear this aspect of the dispute.

The employee also raised issues in relation to the supply of PPE.  I note that at the time there were global issues around the supply of these materials.  I note the employer’s Health and Safety policy and the commitment to ensuring the safety of clients, colleagues and other stakeholders.  The policy actively encourages employees to identify risks and systems to improve health and safety matters.  The employee did not use the available internal procedures to express his concerns and I make no recommendation other than that these should be utilised in the first instance.

The employee submits issues in relation to the first written warning.  Having reviewed the extensive documentation, the process followed by the employer and the evidence adduced at the hearing, I find it difficult to comprehend the employee’s argument that drinking cold water in cold weather would make him sick and, on this principle, he was refusing to sign an SOP which was required in view of the change in policy of the client organisation.  The employer confirmed in evidence that there was no issue with warm or lukewarm liquids.  It was made precisely clear that this SOP was required to be signed by all employees.  I find that the employee failed to provide any medical confirmation to support his belief.  I also find that the employer made several attempts, including virtual, to hold a hearing but the employee did not take up these options. 

The employer submitted that the First Written Warning is due to expire at end of April 2021.  The employee submitted his complaint to the WRC on 29/04/2020 and I accept that the employer made several genuine attempts to organise an appeal for the employee.  I am recommending that the employer organise an appeal hearing within one month of the date of this decision.

Given the clarification provided by the employer at the hearing, I also recommend that the employee reconsider his position in relation to his continued refusal to sign the revised SOP and in the event that any issues arise in relation to this that he submits his concerns promptly through the grievance procedure.

CA-00040302-001: I do not uphold this complaint.

CA-00040302-002: I do not uphold this complaint.

CA-00035917-001: I recommend that the employer organises an appeal hearing within one month of the date of this decision.  I also recommend that the employee utilise these policies in the event of any issue arising the future and to do so in line with the timelines outlined in these policies. Finally, I recommend that the employee reconsider his position in relation to signing the revised SOP in the light of the clarification provided at the hearing.

Payment of Wages.  Deduction.  Written Warning