Complainant

Respondent

Anonymised Parties

A Security Officer

A Security Firm

Representatives

Branigan and Matthews Solicitors

Warren Parkes Solicitors

Act

Complaint 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-00055559-001

13/03/2023

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

CA-00055559-002

13/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 45A of the Industrial Relations Act 1946

CA-00055559-003

13/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00055559-004

13/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00055559-005

13/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00055559-006

13/03/2023

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

CA-00055559-008

13/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Employment Permits Act 2006

CA-00055559-009

13/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00055559-010

13/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00055559-011

13/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act 1994

CA-00055559-012

13/03/2023

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

CA-00055559-013

13/03/2023

The complainant commenced employment with the respondent in November 2019 as a security officer. He remains in the respondent’s employment.

The complainant referred a number of complaints to the Workplace Relations Commission on 13 March 2023 concerning his employment with the respondent.

The complainant’s work involved providing a security service at a hospital site. 

The respondent prevented the complainant from taking breaks.

The complainant was promoted to the core security team and, whilst this involved a change in work, it did not involve an increase in salary.  He continued to not be allowed rest breaks at work.

He was promoted to supervisor in August 2021, becoming in charge of the core team, and his wage increased.  He continued to undertake the supervisor role until August 2022 when his manager demoted him because he was not fit to carry out his job.  After a period of absence, he returned to work on front door security.

The complainant was never given any reason for two demotions.  The complainant did not receive any notification of changes to his terms and conditions of employment under the original contract. 

Complaints referred to the Commission bearing reference numbers CA-00055559-001 and CA-00055559-009 were withdrawn.

Summary of complainant’s sworn evidence

The complainant commenced working with the respondent in November 2019 following an interview in Dublin.  The complainant understood the position to involve 48 hours work per week and that he would undertake his duties at a hospital site.  He signed a contract and was provided with a copy.

For the first year, the complainant was assigned to 1-1 security work in relation to a patient at the hospital. 

In 2021, the complainant was assigned to the core security team at the hospital which involved 12-hour shift work, patrolling in pairs around the hospital.  The respondent had a site supervisor at the hospital.  There were no fixed break times.  The complainant had his lunch whenever he got a chance.  He was based in the security hut.

The complainant was appointed supervisor at some point in 2022.  This was a promotion.  He was undertaking the supervisor role without being paid for it.   The supervisor role involved responsibility for the other security staff, sending 1-1 security personnel to posts, and dealing with security enquiries from the hospital.  The complainant did not get breaks working as a supervisor. He subsequently received an increase in his rate of pay to €14.50 per hour.  The complainant was not provided with a contract in relation to the changes to his terms and conditions of employment.  He asked the respondent’s general manager for paperwork but nothing was provided. 

The complainant carried out the supervisor role until late August 2022 when he was told by the general manager that he was being demoted.  The complainant asked for the reasons in writing but did not receive any.  The complainant still does not know why he was demoted.  The complainant understood his weight to be the reason for his demotion.  One of the reasons given to the complainant was that there were concerns about the complainant’s ability to fulfil the responsibilities of his role in the event of an emergency.  The complainant felt humiliated.  He was absent from work on sick leave for a couple of weeks after this.  On his return to work, he returned to security duty on the front door. The complainant understood this would be temporary and he did not have a difficulty with that.  However, the complainant is still there, despite raising formal complaints with the site manager. 

The complainant provided medical certificates in relation to his absence which stated that he was unfit for work.  On returning from sick leave absence in August 2022, the complainant had to get two letters for the respondent confirming that he was fit to return to work.

In response to questions from the respondent’s representative, the complainant stated that he did not get rest breaks while he was working on the core team and that he gets rest breaks working on the front door.  When asked when exactly he did not receive rest breaks, the complainant said that it was an ongoing issue from when he started first on the core team.  He said that he reported this issue on one occasion, 12 months ago or more, and that he had to put up with it after that.   The complainant receives breaks in his assignment on the front door.  The complainant was not in a position to clarify when he didn’t have a break or eat his lunch in the 6-month period prior to the referral of his complaint to the Workplace Relations Commission.

The complainant did not get a new contract when he got his promotion, he did not receive written notification of the change or increase in his hourly rate of pay.   The complainant wanted an updated contract, but he didn’t receive one. The complainant continues to get paid the same rate notwithstanding he is no longer a supervisor.  The complainant confirmed the pay increase was reflected in his payslips.  The complainant confirmed that he did sign a contract in 2019.

