Complainant

Respondent

Parties

Wasay  Mohammed Abdul

C & C Security Ltd

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00039292-001

21/08/2020

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

CA-00039292-002

21/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00039292-003

21/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00039292-004

21/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00039292-005

21/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00039292-006

21/08/2020

The Complainant was employed by the Respondent as a Security Officer from February 2016, until the termination of his employment in August 2020.  The Complainant submitted the following complaints:

• Organisation of Working Time Act, 1997 - claiming that he did not receive his statutory entitlement to breaks during his working day
• Unfair Dismissals Act - alleging that he was unfairly dismissed,
• Redundancy Payments Act, 1967 - claiming that he did not receive any redundancy payment
• Minimum Notice & Terms of Employment Act, 1973 - alleging that he did not receive his statutory minimum period of notice or payment in lieu thereof, that he did not receive all his rights during the period of notice and that he did not receive minimum notice of termination of his contract of employment from his employer.

The Respondent is a security company, providing security services to a range of clients and on a nationwide basis. The Respondent denied the allegations in relation to breaches of the Organisation of Working Time Act, and contended the Complainant’s dismissal resulted from the requirement to remove him from a particular site at the request of the relevant client and subsequent challenges in placing him in an alternative location due to the impact of restrictions arising from the Covid 19 pandemic on their business.  The Respondent acknowledged that there were payments outstanding to the Complainant as at the date of the hearing.

CA- 00039292 - 001         Organisation of Working Time Act, 1997

The Complainant submitted that throughout the period of his employment he did not receive breaks in the course of his working day.

CA-00039292 - 002          Unfair Dismissals Act

The Complainant submitted that he worked for the Respondent from February 2016, that he had an exemplary attendance record and that he did the job to the best of his ability. He submitted that on 1st July 2020 he received an email from the General Manager stating that he was removing him from the site where he had been working since February 2016. The Complainant confirmed that he had been given no prior warning in relation to any matter prior to the receipt of the email.

The Complainant submitted that the email mentioned that there were some issues which he could clarify and further stated that a meeting would be arranged within the next few days to discuss the matter.  The email also outlined that alternative work would be found for the Complainant if any should become available. The Complainant submitted that he responded to that email, advising that he would be happy to meet to discuss matters and asking when the General Manager would be in the Dublin office.  He confirmed that he received a response from the General Manager to say that he would be in touch during the week to set up the meeting.

The Complainant submitted that a number of weeks went by without any further contact from the Respondent and that on 16th July 2020 he made contact with the Respondent to remind him that he had not heard from him in over two weeks. In his submission the Complainant confirmed that he received a reply from the Respondent advising that he was on leave that week and that a staff member from HR would be in touch to arrange a meeting the following week. He also confirmed that he did receive an email from the HR staff member on the same day stating that the General Manager had been covering shifts that week and was now away, and that he would make follow up contact to arrange a meeting upon his return on 20th July 2020.

The Complainant submitted that when he hadn’t heard from the Respondent on 20th July, he sent a text in the afternoon enquiring about arrangements for the meeting.  He further submitted that he received a reply confirming a meeting in the Head Office in Kilkenny on 23rd July 2020.  The Complainant submitted that he initially agreed to those meeting arrangements, but that upon reflection he realised that he could not afford to attend due to his changed financial circumstance i.e., being off work, without pay and not having access to social welfare as he was still considered to be employed.

The Complainant submitted that he made contact with the Respondent and asked him to meet in Dublin instead and that the Respondent advised that he would not be in Dublin until the following week.  He further submitted that the Respondent advised that he would contact him on 27th July to agree arrangements for a Dublin meeting.  The Complainant submitted, that, once again, he had no follow up contact from the Respondent on the agreed date, so he initiated contact later that afternoon, asking the Respondent to confirm arrangements for a meeting in Dublin.  He further submitted that although the Respondent replied to say that he would make contact the following day to agree arrangements, no further contact was made until 6th August.  The Complainant submitted that on that date he received an email from the Respondent confirming arrangements for a meeting on 11th August in Dublin. 

In his submission, the Complainant stated that at the meeting on 11th August the Respondent outlined the issues of concern and that he provided an explanation and advised that he was unwell on the night in question. He submitted that, at the conclusion of the meeting, despite his explanation, the Respondent confirmed that he had no alternative work to offer at that time and that he couldn’t see that he would have any alternative work to offer within the foreseeable future.  The Complainant submitted that he sought to clarify his employment status, particularly in relation to access to social welfare payments.  He submitted that the Respondent, by way of response to his enquiries, said he would issue a letter to clarify matters for social welfare. 

