Worker

Employer

Anonymised Parties

A Security Officer

A Security Company

Representatives

Victoria Stephens and Deirdre Canty SIPTU

 HR Director

Employee Relations Manager

Act

Dispute Reference No.

Date of Receipt

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

CA-00048268

21/01/2022

The Worker commenced his employment with the Employer on 14th November 2018 as a Security Operative. He resigned his position on 11th February 2022.

The Worker referred his dispute to the Director General of the WRC on 21st January 2022 alleging that he was penalised for complying with or making a complaint under the Safety, Health & Welfare at Work Act, 2005. The Worker wished to pursue the same claim under both the Safety, Health and Welfare at Work Act, 2005 which is subject to a decision in a complaint bearing reference number ADJ-00036931, and under the Industrial Relations Act, 1969.

SIPTU, on behalf of the Worker, submits as follows.

This claim was initiated by the Union following the acts or omission by the Employer, when the Worker was moved to an alternative work site/location suffering less favourable remuneration and working time terms. These acts and/or omissions were to the Worker’s detriment due to his personal circumstances, of which he had made the Employer aware prior to raising the grievance  against his colleague.

SIPTU is seeking to have the Worker compensated for his financial loss accruing from this penalisation by the Employer since September 2021.

On the 14 November 2018 the Worker commenced employment with the Employer and was employed primarily as a Security Officer, reporting to the Operations Manager. The Worker was based at the named site. The Worker’s duties, responsibilities and reporting relationships were set out in the Employee Handbook which was exhibited at the adjudication hearing.

On the 17 September 2021 the Worker initiated a complaint of bullying against a colleague, Mr. F. On that date the Worker met with the Regional Operational Manager.

On the 1 October 2021 the scheduled grievance hearing took place via video call. Mediation was proposed to the Worker, and he agreed to participate.

On the 26 October 2021 the Worker and Mr. F attended mediation together, which was mediated by the HR Director and ended successfully for all parties involved.

On the 28 October 2021 the Regional Operational Manager emailed the Worker stating that having ‘spoken with [the Client] in length over the past two days’ ‘they have agreed that both you yourself and [Mr. F] can now be on site together at the same time due to the mediation process being concluded.’ The same email stated that ‘I appreciate that you have been afforded day shifts due to your family circumstances at home. The company will continue to accommodate your shift patterns as much as possible,’ notwithstanding the need for flexibility to accommodate business needs.

Less than a month later the Client’s Site Supervisor advised the Worker that he ‘will not be able to work on the same shift with [Mr. F] and that he can only work on this site when [Mr. F] is not on site,’ which is at weekends.  When the Worker suggested that he would work Friday, Saturday & Sunday, he was advised that this would not work as Mr. F would suffer a loss of hours. The Worker’s hours had been reduced to 24 hours without agreement at that time.

There was no justification as to why the Site Supervisor at that time deemed it fair to move the Worker due to the grievance lodged as it was a private and internal matter between the parties involved as provided for in the Employer’s own Company Policies and Procedures. The Employer’s Employee Handbook, in relation to mediation states that ‘should such options be deemed inappropriate or inconclusive, a formal investigation of the complaint will take place with a view to determining the facts and the credibility or otherwise of the allegations.’ However, mediation had been successful.

On the 18 November 2021, SIPTU raised concerns by email and queried as to why the Client would have been consulted on the internal employee matter as the Client did not employ either party, both the Worker and Mr. F were employees of the Employer. The Employer’s Employee Handbook refers to the interests of natural justice, and yet, though the mediation process was successful, it was the Employer who informed the Client of the grievance, ultimately leading to the Client ‘agreeing to have both parties on site together and no further grievances were raised,’ the Worker was subsequently moved onto another site, received reduced hours, and reduced flexibility without any reasoning provided other that he raised a grievance of bullying in relation to a colleague.

At the adjudication hearing, SIPTU confirmed that the detriment allegedly suffered by the Worker referred to the loss in Sunday premium rate. A separate agreement was in place on the Client’s site that provided for an extra payment of €3.44 per hour for hours worked on a Sunday. On 10th November 2021, the Worker signed an amendment to his terms of employment that stipulated that as of 22nd October 2021 this allowance would be applied to the position of the Security Officer based on the Client’s site.

CONCLUSION

SIPTU request that the Adjudication Officer consider

·         whether there was a requirement on the Employer to make the Worker, who followed the Employer’s policies and procedures, aware of potentially being moved, suffering reduced hours, remuneration and flexibility solely as a result of raising the grievance; and

·         whether the Employer – who agreed their grievance procedure with its employees, adhered to those procedures when conducting the grievance process in the present case; and

·         whether, in all the facts and circumstances, moving the Worker was an appropriate action on behalf of the Employer, or had the Employer adequately considered alternatives to this action.

At the adjudication hearing, SIPTU said that the Worker needed time off to care for his mother. He resigned when he used up his sick leave. SIPTU confirmed at the hearing that the Worker resigned due to his family circumstances.

SIPTU clarified at the adjudication hearing that the detriment the Worker suffered was the reduced Sunday premium. He normally worked three Sundays a month and the rate at the Client’s site was higher than the rate at Site A that he was moved to.