The complainant did not bring anything to his employer’s attention regarding his employment equality rights prior to his demotion on 17 August 2022.

A preliminary issue was raised regarding the timeframe of the alleged breaches. 

It was submitted that there were no dates referred to in the complainant’s written submission or in the narrative of his complaint form, and that any dates referred to at the hearing were non-specific and/or were outside the statutory timeframe for referral of complaints to the Workplace Relations Commission.

It was difficult for the respondent to respond to the claim under the Employment Equality Acts 1998-2015.  The complainant did not provide any information or evidence of victimisation and there were also statutory time limit issues in relation to this claim.

Summary of General Manager’s evidence

The respondent interviewed persons for the position of site supervisor; the complainant does not hold that position.  

The complainant’s description of his role being that of supervisor stems from a historical position on the roster known as the first general; whoever held this position carried the site bleeper.  There was no increased pay rate for the first general position.  The position could be assigned to any security officer on the roster, although it normally goes to the most experienced.  The position is rotated between the security officers.

Additional funding was secured to increase the rate of pay of an officer holding this position on the roster and, in or around this time, the name changed from first general to supervisor. 

The complainant was granted the supervisor rate as he was undertaking the supervisor position at the time, and he has continued to receive the increased rate albeit that he does not currently hold the supervisor position on the roster.

The complainant’s move to the front door security position was not a demotion.  The complainant is part of the security team.  The witness never discussed the complainant’s weight with the complainant.

Under cross-examination, the witness did not accept that the complainant was promoted to the core team; the core team is part of the security team, they just have different duties.   The witness said there had never been an acting supervisor position.   The complainant is not a supervisor, he is currently front door security on the site.

In re-examination, the witness said that the supervisor position was not a promotion, it was used to describe the additional duties attached to that position.

CA-00055559-001 (Organisation of Working Time Act 1997)

This complaint was withdrawn at the hearing by or on behalf of the complainant.

CA-00055559-002 (Organisation of Working Time Act 1997)

The complaint under section 27 of the Organisation of Working Time Act 1997 (the “1997 Act) concerned receipt of rest breaks.

The relevant time limits for referral of complaints under the 1997 Act are set out in s. 41(6) of the Workplace Relations Act 2015 which provides:-

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(7) …

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The complaint was received by the Workplace Relations Commission on 13 March 2023. 

The complainant’s evidence was that he did not get rest breaks while working on the core team and that on his return to work in or around August or September 2022, following a period of sick leave absence, he was taken off the core team and assigned to front door security.   Under cross-examination, the complainant said he received two 30-minute breaks working on the front door.  The complainant could not provide particulars of contraventions occurring in the cognisable period, namely 14 October 2022 to 13 March 2023.  

I find that this complaint was presented more than 6 months after the date of contravention to which the complaint relates.

Accordingly, I find that the complaint is not well founded.

 CA-00055559-003 (Industrial Relations Act 1946)

This complaint concerns the complainant not being allowed a daily rest period or a break as set out in an Employment Regulation Order, namely Employment Regulation Order (Security Industry Joint Labour Committee) 2017, S.I. No. 231 of 2017, despite formal complaints being made by the complainant to the respondent.

There was no evidence before me regarding the complainant not receiving daily rest periods. 

The complainant’s evidence was that he did not receive rest breaks at work when he was working on the core security team.  The complainant has not worked on the core team since August 2022.  This complaint was received on 13 March 2023 and was therefore presented outside the timeframe set out in section 41(6) of the Workplace Relations Act 2015.

In the circumstances, I find that the complaint under section 45A of the Industrial Relations Act 1946 is not well founded.

CA-000055559-004 (Terms of Employment (Information) Act 1994)

The complaint presented is that the complainant did not receive a statement in writing of his terms of employment.

The respondent was required by section 3(1) of the Terms of Employment (Information) Act 1994 (the “1994 Act”) to provide the complainant with a statement in writing concerning certain particulars of the complainant’s terms and conditions of employment within two months of the complainant commencing employment.

The complainant confirmed in his direct evidence that he was provided with, and signed, a contract of employment prior to commencing employment on 29 November 2019.  At the hearing, the respondent provided a copy of the contract signed by the complainant on 23 November 2019, which is expressed, along with the employee handbook, to be in compliance with section 3 of the 1994 Act.  The contract of employment submitted by the respondent was not contested by the complainant.  I further note the written submission on behalf of the complainant which refers to the original contract received by the complainant.

