Worker

Respondent

Anonymised Parties

A Worker

A Limited Company

Representatives

Cathal Mooney John Battles & Co. Solicitors

Richard Lee Baily Homan Smyth McVeigh

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041306-001

30/11/2020

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

CA-00041306-002

30/11/2020

The Worker was employed at the material time and remains employed under a contract of employment with the Respondent dated 11th November 2018. The worker provides security for the Respondent’s clients.

The Workers duties include:

a)           Conducting Patrols.

b)           Watching and monitoring security/CCTV cameras.

c)           In the event that there is noise from an apartment to attend deal with same.

d)           To give out post if it is requested by an apartment tenant/owner.

The Worker’s normal rostered days/shifts are from Thursday to Sunday with the Worker working 8 hours per day/shift.

The Worker’s case arises out of an alleged incident that took place on the 6th August 2020 while the Worker was working in the course of his employment as a Security officer/Static Guard in C. W. Village. The Worker was rostered to work the 6th, 7th, 8th and 9th of August 2020.

The Worker logged in for his shift. As he began to review the security monitors, the Worker saw a lady in the gym in the Village. She was exercising.

The Worker was trying to contact his colleague in T.S. Village on the security radio but was unable to get an answer. He contacted his colleague by telephone and as he did, at approximately 6.15pm he saw the same lady walk down the side of the laundry room on the monitor and she then crossed over the road and went into the main offices of P.  

At 6.30pm, the Worker commenced a patrol of the village. At Approximately 6.50pm, he received a call from Mr. SB, Operations Manager with the Respondent and he asked of him, if  he had made a particular statement in relation to Mr. EK on the telephone earlier. Mr. EK is the founder of P. The Worker was advised that Mr. EK had lodged a complaint about him by email and he was accused of having said, about him, “ Fuck EK.” The Worker advised Mr. SB that the allegation was false.

When the Worker return to the cabin, he contacted Mr. SB again and queried him about the email that he had received from Mr.EK i.e. the alleged complaint. The Worker was allowed to complete that and his remaining shifts as scheduled until Sunday the 9th August 2020.

On Wednesday, the 12th August 2020 the Worker following a phone call NH, Operations Director received a follow up email. The email clearly alleged that Senior Management from P. allegedly overheard the Worker using a negative tone and degrading P. The Worker was clearly advised that the incident “needs to be investigated” and the Worker was further advised that “while this is happening you will need to be removed from the P locations.”

The Worker was asked to send a full a report of the incident. He did that.

Subsequently, in a telephone call with Mr. SB, the Worker requested a copy of the email complaint. His request was denied. Then Mr SB stated that the complaint came by way of telephone call and not e-mail as first advised.

The Worker was invited to engage in a call on the 21st August 2020 in relation to the incident.  Ms. CV of Human Resources and Mr. NH for the Respondent were on the call.  The Worker was informed that P requested that the worker would no longer be rostered to work on their sites.

On the 24th August 2020, the Worker received an email from Ms. CV with a notice from P stating:

“ It is our opinion that [ the worker] is not suitable candidate as a static guard in the S.V environment and we would prefer that he not be rostered in C.W Village. Regards Mr AM. “

The email correspondence and notice are exhibited herewith at Exhibit “DB4.”

On the 27th August 2020, the Worker emailed Ms. CV to appeal the decision to remove him and requesting a full formal appeal hearing. The Worker had requested the following:

·       The Worker’s email had stated that the decision was arrived at without regard to fairness of procedures and natural justice and without any formal investigation taking place.

·       The Worker requested copies of any witness statements, a copy of the incident report form and full and substantial details of the allegations made because the Worker had never actually seen the complaint lodged against him.

·       The Worker had also requested a copy of his contract and the grievance and disciplinary procedures.

·       The Worker also advised that he had not received any shifts at all for that week i.e. 27th August 2020 to 30th August 2020 and required immediate reinstatement.

On the 31st August 2020, the Worker received an email from Mr. NH. This e-mail referred to a “previous issues” and which clearly outlined and referred to the decision to remove him from C.W. Village. This was done despite Mr. NH deeming it not to be a disciplinary matter.

The Worker was advised that he would still be scheduled for other clients but not for P sites.

The request from P was enforced as a disciplinary sanction by the Respondent The very nature of being disciplined under disciplinary procedures is that there is a consequence to an action or an event occurring.

The Respondent had stated that the Worker was “entitled” to seek a review of the decision. If there was no disciplinary procedure, then why would the Worker be entitled to seek a review?

The notice from Mr. AN also stated that he would prefer that “xx not be rostered in C.W. Village.” The notice did not refer to TV.  Yet the decision was made by the Respondent to remove him from C.V and T.V.

The Worker despite requesting an appeal was not given one.

XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX

PREVIOUS ISSUE – JULY 2020.

On the 16th day of July 2020, the Worker was rostered to work at C.W. Upon starting his shift at 6.00pm, the Worker noticed that the Security Television Monitor was tied back against the wall. The Worker brought this to the attention of Mr. SB. The difficulty is that with the monitor tied back against the wall the Worker would not be able to carry out his functions properly and he was concerned.

On the 18th July 2020, the Worker was rostered to work from 7.00pm to 1.00am. The Worker received another call from Mr. SB. The monitor was raised again and the Worker was advised by Mr. SB that he may have to get Dublin involved i.e. the Worker took this to mean getting Human Resources or Management in head office involved.  

On Monday the 20th July 2020, the Worker spoke with Mr. SB again. Mr. SB advised that he was going to speak to Mr. AM of PMI in relation to the monitor. Mr. SB in fact came to the Worker’s house on the same date and advised him that Mr. AM had advised that if The Worker touched the security tv monitor that he would be served with a law suit. The Worker stated this was fine and asked for the roster. He was told by Mr. SB that he was still working on this. Mr. SB left.