The Respondent submitted that on 12th August he received an email from the Respondent with a letter attaching which stated that his last day of work had been 29th June and that his employment had now ceased.   The letter also stated that the Respondent was terminating the Complainant’s employment as he could not provide the Complainant with further employment. 

In all of these circumstances, the Complaint submitted, his dismissal was unfair.

CA-00039292 - 003          Redundancy Payments Act, 1967

The Complainant submitted that he commenced employment with the Respondent in February 2016 and that his employment was terminated by the Respondent on 1st July 2020.  The reason given for this termination was that there were issues raised by the client site and that, as a result, the Respondent advised that he was removing the Complainant from the site.  The Complainant submitted that, at a meeting in August 2020, the Respondent confirmed that he had no other work available at that time.  The Complainant submitted that he had concerns that the Respondent had no intention of finding him alternative work when he checked his revenue account and saw that the Respondent had ceased his employment on 4th August.  He stated that at the meeting which took place in August there was no mention of his employment being terminated but that he was misled with “false promises of work”.  He further submitted that on 12th August he received written confirmation from the Respondent that stated, “we will have to terminate your employment until the situation improves.”

CA-00039292-004            Minimum Notice & Terms of Employment Act, 1973

The Complainant submitted that on 12th August 2020 he received an email from the Respondent which stated, “we will have to terminate your employment until the situation improves.”  He further submitted that he was entitled to receive two weeks’ pay in lieu of notice and that he did not receive such a payment.

CA-00039292-005             Minimum Notice & Terms of Employment Act, 1973

No further submission was made by the Complainant.  This complaint is a duplicate of CA- 00039292-004.

CA-00039292-006             Minimum Notice & Terms of Employment Act, 1973

No further submission was made by the Complainant.  This complaint is a duplicate of CA- 00039292-004.

CA- 00039292 - 001         Organisation of Working Time Act, 1997

The Respondent submitted that in accordance with the security ERO Section C2, the security industry is exempt from breaks where a site has to be manned by security at all times.  He submitted that when the Complainant was in employment and located on the specific client site, that he was made aware that employees should have opportunities for lunch and a break while the site was not busy.  The Respondent submitted that a small kitchen unit was located at the security office where employees had access to a microwave, kettle, fridge etc. and where the staff can partake of food whenever they choose. The Respondent submitted a copy of the ERO to support his position.

CA-00039292 - 002          Unfair Dismissals Act

The Respondent submitted that the Complainant was employed by him from 1st February 206, working as a security officer on a client site.  He submitted that on 6th March 2020 the Complainant submitted his resignation, however, on 16th March the Complainant contacted the Respondent to withdraw his resignation due to Covid 19.  The Respondent submitted that he accepted the withdrawal and placed the Complainant back of the roster for full time employment and to continue in his existing role.

The Respondent submitted that since that date the Complainant had not shown the same commitment to his role nor efficiency in how he carried out the role, that he was not completing his duties while on shift.  The Respondent submitted that the client brought a number of concerns to attention as follows:

28th March – the Complainant sent an email to his colleagues stating that they did not need to receive any paperwork from incoming drivers, nor did they need to stamp such paperwork.  This duty was a specific requirement of the client contract and no discussion took place with the Respondent in advance of issuing this instruction.

13th April – the Respondent was notified by another security officer that the CCTV system and phone lines were down over the previous weekend while the Complainant was on duty.  These systems failures were not reported to either the Respondent or the client company and could have resulted in security breaches on the site

16th April – Client made contact to advise that one of the trailers had frozen and was full of product that had to be destroyed, at significant cost to the client.  This had occurred while the Complainant was on duty and one of the duties of the security officer was to check the correct functioning of the fans in the trailers.  The Respondent stated that when he questioned the Complainant about this, he responded by saying that he did not see the trailer and that he had only completed one patrol on site on the night in question. The Respondent submitted that these temperature checks should be carried out every hour.

5th May – the Respondent received a call from the client raising concerns that the barriers to the site were being left open and pointing out that this was not the procedure which they had relayed to the security staff on numerous occasions.  The client raised particular safety concerns about this, specifically in the context of Covid 19.

5th May – On the same call the client raised concerns that the Covid -19 self-declaration forms were not being completed correctly when the Complainant was on shift, raising further safety concerns.