Accordingly, I find that this complaint is not well founded.

CA-000055559-005 (Terms of Employment (Information) Act 1994)

The complainant’s evidence was that he was promoted to the role of supervisor in early 2022 and was subsequently paid a higher hourly rate for this role.

It is common case that the complainant held the supervisor position on the roster for a period until August 2022, and that the complainant continues to be paid the increased hourly rate.

The complaint is in respect of the complainant not being notified of the changes in respect of the nature and type of work that he was promoted or demoted into after his initial contract of employment. 

The parties differed on whether the complainant was in fact promoted or demoted.  The respondent’s evidence was that it interviews for the role of site supervisor and that at no stage was the complainant undertaking the role of site supervisor, including in any temporary capacity.  The respondent’s security general manager outlined how the supervisor role referred to by the complainant is not a promotion but refers to a position on the security roster which is normally held by the most senior security officer.  The supervisor on the security roster carries the bleep used by the contract client to make contact with the security service.  Additional funding was secured to increase the rate of pay for security officers covering the supervisor role.   The respondent paid the complainant the supervisor rate as he had been undertaking the supervisor role.  The respondent continues to pay the complainant the supervisor rate although he is no longer doing the supervisor role on the roster. 

The complainant confirmed that he was not interviewed for the role of supervisor and I note the complainant’s evidence that anyone who gets promoted, gets a new contract.  I further note that the complainant’s evidence referred to a named individual who held the role of site supervisor at the time.

I am not satisfied that the complainant was promoted in either in 2021 to a core team or in early 2022 to a supervisor role.  The functions and duties of the complainant’s employment as security officer are to provide a service of a security or surveillance nature, the purpose of which is to protect persons and property.  The work outlined by the complainant on special assignment, on the core team and in the supervisor role on the roster fall within the description of the role of security officer outlined in the contract of employment. 

There was clearly a change in the particulars of the contract relating to pay.  This change occurred at some stage in 2022.  There was no evidence before me of the respondent having notified the complainant in writing of the nature and date of the change no later than one month of the change taking effect.  I find that section 5 of the 1994 Act was contravened in this regard and that this is a subsisting contravention. 

I find this complaint to be well founded and order the respondent pay to the complainant compensation of €1,392.00, equivalent to 2 weeks’ remuneration, which I consider just and equitable having regard to all the circumstances.  Notification to the complainant of the nature and date of the change in the complainant’s rate of pay would have given the complainant information on matters the subject of his complaints to the Workplace Relations Commission. 

CA-000055559-006 (Terms of Employment (Information) Act 1994)

This complaint is that the complainant did not receive a statement of his core terms in writing under section 3(1A) of the 1994 Act.  

The complainant was provided with, and signed, a contract of employment prior to commencing employment on 29 November 2019.  The respondent provided a copy of the contract signed by the complainant on 23 November 2019, which is expressed, along with the employee handbook, to be in compliance with section 3 of the 1994 Act.  The contract of employment submitted by the respondent was not contested by the complainant and, on my review, contains information on the core terms set out in section 3(1A) of the 1994 Act.

I find that this complaint is not well founded.

CA-000055559-008 (Employment Equality Act 1998)

A claim of victimisation was referred to the Workplace Relations Commission under section 77 of the Employment Equality Acts 1998-2015 (the “Acts”).

Victimisation is defined in section 74(2) of the Acts as follows:-

“(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful or any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

A written submission lodged with the Commission the day before the hearing outlined that the claim under section 77 of the Acts related to the demotion of the complainant from two positions to which he had previously been promoted. 

In an earlier communication to the Commission, the complainant referred to a complaint of discrimination on grounds of disability, and further that 1 April 2022 was the most recent date of discrimination. 

The complainant’s evidence in relation to 1 April 2022 was with respect to an interaction in the workplace between the complainant and a work colleague on shift changeover, and the work colleague’s subsequent alleged inappropriate comments about the complainant to others in the workplace.  The foregoing was the subject of the complainant’s complaint to the respondent on 5 April 2022; the respondent’s bullying and harassment procedures in respect of that complaint are the subject of a dispute referred by the complainant under the Industrial Relations Act 1969.