The Worker was given one shift that week on the 22nd July 2020 at T.V

On the 28th July 2020, the Worker had a call via zoom with Mr. NH and Ms. CK to discuss a PMI Customer Satisfaction report of the 27th July 2020 completed by Mr. AM.  The Worker had not seen this report.  The zoom call surrounded the Worker’s performance. The Worker had not been given shifts for C.W and T.V. however subsequent to this meeting, Mr. NH confirmed to the Worker that he was happy to reinstate him. It was only after the alleged incident of the 6th August 2020, when the Worker sought and requested a copy of the Customer Satisfaction Report that this was furnished to him by the Respondent i.e. he had never received a copy of this previously.

However, the Customer satisfaction report and the meeting of the 28th July 2020 were relied upon in the decision to discipline the Worker arising from the alleged incident of the 6th August 2020.

Subsequent, to the decision to remove the Worker from C.W and T.V.s, the Worker was given some shifts in the dogtracks in the South of the Country as well as the Travel lodge in Co. Limerick but he has not worked in C.W or T.V.. The Worker has in fact commenced working with JD Express Couriers Limited as a driver and works Monday to Friday. A copy of the report and email from Ms. CV of the 28th July 2020 following on from the meeting are exhibited herewith at Exhibit “DB8”. 

The complainant was first employed by the respondent on the 11th November 2018. His contract of employment states “your normal place of work may be in Limerick however, it is a condition of employment that you may be assigned to work in a variety of locations, which may fluctuate depending on client requirements” . When the worker signed his contract, he was given a copy of the Respondent’s grievance complaints and disciplinary policies.

By e-mail dated 27th July 2020, the Respondent’s manager contacted the Operations Director regarding a complaint about a member of staff at the C.W site. The manager noted that he would talk to the worker about it.  Later, on the 27th the worker emailed the his Operation Director in relation to the complaint. Then the Respondent received a customer satisfaction report from the client at the C.W. site which outlined a number of issues regarding the worker’s conduct. The report stated “general observations would be that staff member does not wear company uniform all the time. Constantly observed by residents using the phone while on duty. This staff worker may be suited working in a different environment”. On 28th July a meeting was held with the worked in relation to the customer satisfaction report.

In August a further complaint was received. The worker allegedly used degrading language when talking about member of staff. He was told he would be removed from the client’s sites pending investigation. He was asked for a report on the event.  On 21st August he was informed that he was being removed from the C.W. site. On the 24th the worker requested all the documentation in relation to the complaint. HR sent him a document setting out the nature of the complaint.  On 27th August the worker emailed requesting an Appeal of the decision to no longer roster him at the C.W. site.  BY email dated 31st August the worker was informed that his removal from the C.W site was not a disciplinary matter.

The Respondent states that the evidence suggests that it sought full engagement with the worker with a view to resolving the issues. The respondent denies that he was dismissed from his employment and demonstrates that he was offered shifts in October, November and December. The Respondent also submits that the matters should be dismissed on the grounds that the worker did not invoke the grievance procedure with a view to resolving the issues.

I have carefully considered the submission filed by both parties together with the supporting documentation and the evidence adduced during the hearing.

In summary, the worker was the subject of two separate complaints. Both complaints were subjected to an investigation, of sorts. The parties disagreed as to whether what actions were taken amounted to a proper investigation. In any event, neither complaint was the subject of a disciplinary hearing or sanction, due to the fact that the Respondent did not feel that it was warranted in the circumstances.  However, arising out of those complaints, the Respondent’s client, who is the owner and operator of the C.W site and the T.V.  site directed that the worker should not be allowed to work on the C.W. The Respondent acted on the instructions of their client and removed him from both sites.  The Respondent did not inform Mr. AM that they had carried out an investigation in relation to both complaints and concluded that neither warrant progression to a disciplinary  hearing. The difficulty in this matter is that the workers contract provides for flexibility in relation to location. That is normal in these types of contracts. However, it is clear from the evidence that the worker was removed from the site as a form of sanction arising out the complaints made and not because his contract so provided.  In circumstances where the Respondent deemed the matters not of the type that should progress to disciplinary hearing, it is damaging to the workers reputation to sanction him because of those complaints solely because the Respondent’s client so directed and in the absence of any process wherein he could defend the allegations.  The Respondent should have informed their client that they had investigated the matter and that they had concluded that the issues didn’t warrant disciplinary action. They did not do that. Furthermore, I note that worker requested that he be allowed to appeal the decision to remove him from the site. He was not granted his appeal. 

In all of the circumstances, I recommend the following: ( I note that both claims are identical)

1.       The Respondent pay to the worker the sum of €2,500.00 as a form of compensation for the  reputational damaged, referred to above,  caused.  

2.       That the Respondent recommence rostering the worker at the C.W.and T.V. sites with immediate effect.   

3.       If the Respondent’s client takes issue with no. 2 above, the Respondent is to write to their client setting out that following investigation in relation to both complaints that they concluded that neither matter warranted progression to a disciplinary hearing.

CA 41306 -01 and CA 41306 -02  (both claims are identical)

1.         The Respondent pay to the worker the sum of €2,500.00 as a form of compensation for the  reputational damaged, referred to above,  caused. 

2.         That the Respondent recommence rostering the worker at the C.W.and T.V. sites with immediate effect.  

3.         If the Respondent’s client takes issue with no. 2 above, the Respondent is to write to their client setting out that following investigation in relation to both complaints that they concluded that neither matter warranted progression to a disciplinary hearing.