12th June – The Respondent made contact with the Complainant seeking clarification as to whether he was completing the documentation log in relation to trailer movement on the site. The Respondent had been receiving complaints from the client that these were not being completed when the Complainant was on duty.  No response was received from the Complainant. The Respondent emailed the Complainant again on 15th June seeking the required information, but no response was received.

The Respondent submitted that he raised all of the above issues with the Complainant on each occasion and explained that the client was taking note of the errors and omissions.  Despite this, the Respondent submitted that the Complainant did not change his behaviour or his attitude on the client site.  The Respondent acknowledged, in his submission, that he had not issued a formal warning to the Complainant as he had hoped that the Complainant would improve but that ultimately the client advised that they did not want him on their site anymore due to the number and seriousness of the issues that had arisen. The Respondent submitted that he sent details of the client issues to the Complainant, placed him off duty and confirmed that he would meet with him to discuss the matters.

In his submission the Respondent outlined that his workload had increased significantly due to Covid and that this caused him particular difficulties in setting up that meeting.  He clarified that he had scheduled a meeting for 23rd July in Kilkenny but that the Complainant had been unable to attend. As a result, he was unable to meet the Complainant at the Dublin office until 11th August. The Respondent submitted that at that meeting he outlined the Complainants raised by the client and advised the Complainant that the client did not want him on site anymore as a consequence of those issues.  The Respondent further submitted that he confirmed to the Complainant that he had no other work to offer him at that time and that he would be in touch if other work arose on other sites and that, in the interim, he would provide him with a letter for social welfare.

The Respondent submitted that, in the context of the discussion that took place at that meeting, and as the Complainant had failed to carry out his duties and responsibilities, he believed the Complainant had not been unfairly dismissed.

CA-00039292 -003           Redundancy Payments Act, 1967

The Respondent submitted that the Complainant was not made redundant and therefore was not entitled to redundancy payment.

CA-00039292-004            Minimum Notice & Terms of Employment Act, 1973

The Respondent submitted that the client had insisted that the Complainant be removed from the sit as he was not completing his duties as a security officer on site.  The Respondent submitted that, as a consequence, the Complainant was removed from the site and that at the meeting which was held in August he explained to the Complainant why he was being removed and that he was given the opportunity to respond to the issues raised.  The Respondent further submitted that he had advised the Complainant that he would keep him on the payroll and that if other work became available, he would contact him. 

In his submission the Respondent advised that the Complainant had stated that he wanted a letter for social welfare, that he explained to the Complainant that this could be arranged but that it would mean that he was not available for any further work.  The Respondent submitted that the Complainant agreed to this, and that it was in that context that the letter of termination was issued.  The Respondent submitted that the Complainant was not entitled to minimum notice in those circumstances.

CA-00039292-005             Minimum Notice & Terms of Employment Act, 1973

This complaint is a duplicate of CA- 00039292-004.

CA-00039292-006             Minimum Notice & Terms of Employment Act, 1973

This complaint is a duplicate of CA- 00039292-004.

CA- 00039292 - 001         Organisation of Working Time Act, 1997

At the hearing the Complainant further elaborated on his position, stating that he worked a 12-hour shift, commencing at 6 am and that there was no time for a break up to 4 pm. He stated that the site where he was assigned was a busy site and that he had been told to make time in between activities to take a break to eat.  He also stated that when he needed to use the bathroom he had to wait until activity at the entrance reduced. He stated that throughout his 12-hour shift he had no official break and that he wasn’t able to go to the bathroom for more than a minute without “someone honking” at the barrier to either enter or exit the site, and that if he was delayed this would lead to traffic disruption on the main street.  He also stated that he had raised this matter on several occasions with management, that he had sought either relief staff to cover breaks or an additional staff member on shift.  He stated that management had refused to hire additional staff and had not listened to or acted upon any suggestions put forward.

At the hearing the Respondent confirmed that the Complainant worked a 12-hour shift, that there were facilities on site in or adjacent to the security hut for meal breaks and toilet breaks.  The Respondent acknowledged that there were times when queues would form at the barrier and that this would need to be managed before taking breaks and availing of toilet facilities.  The Respondent stated that it was a matter of good sense if an employee had an urgent requirement to use the bathroom facility, then they could do so but that, in general, they were expected to deal with visitors to the site first.  The Respondent drew attention to the ERO and clarified that this provided for an exemption for the security industry from the break provisions of the Act. 

The Respondent further advised that as the roster was covered by a 12-hour shift, it would be necessary to employ an additional staff member and reduce the shifts to 8 hours in order to facilitate the change envisaged by the Complainant and that such a proposal was not financially viable for the company or for the staff covering the roster.

