Complainant

Respondent

Parties

Suldan  Shamsudin

G4s Secure Solutions (Ire) Limited

Representatives

Vivian Cullen SIPTU-Trade Union

Neil Fitzpatrick HRBP

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-00043861-001

30/04/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00043861-002

30/04/2021

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

CA-00043861-003

30/04/2021

The Complainant has worked as a security guard for the Respondent security agency since July 2016.

In November 2020 the Complainant was assigned to a client site monitoring a side gate. There was a torrential downpour. The Complainant was not issued with heavy duty rain gear so was required to retreat to his car. Shortly thereafter one of the client’s managers came out and challenged him on this. The Complainant stated to this client manager that he would not make an Irish person stand out in the rain. The manager became upset at this suggestion and the Complainant was sent home.

The Respondent investigated matters and tried to have the Complainant reinstated at the client site but the client refused. This potentially impacted on the Complainant’s earnings for a number of weeks.

The Complainant brought three complaints to the Workplace Relations Commission arising out of this incident. Each dated the 30th of April 2021.

The first is a complaint under the payment of wages act alleging that he was suspended for two weeks and told that he would be paid. But was ultimately not paid. Instead, the Respondent required him to take annual leave for this period.

The second is a complaint under the Safety Health and Welfare at Work Act alleging that he was penalised for complaining that it was not reasonable to require him to stand outside in torrential rain beside an active construction site.  This penalisation first took the form of him immediately being suspended and then being given less favourable sites, limited rosters and had been severely financially disadvantaged.

The third is a complaint under the Employment Equality Acts. This alleges that the Complainant had raised a complaint of discrimination with the client’s manager arising from the same incident above and following this complaint he was suspended. Since this suspension he was given less favourable sites, limited rosters and had been severely financially disadvantaged.

The Complainant attended the hearing and gave evidence under oath. He was represented by Mr Vivian Cullen of SIPTU. The Respondent attended and was represented by Niall Fitzpatrick, HRBP. Ms Doroth Szydlowska gave evidence on their behalf.

The Complainant’s Union official made written and oral submissions. The Complainant attended the hearing and gave evidence under Oath.

He outlined that prior to the incident 2nd of November 2020 he had a problem with his usual shift. He had trouble with Mr Coogan who was his roster manager with G4S and during this time he was not getting his normal shifts.

He believes that the other Irish who worked with him was still getting their normal rosters.

It turned out his normal site had been taken over by another security company. He was never told this. He was put on a series of temporary sites. One of which was the client site on which the dispute arose. He was never told that he would be monitoring a post outside. When he arrived to the site he was initially told he could go into his car if it started raining.

There was a weather warning in place that day. Rain and high winds started up and as such he went back to his car.

The client site manager saw him in his car and came over to tell him to get out.  The Complainant pointed out that he didn’t believe that this person would say this to an Irish person.  The client manager became offended and asked him was he calling him racist.

He was later told that he needed to go home and was suspended with pay while the Respondent investigated the matter.  

An investigation was held and then a meeting with management and his shop steward.  He was told that he didn’t do anything wrong by retreating into his car however he was also told that he shouldn’t have made the accusation about racial bias without first involving the Respondent.

He was told that he couldn’t go back to that client site.

He was then without work for a few weeks. He applied for a MUT (“Make Up Time”) payment but G4s declined this on the basis that he had refused two shifts.

One of these was in the IFSC, it was a night shift, during the winter. He would have been required to work outside without access to a toilet or shelter or canteen. When this became apparent, he declined the shift.

He had 6 weeks of no income and incurred financial loss of €3000-€3600

His job was his only source of income, he suffered both financially and psychologically.

The Complainant was cross examined by Mr Fitzpatrick.

Mr Fitzpatrick made written and oral submissions.

He explained the basis for Make Up Time, this is to guarantee a set amount of hours (24) in a week.

 The Complainant’s MUT request was rejected after he walked off site on two occasions.  While one was in the IFSC, there was access to shelter and break facilities available to him. A person cannot refuse shifts and receive MUT.

Generally it is not appropriate to sit in a car during a security shift.  Rain gear should have been sourced from the client supervisor.

They had difficulty processing the Complainant’s concern with the client site manager as he was not their employee.

Ultimately, the client had the right to request that an individual to be removed from the site.

Doroth Szydlowska gave evidence under affirmation. She has previously worked on the client site for a number of years.