I note that the complainant’s email of 5 April 2022 to the operations director is in relation to alleged bullying.  I further note that the alleged inappropriate behaviour outlined in the written submission on the complainant’s behalf is asserted to be bullying in respect of which the respondent had health and safety duties. 

Having carefully considered the evidence, I am not satisfied that the complaint made by the complainant in relation to the 1 April 2022 incident was a complaint of discrimination within the meaning of s.74(2)(a) of the Acts. 

There was no evidence of the complainant having undertaken a protected act set out in (a) to (g) of section 74(2) of the Acts and the complainant having been demoted for having undertaken such an act.

Accordingly, I do not find that the complainant was victimised within the meaning of section 74(2) of the Acts, and I find that the claim is not well founded.

CA-000055559-009 (Employment Permits Acts 2003)

This complaint was withdrawn at the hearing by or on behalf of the complainant.

I therefore find the complaint is not well founded.

CA-000055559-010 (Terms of Employment (Information) Act 1994)

The complainant confirmed under cross-examination that he had not been penalised for invoking any right under the Terms of Employment (Information) Act 1994.

There was no evidence before me to support a complaint of penalisation or threat of penalisation in this regard.

I therefore find that this complaint is not well founded.

CA-000055559-011 (Terms of Employment (Information) Act 1994)

The complainant confirmed under cross-examination that he had not been penalised for having opposed an act that is unlawful under the Terms of Employment (Information) Act 1994 (the “1994 Act”).

There was no evidence before me to support a complaint of penalisation or threat of penalisation in relation to section 6C(1)(b) or (d) of the 1994 Act.

I therefore find that this complaint is not well founded.

CA-000055559-012 (Terms of Employment (Information) Act 1994)

The complainant confirmed under cross-examination that he had not been penalised for giving evidence in any proceedings under the Terms of Employment (Information) Act 1994 (the “1994 Act”).

There was no evidence before me to support a complaint of penalisation or threat of penalisation in relation to section 6C(1)(c) or (d) of the 1994 Act.

I therefore find that this complaint is not well founded.

CA-000055559-013 (Organisation of Working Time Act 1997)

The complainant confirmed under cross-examination that he had not been penalised or threatened with penalisation for opposing an act that is unlawful under the Organisation of Working Time Act 1997 (the “1997 Act”) or for giving notice of his intention to do so.

The complainant said that he reported the issue of non-receipt of breaks on one occasion in or around September 2022.  I note that from in or around August or September 2022, on his return to work, the complainant was assigned to front door security.  The complainant’s evidence was that he received breaks in this assignment. 

The evidence does not support the complaint that the complainant opposed an act which was unlawful under the 1997 Act, or gave notice of his intention to do so, and was penalised or threatened with penalisation for so doing.

I find that this complaint is not well founded. 

CA-00055559-001 (Organisation of Working Time Act 1997)

This complaint was withdrawn by the complainant at the hearing.  Accordingly, I find that this complaint is not well founded.

CA-00055559-002 (Organisation of Working Time Act 1997)

For the reasons outlined above, I find that this complaint is not well founded.

CA-00055559-003 (Industrial Relations Act 1946)

For the reasons outlined above, I find that this complaint is not well founded.

CA-00055559-004 (Terms of Employment (Information) Act 1994)

For the reasons outlined above, I find that this complaint is not well founded.

CA-00055559-005 (Terms of Employment (Information) Act 1994)

I find that this complaint is well founded and order the respondent to pay to the complainant compensation of €1,392.00, which I consider just and equitable in the circumstances.

CA-00055559-006 (Terms of Employment (Information) Act 1994

For the reasons outlined above, I find that this complaint is not well founded.

CA-00055559-008 (Employment Equality Act 1998)

For the reasons outlined above, I find that the claim is not well founded.

CA-00055559-009 (Employment Permits Act 2006)

The complaint was withdrawn by the complainant at the hearing.  I therefore find that the complaint is not well founded.

CA-00055559-010 (Terms of Employment (Information) Act 1994

For the reasons outlined above, I find that the complaint is not well founded.

CA-00055559-011 (Terms of Employment (Information) Act 1994

For the reasons outlined above, I find that the complaint is not well founded.

CA-00055559-12 (Terms of Employment (Information) Act 1994

For the reasons outlined above, I find that the complaint is not well founded.

CA-00055559-13 Organisation of Working Time Act 1997

For the reasons outlined above, I find that the complaint is not well founded.

Multiple complaints – Time Limits – Evidence