The Employment Regulation Order (Security Industry) 2017 states that “the workers to whom this order refers will, pursuant to section 4(6) of the Organisation Of Working Time Act 197, be exempt by agreement from the provisions of sections 11, 12 and 13 of that Act.”

The ERO, however, goes on to state that “each employer to whom this order applies shall ensure that each worker shall have a rest period and break which can be regarded as equivalent to those provided for in section 11,12 and 13 of the Act.” 

I noted the evidence of the Respondent which demonstrated that he had complied with the requirements of the ERO to have appropriate facilities in place for taking breaks and that it was his expectation that such breaks would be taken at quieter times.  I also noted the evidence of the Complainant in relation to the level of activity on the site and the challenges of taking toilet breaks in these circumstances.  I noted that the Complainant did not provide any evidence of having raised complaints in relation to this issue while in employment.

I noted that the ERO outlined above does provide an exemption to those working in the security from the terms of section 11, 12 and 13 of the Act. In considering whether or not the Respondent ensured that a break was provided to the Complainant, which could be regarded as equivalent to those provided for in section 11, 12 and 13, I gave consideration to the facilities available on site.  I noted those facilities included a reasonably well-equipped tea room and adjacent toilet facilities and on balance I am persuaded, that in the course of a 12-hour shift, it is not credible that an employee would have no opportunity to avail of the facilities provided. 

In all of these circumstances I find that this complaint is not well founded.

CA-00039292 - 002          Unfair Dismissals Act

The Complainant’s evidence at hearing was consistent with his written submission and he clarified the matter further.  He stated that the Respondent had terminated his employment on the revenue system in advance of the meeting held in August 2020.  He clarified his understanding on leaving that meeting in August, that there was no alternative work available for him at that time but that when such work became available he would be contacted.  He reiterated his position that termination of employment was never mentioned at the meeting, however, he acknowledged that he had requested the Respondent to provide him with correspondence for social welfare to clarify the position as he was working for himself, but this was not going particularly well due to Covid restrictions.

The Respondent evidence at hearing was also consistent with his submission and he clarified further that the Complainant had resigned initially in March but had later retracted his resignation because of Covid 19 restrictions.  He clarified also the delays in meeting with the Complainant and called an administrative staff member, as witness in relation to the employment termination on the revenue system.

The Administative staff member confirmed that an error had occurred in completing the Complainant’s pay in July 2020 and that he had been paid for 3 days annual leave to cover the weekend when he had been placed off duty.  She confirmed that she was not aware of the full circumstances at the time.  She further confirmed that the Complainant was paid for his public holiday entitlement in August.

While there is some dispute between the parties as to the reason for the termination of the Complainant’s employment, there is no dispute between the parties in relation to the following points:

·         that the client had raised a number of concerns regarding the Complainant’s performance of his security duties and that the Complainant was contacted by email by the Respondent and placed off duty on 1st July 2020

·         that he received payment of wages up to and including 1st July, as well as payment of 3 days annual leave to cover the following weekend shifts

·         that a meeting was to be arranged between the parties to discuss the client concerns but for various reasons this meeting did not take place until 11th August 2020 

·         that at the meeting on 11th August the client concerns were discussed and that a discussion also took place in relation to the Complainant’s access to social welfare payment

·         that on 12th August the Respondent issued a letter to the Complainant confirming that as a result of an accumulation of issues he was removed from the client site, that in the current climate the Respondent could not provide the Complainant with further employment and that the Respondent would have to terminate the Complainant’s employment “until the situation improves.”

In response to questions from this adjudicator the Respondent confirmed that he did not dismiss the Complainant because of the performance issues raised and that if Covid was not an issue he would have been able to place the Complainant in an alternative position.  He confirmed that he terminated the employment in order that the Complainant could access social welfare payments and that this had been requested by the Complainant.  The Complainant was emphatic that he had asked about access to social welfare payments but that it had never been made clear to him that his employment would be terminated in order to access this payment.

The motivation behind the termination of the Complainant’s employment remained in dispute at the hearing.  However, it is clear that:

·         there were issues of concern regarding his performance

·         Covid 19 restricted the ability of the Respondent to provide an alternative location of work for the Complainant.

It is also clear that it was open to the Respondent to have placed the Complainant on PUP, in circumstances where by his own evidence, he would have been in a position to have provided alternative employment but for the impact of Covid 19.