The Worker was out sick from 31st October 2021 to 15th November 2021 and then from 26th November 2021. SIPTU contended that the Worker was stressed. However, the Union representative conceded that the medical cert was in relation to a “medical condition”.

At the adjudication hearing, the Worker clarified that he normally worked 4 days a week, 12 hours on each day. The Worker worked on 16th and 17th November 2021 at the Client’s site. On 17th November 2021 he was told that he could not work anymore with Mr. F on the same site. The Worker worked a 12-hour shift on 18th and 19th November 2021 as Mr. F was off on both days. The Worker was then not rostered for work Monday to Friday of the next week until Saturday and Sunday. He was then rostered from 23rd November 2021 to work four days a week on another site (Site A). He was rostered, as previously on day shifts only. However, he did not work on these days as he was initially rostered to be off and thought he did not get an appropriate notice. He went out sick from 26th November 2021.

It was put to the Worker that he did not suffer any loss as he never worked on the new site, he went out sick and never returned to work.

The Shop Steward said that the Worker spoke to him on 16th September 2021. As he was on leave, he advised the Worker to speak to his supervisor and a SIPTU representative. The Worker spoke to the Supervisor and SIPTU representative on the same day and explained what had happened.

The Shop Steward said that the Client’s site has a separate agreement with respect to Sunday premium and a rate of €15.09 per hour is paid at the site.

The Employer submits as follows.

The Worker commenced with the Employer on the 14 November 2018. He worked as a Security Officer at a number of sites and eventually worked at the named Client’s site.

In or around September 2021 it was brought to the Employer’s attention, through the grievance procedure, that the Worker and a colleague Mr. F were not getting on well together. The Worker felt he was having difficulties with Mr. F and the Employer held an investigation into the matter. As a result of these meetings, it was felt that the best way to resolve the issue was to hold a mediation process. This was agreed by both parties.

The mediation was held on the 26 October 2021. The Worker was represented by a fellow worker Mr K. The mediator was the HR Director, a practicing member of the Mediators Institute of Ireland. The mediation was successful and both parties agreed to work in a friendly manner without conflict going forward.

At some stage during this process the Client became aware of the conflict which existed between the Worker and Mr F. It is not known who informed the Client of the conflict. It was not in the Employer’s interest that the Client was made aware of what was going on in this regard. As far as the Employer was concerned this was an internal dispute which did not affect its contractual obligations with the Client. The Employer was confident at all stages that it could rectify the situation and did not need to inform the Client. To the Employer’s surprise the Client made it known that they were aware of the conflict and that they did not want both employees on their site at the same time. When the Client was made aware that the mediation was a success it agreed that both employees could return to their previous duties on site.

The Client reneged on their original promise and informed the Employer that the two employees could not work on the site at the same time. The Employer discussed that situation with both the Worker and Mr. F offering them both alternative employment with no loss of earnings. This meant one remaining at the site and one working at an alternative site in the area. The Employer could not get agreement, so the option was to take both employees out of the current site and have two unhappy employees or make a decision that one remained and the other was offered alternative employment. The Employer discussed with both employees the Client’s decision that only one could stay and both wished to remain on the site. The Employer’s decision was that the most senior person should be given the choice. Mr. F was the senior person by far having commenced with the Employer on the 29 March 2011. The Worker was offered alternative sites, but he turned them down. He was on sick leave from the 26 November 2021 and remained on sick leave until he resigned with effect from the 11 February 2022.

The Employer never had a problem with the Worker and in fact would have no hesitation in re-employing him if a vacancy arose at a location other than the Client’s site.

At the adjudication hearing, the HR Director said that he had asked around, but he could not establish who informed the Client of the situation. He said that the Regional Operational Manager was called by the Client and told that the Client was aware of the issue. He said that the Client is the biggest client of the Employer. The HR Director said that the Employer could not influence the Client to change its mind, there was nothing sinister about it. The HR Director said that there is no question whatsoever that the Worker was penalised or victimised. He said that the Worker raised a grievance, which was investigated. The Worker was represented. The Parties were offered mediation. He said that the requirement to move was a request of the Client.

Post-hearing, on 6th September 2022, the Employer provided clarification that Sunday premium applicable at the clients site was increased from €5 shift allowance to €3.44 per hour as of 22nd October 2021.

In conducting my investigation, I have taken into account all relevant submissions presented to me by the parties.

SIPTU confirmed at the oral hearing that this dispute is based on the same set of facts that are contained within the complaint of penalisation contrary to Section 27 of the Safety, Health and Welfare at Work Act, 2005. The statutory framework for making a complaint in relation to such matters is clearly provided for in the Safety, Health and Welfare at Work Act, 2005. The Worker has already sought redress in respect of the claim of penalisation in accordance with the statutory framework set out in that enactment.

In the circumstances, I find that the complaint of penalisation in the instant claim does not fall within the definition of a “trade dispute” for the purpose of Section 13 of the 1969 Act. Accordingly, I do not recommend in favour of the Worker in relation to this dispute.

 I do not recommend in favour of the Worker in relation to this dispute.

Penalisation – parallel claims