Complainant

Respondent

Anonymised Parties

A Security Officer

A Provider of Security Services

Representatives

  Self -represented

Valerie Morrison, Peninsula

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-00044065-001

13/05/2021

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

CA-00044065-002

21/05/2021

The complainant submits that he was unfairly dismissed by the respondent on 1st of February 2021.  He submitted a claim under the Payment of Wages Act on 13/05/2021 and a claim of Unfair dismissal on 21/05/2021.

The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public.     However, as provided for in Section 41 (13) and (14) of the Workplace Relations Act 2015 (revised), as the Adjudication officer, following an application by the complainant at the hearing, I have decided that the proceedings should be held otherwise than in public.  I have determined that due to the existence of special circumstances, that is the disclosure of personal information in respect of the complainant, information that would identify the parties in relation to whom the decision is made should not be published by the Workplace Relations Commission. 

The parties were also advised that the Workplace Relations (Miscellaneous Provisions) Act 2021 grants Adjudication Officers the power to administer an oath or affirmation.  All participants who gave evidence were sworn in.   The parties were given an opportunity to cross examine the evidence.

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

CA-00044065-002

21/05/2021

The Complainant who was employed by the respondent as a security guard submits that in January 2021, he received an email from the respondent confirming that security in a named shop in Kilrush was being cut back resulting in the complainant being placed on unpaid leave until the situation was to be reviewed in March of 21.   The complainant submits that the respondent advised him that this was due to Covid and that he could claim the Covid PUP payment but the complainant disputes that Covid was the reason for the layoff.

The complainant received no communication of any sort in March confirming what was to happen with the position.   He contacted his employer to query what was happening as he was eager to get back to work & they confirmed that the date for review was being pushed out to April.   The complainant submits that he contacted his employer again in April and was advised that there was no decision made on the position in Kilrush however he was told that there was a position available in Limerick.

The complainant replied by email dated 6th May stating that he wanted to stay within his own county and that travelling to Limerick was not an option for him due to the journey length & considering that there were other stores in Clare he could work in and was willing to work in.

In addition, the complainant submits that in May of this year a job opportunity was posted on the lndeed website advertising the same position as the one he had previously been working in in Kilrush.   The complainant states that he does not understand why he wasn’t offered his job back if security was required instead of advertising it.    The complainant submits s that he has since taken up new employment but is bitterly disappointed in how he was treated by his former employer.

He submits s that he had a great relationship with the staff customers in the store where he had worked prior to and up to March 2021 and really enjoyed his work there & was sorry to leave so abruptly.

The respondent submits s that on the 27 January 2021 Mr G, on behalf of the Respondent, informed the Complainant, via email of the same date, that he was being placed on temporary layoff due to the Covid 19 pandemic, a change in the business of the company and in line with government guidelines issued at the time.

The Complainant was informed that this temporary layoff would be in place until March 31, 2021, or an earlier date if the client reinstated the hours. The Respondents also provided details of how the Complainant could avail of the Pandemic Unemployment Payment (“PUP”) during this time.  Prior to the COVID outbreak, the Respondent had been working for a client of the Respondents in a business in Kilrush, Co Clare.   On foot of the effects of the Pandemic and the Government Guidelines, this client implemented a temporary measure and withdrew their needs for a security officer in line with their budgetary issues.   

The Respondent, communicated to the Complainant that this may be a temporary measure and it would be reviewed after the 22 March 2021.

The Complainant contacted the Respondent on the 8 March and requested an update on the matter, the Respondent responded on the 9 March and outlined that as the Government date for reopening retail had been pushed forward from March 5, they were not in a position to finalise a decision in respect of the service to the client in Kilrush.    The Respondent further explained that they had tendered for contracts in a means of offering alternative employment if the client failed to engage the business.   However, the Respondent was restricted by the Government decisions on the opening of retail business.  

The Complainant again requested an updated on the 24 March with the Respondent confirming that he would not be in a position to provide an update until such time as the Government reopens non-essential retail.

 The Complainant within an email dated 29 March, requested redundancy from the Respondent. The Respondent informed the Complainant that they were awaiting the decision of the Government to reopen retail and informed him that his role was not redundant, and he was to avail of the PUP in the interim.

The Complainant informed the Respondent on foot of this email that he would seek legal advice.    Mr G, on foot of this email encouraged the Complainant to seek legal advice if he so wished but also took the time to explain that, as they have additional clients with business in the Complainants area of residence, he would have options available for employment once the existing lockdown lifted.    On the 6 May 2021, the Respondent offered the Complainant a vacancy in Limerick. While he acknowledged it was a 30-minute drive to the business, he also informed the Complainant the Respondent company would pay a travel allowance.      The Complainant refused this offer stating he wished to work within his county.

The respondent submits that it was reasonable to offer to complainant a role in Limerick as his contract contained a mobility clause which stated, “you agree to work at any of the Company’s contract assignments or sites within reasonable travelling distance from your home”.