Based on the above I find that the Complainant was unfairly dismissed and that his complaint is well founded.

CA-00039292 - 003          Redundancy Payments Act, 1967

In assessing the case of unfair dismissal above I noted that the Respondent, in both his submission and his oral evidence at hearing confirmed that the client had raised performance issues relating to the Complainant and that at that time he did not have alternative work to offer to the Complainant.  He also stated in his oral evidence that he would normally have been in a position to offer alternative work but for the circumstances arising from Covid 19 restrictions.

Section 7 (2) (1) (a) of the Redundancy Payments Act states that “ the fact that his employer has ceased, or intend to cease, to carry on the business for which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.”

In the circumstances described by both parties I noted that the work on the client site did not cease or diminish but rather that the Complainant could not attend that site at the express request of the client.  I noted also in the job description, signed by the Complainant and provided by the Respondent as part of his submission, that the Complainant’s contract was not to a specific site but rather was “to work at client sites throughout the South East”. In these circumstances it would have been entirely appropriate for the Complainant to be transferred to work on another site.  It is clear, from the evidence of the Respondent that the absence of alternative work was a temporary situation and not a permanent reduction or absence of work.

In all these circumstances I find that the termination of the Complainant’s employment did not constitute a redundancy.

CA-00039292-004            Minimum Notice & Terms of Employment Act, 1973

The Respondent confirmed in his submission and in oral evidence at the hearing that pay in lieu of notice was not made as the Complainant was not dismissed.

However, I have found that the termination of the Complainant’s employment did constitute a dismissal and, in these circumstances,, payment in lieu of notice should have been applied.  I noted that the Complainant’s contract of employment, in keeping with his statutory entitlement provided for 2 weeks pay in lieu of notice and I find that he was entitled to receive this payment.

CA-00039292-005             Minimum Notice & Terms of Employment Act, 1973

This complaint is a duplicate of CA- 00039292-004.

CA-00039292-006             Minimum Notice & Terms of Employment Act, 1973

This complaint is a duplicate of CA- 00039292-004.

CA- 00039292 - 001         Organisation of Working Time Act, 1997

I have found that the Respondent is exempt from the provisions of Sections 11,12 and 13 of the Act based on Employment Regulation Order (Security Industry) 2017 pursuant to section 4(6) of the Organisation of Working Time Act 197,  and that the Respondent did have sufficient facilities and arrangements in place to ensure that employees received treatment, which could be regarded as equivalent to those provided for in section 11, 12 and 13.

It is therefore my decision that this complaint is not well founded.

CA-00039292 - 002          Unfair Dismissals Act

I have found that it was open to the Respondent to have placed the Complainant on PUP, in circumstances where by his own evidence, he would have been in a position to have provided alternative employment to the Complainant but for the impact of Covid 19. In these circumstances I have found that the Complainant was unfairly dismissed and that his complaint is well founded.

I noted that the Complainant’s last day of paid employment was 1st July and that he was paid for an addition 4 days (3 annual leave and the August public holiday).  I noted that he commenced working on a self employed basis from 9th July , however, he was unable to provide specific weekly/monthly earnings at the time of the hearing.  He did, however, confirm that his earnings were exceptionally low.

Taking all of the above into account it is my decision that the Respondent should pay the amount of €5,292 for loss of earnings arising from the dismissal.

CA-00039292 - 003          Redundancy Payments Act, 1967

I have found that the termination of the Complainant’s employment did not constitute a redundancy.  In these circumstances it is my decision that this complaint is not well founded.

CA-00039292-004            Minimum Notice & Terms of Employment Act, 1973

I have found that the termination of the Complainant’s employment did constitute a dismissal, and, in these circumstances, payment in lieu of notice should have been applied.  It is my decision, therefore that the Complainant should be paid 2 weeks’ pay in lieu of notice by the Respondent, in accordance with his statutory and contractual entitlement.

CA-00039292-005             Minimum Notice & Terms of Employment Act, 1973

This complaint is a duplicate of CA- 00039292-004. There was only one complaint under the Minimum Notice & Terms of Employment Act and my decision in relation to that complaint is outlined under CA-00039292-004 above.

CA-00039292-006             Minimum Notice & Terms of Employment Act, 1973

This complaint is a duplicate of CA- 00039292-004. There was only one complaint under the Minimum Notice & Terms of Employment Act and my decision in relation to that complaint is outlined under CA-00039292-004 above.

Organisation of working time, unfair dismissal, redundancy, minimum notice