She gave evidence of her experience of the client site and that it concerned a very multicultural employer with roughly half the workforce being international. The outdoor post the Complainant covered on the day in question had been covered by an Irishman for a number of years.

Payment of Wages Act

The Respondent argues that they gave the Complainant the benefit of paid suspension for two days, the 5th and 6th of November. When the client made clear that the Complaint could not return they then sought to offer him other shifts. The Complainant disputes this. He was told that he was getting paid suspension but was put on annual leave.

The Respondent has provided the Complainant’s roster for that period which clarifies matters somewhat. On Monday the 2nd of November the Complainant was on the client site but sent home following his dispute with the client manager. He was paid for the full day. The next day the Complainant was sent for first aid training. The next three days were treated as paid suspension.

The entirety of the following week were treated as annual leave. The Complainant has provided evidence that he never requested this and believed that it was paid suspension. The Respondent has provided no evidence to contradict this claim.

On the basis of the evidence before me I find in favour of the Complainant. Specifically that was told he was under paid suspension and that he did not ask for annual leave.  While this claim may have been better brought under the Organisation of Working Time Act I am of the view that it would be reasonable of me to treat the week when he was paid annual leave rather than paid suspension as an unlawful deduction of salary and direct the Respondent to pay him the salary owing for that week which was erroneously treated as annual leave. That is €560.

I note the wider MUT claim submitted by the Complainant which is contained in his submissions. This was not contained within his complaint form to the WRC and as such is not properly before me.

Penalisation Claims – Safety Health and Welfare at Work Act and Employment Equality Act

There are two core aspects to the Complainants claims of penalisation, discrimination and victimisation.

The first concerns the initial dispute with the client’s site manager, and the implications of that. That is that he was sent home and missed out on work and wages while he awaited a new site. The Complainant’s oral evidence of this interaction with the site manager is uncontested.

The second concerns an allegation that there was ongoing penalisation, discrimination and victimisation by the Respondent arising from the complainant having raised these issues with the client supervisor. The Respondent rejects this claim entirely.

On review of the Safety, Health and Welfare at Work Act it is clear to me that the appropriate respondent for the purposes of the complainant's initial complaint, that is the interaction that occurred on the client's site, would be the client themselves.

I refer specifically to the definition of employer contained within the act. This includes: a person (other than an employee of that person) under whose control and direction an employee works.

While the Respondent had some supervisors on-site it is clear that the client management controlled the site and are the ones who sent the Complainant away after him raising the issue regarding of continuing to remain outside in heavy rain.

As such if this constituted an act of penalisation under Section 27 it would be for the client to answer.

This position regarding the Employment Equality Act is similar. Section 2 of the Act defines contract of employment to include:

(ii) an individual agrees with a person carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 to do or perform personally any work or service for another person (whether or not the other person is a party to the contract).

whether the contract is express or implied and, if express, whether oral or written;

Employment agency is further defined in the Protection of Employees (Temporary Agency Work) Act to mean: a person (including a temporary work agency) engaged in an economic activity who employs an individual under a contract of employment by virtue of which the individual may be assigned to work for, and under the direction and supervision of, a person other than the first-mentioned person;

On review of the above it I am of the view that the client is liable for the alleged penalisation, discrimination and victimisation of the Complainant, at least as it relates to the actions of the site manager in sending the Complainant away after he alleged that he was being discriminated against.

I note the Respondent’s evidence that they tried to convince the client to reverse the decision but it was ultimately out of their control.

The second aspect of alleged penalisation and victimisation is that there was ongoing ill treatment of the Complainant by the Respondent due to him having raised these issues with the client site manager.

I am not satisfied that the Complainant has made his case in this regard. Firstly, by his own evidence he had recently lost his regular shift due to the Respondent having lost a contract on the site he normally worked. This occurred shortly before the events of November 2022. As such it is not surprising that he went through a period of receiving sporadic shifts and I cannot see how these were related to his allegations of racism or by refusing to work in unsafe conditions. In general, I found the Complainant’s evidence regarding the aftermath of the November 2020 incident vague and difficult to reconcile with the roster and financial records provided by the Respondent.    

As such I do not find that the Respondent subjected the Complainant to either victimisation or discrimination as prohibited under the Employment Equality Acts or penalisation as prohibited by the Safety, Health and Welfare at Work Act.

CA-00043861-001

I find that the complaint is well founded and direct the Respondent to pay the Complainant €560.

CA-00043861-002

I find that the complaint is not well founded.

CA-00043861-003

I find that the complaint is not well founded.