On foot of this condition, the Respondents set out, in an email dated 6 May, the distance from the Complainants home to his original employment location was 22.8 miles and the new location was 27 miles.    Furthermore, Mr G revisited the original travel allowance offered and extended this to 1.5 hours paid travel to ensure the Complainant would not be “out of pocket”.     The Complainant on foot of this email responded stating “As I said I am not interested in traveling outside my county”.

 The Respondents responded to the Complainants email and informed them that their obligation was to offer employment within a reasonable travel distance from his home. The Respondents further explained that the role proposed fell within the reasonable travel distance and that they had agreed to pay a travel allowance, an offer, which was beyond their requirements.

The Respondents within this email also addressed the Complainants previous request in relation to Redundancy and outlined that as he is being offered the same work albeit in a different location, his role was not redundant. The Complainant again reiterated that he was “not interested travelling to Limerick for employment”. In addition, he proceeded to mention the WRC.

The Respondent on the 23 June 2021, again reached out to the Complainant and offered him another position in Ennis Co Clare, a role again the Complainant refused.

The Respondent further communicated with the Complainant and informed him that they “have lots of work in Limerick if you were prepared to go there”.    No response was received from the Complainant.

 Unknown to the Respondent at this time but clearly set out in the Complainants claim papers, he was no longer available to work for the Respondents as he was engaged in alternative employment from 24 April 2021.

 It should be noted herein that the Complainant’s period of lay off ceased on the 6 May 2021, at which point work was available, but for reasons outside of the Respondent’s control, the Complainant did not return to work.

The Complainant has alleged that the Respondent advertised a role similar to his own. The Respondent wholly refutes this and is in no way aware of a similar role advertised by the Respondent Company.

Subsequently, the Complainant has referred the within complaint to the Workplace Relations Commissions, pursuant to Section 8 of the Unfair Dismissals Act 1977, alleging he was unfairly dismissed on 1 February 2021. 34. The Respondent wholly refutes the allegations made within the complaint.

Dismissal is defined in the Unfair Dismissals Act 1977 (as amended) as: – “dismissal”, in relation to an employee, means

— (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer……

The Complainant referred the within complaint on the 21st of May 2021 claiming that he had been    unfairly dismissed by the respondent on the 1st of February 2021. 

The respondent denies that there was any dismissal and submits that the complainant was put on temporary layoff in February 2021 when the client store had indicated that it no longer required the respondent’s security services.  Following this the complainant remained on the Covid PUP payment for ten weeks after which he was offered alternative employment by the respondent within a reasonable distance of his home which he refused, and it later emerged that he was not in a position to accept these offers as he had already secured employment with a different employer.     The respondent submits that the complainant was well aware that he had not been dismissed as he continued to engage with the respondent in the following months and requested redundancy from them on 29th of March 2021 at a time when all non-essential retail was in a government induced Covid lockdown.

In addition, it is submitted that the Complainant was fully aware that he was on a lay-off due to the COVID-19 pandemic.   Furthermore, the Respondent clearly set out within the email dated 27 January, that this lay off extended to March 31, 2021, or to an earlier date of hours of employment were available.

The respondent refers to the Adjudication Officer’s Decision in Seamus Rellis -v- PML Enterprises Ltd ADJ-00031579, where it was held that: “Across the country, regardless of the industry they worked in, employees who were laid off and who were eligible to claim the pandemic unemployment payment were ceased on their employer’s payroll. This is not the same as dismissal.”

The respondent submits that the Complainant was not dismissed on the 1 February 2021, nor did he deem himself to be dismissed on this date.

The complainant advised the hearing that he was notified by the respondent on 1st of February that the security job in the Kilrush store was no longer available and that things would be further clarified in March.   He stated that matters were not clarified in March and so he claimed the Covid PUP payment.

 The Complainant in an email dated 29 March, requested redundancy from the Respondents following which the Respondents advised him that they were awaiting the decision of the Government to reopen retail and informed him that his role was not redundant, and he was to avail of the PUP in the interim.    

The Complainant informed the Respondent on foot of this email that he would seek legal advice.    Mr G, on foot of this email encouraged the Complainant to seek legal advice if he so wished but also took the time to explain that, as they have additional clients with business in the Complainants area of residence, he would have options available for employment once the existing lockdown lifted.    On the 6 May 2021, the Respondent offered the Complainant a vacancy in Limerick. While he acknowledged it was a 30-minute drive to the business, he also informed the Complainant the Respondent company would pay a travel allowance.      The Complainant refused this offer stating that he wished to work within his county.

The respondent pointed to the fact that the complainants contract contained a mobility clause and   a condition of his employment his contract states “you agree to work at any of the Company’s contract assignments or sites within reasonable travelling distance from your home”.

 On foot of this condition, the Respondents set out, in an email dated 6 May, the distance from the Complainants home to his original employment location was 22.8 miles and the new location was 27 miles.  Furthermore, Mr G of the respondent revisited the original travel allowance and extended this to 1.5 hours paid travel to ensure the Complainant would not be “out of pocket”.     The Complainant on foot of this email responded stating “As I said I am not interested in traveling outside my county”.

 The Respondents responded to the Complainants email and informed them that their obligation was to offer employment within reasonable travel distance from his home. The Respondents further explained that the role proposed fell within the reasonable travel distance and they had agreed to pay a travel allowance, an offer, which was beyond their requirements.

The Respondents within this email also addressed the Complainants previous request in relation to Redundancy and outlined that as he is being offered the same work albeit in a different location, his role was not redundant. The Complainant again reiterated that he was “not interested travelling to Limerick for employment”. In addition, he proceeded to mention the WRC.

The Respondent on the 23 June 2021, again reached out to the Complainant and offered him another position in Ennis Co Clare, a role again the Complainant refused.

The Respondent further communicated with the Complainant and informed him that they “have lots of work in Limerick if you were prepared to go there”. No response was received from the Complainant.

 Unknown to the Respondent at that time it is now clear that the complainant was not available to work for the Respondent when it had offered him alternatives as he was already engaged in employment with a different employer from 24 April 2021.

The respondent submits that the Complainant’s period of lay off ceased on the 6 May 2021, at which point work was available, but for reasons outside of the Respondent’s control, namely the fact of his having obtained alternative employment, the Complainant did not return to work.

The complainant in this case has also submitted that his position was redundant and that he was entitled to redundancy in respect of same and in support of this states that his position in a named shop in Kilrush was no longer available and so he claims he was entitled to redundancy.  The complainant has submitted his claim under the Unfair Dismissals Act.   I note that the respondent is a provider of security services and provides such services to business across the area.    The respondent advised the hearing that it was a term of the complainant’s contract that he agreed to ‘work at any of the Company’s contract assignments or sites within reasonable travelling distance from his home’.  The respondent at the hearing stated that the complainant was on lay off due to covid and could not be offered work in the Kilrush store as they were no longer availing of the respondent’s services.  In addition, the respondent advised the hearing that it had offered the complainant two alternatives the first in Limerick which he refused due to travel time despite being offered compensation for his travel time and the second in Ennis which he refused citing that he wished to stay in his own county.

The complainant at the hearing clarified that his reason for not wanting to work in the Ennis shop was due to having had a previous bad experience with a customer who had threatened and followed him. 

The respondent stated that it had not been aware that this was the complainant’s reason for refusing the Ennis job although Mr. G at the hearing stated that he did recall a conversation about an incident way back but he stated that he did not realise that it was an ongoing concern for the complainant and the complainant did not cite this as a reason for refusing the Ennis offer of employment as his reply to the offer simply stated that he wished to work in his own county.

In addition, the respondent added that the complainant in any event was not in a position to accept either the Limerick or the Ennis option when offered as he had already secured alternative employment before the respondents offer of either alternative and the respondent states that he was thus not in a position to consider these offers. 

The complainant at the hearing agreed that he had secured alternative employment with a different employer on 24th of April 2021.

The complainant in his submissions had stated that he saw the security job in the named Kilrush store advertised on 11th of May 2021 but that it had not been offered to him.  The respondent at the hearing clarified that this advertisement was for the Ennis store where the complainant had been offered and refused the role.   The respondent stated that the Kilrush store did not renew the security contract with them after Covid and that the advertisement in question should have said Ennis and not Kilrush as they did not have any security position to offer in the Kilrush store.  He stated that the location stated in the advertisement was an error and it should have said Ennis.  In addition, the respondent also pointed to the fact that the advertisement in question post-dated the complainant’s commencement of employment in another job which he had commenced on 24th of April 2021.

I note that the complainant in this case has made no claim of constructive dismissal and that no grievance had been lodged by the complainant with the respondent.

 I am satisfied from the totality of the evidence adduced and having regard to all of the circumstances of this case that the complainant was not unfairly dismissed by the respondent.   I addition, I am satisfied that the complainant’s position as security guard with the respondent provider of security services was not made redundant but that the position was still available, albeit in a different location which was not outside of a reasonable distance from his home.    It is also clear from the evidence adduced that the complainant had secured alternative employment and so was not in a position to accept the offers of alternative employment made by the respondent.

Having regard to the totality of the evidence adduced here I am satisfied that the complainant was not unfairly dismissed by the respondent and accordingly I declare this claim to be not well founded.

Having regard to the totality of the evidence adduced here I am satisfied that the complainant was not unfairly dismissed by the respondent and accordingly I declare this claim to be not well founded

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

CA-00044065-001

13/05/2021

This claim was withdrawn at the hearing.

This claim was withdrawn at the hearing and no evidence was adduced to substantiate this claim, accordingly, I declare this claim to be not well-founded.