Complainant

Respondent

Parties

Mindaugas  Uoka

Sharp Group Fire & Security Services

Representatives

  N/A

 N/A

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003).

CA-00059398-002

15/10/2023

On 27 April 2017, the Complainant commenced work as a Security Officer with his previous employer. On 1 June 2023, following a transfer of undertaking process, the Complainant commenced working for the Respondent. The Complainant worked a maximum of 48 hours per week, earning €12.65 per hour plus the JLC night allowance, where applicable. The Complainant alleges that following the transfer, he was retained on less favourable terms and conditions of employment to those he held while in the employment of his previous employer. The Complainant alleges that the Respondent has therefore breached the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003). The Respondent denies the allegations in their entirety.

The Complainant provided written and oral submissions.

The Complainant submitted that he was first informed of the transfer in early May 2023. The Complainant submitted that he transferred to the Respondent “with the understanding that [his] duties and work location would remain the same.” The Complainant submitted that on 30 May 2023, he was informed of “substantial changes” which included: “a shift time adjustment; changes in work location (from Block A to Block B) and new duties (accepting and unloading deliveries)”. The Complainant also submitted that he did not agree to his pay increase as he expected a greater increase. The Complainant submitted that these changes were made without his consent and had “a significant impact on [his] working conditions”. The Complainant further submitted that he was unilaterally removed from the roster. The Complainant submitted that he tendered his resignation on 8 August 2023 and that his last day of employment was 13 August 2023.

The Complainant – Evidence:

The Complainant submitted that he worked a mixture of shifts, incorporating days, night and weekends.

The Complainant submitted that he received information concerning the transfer on 16 May 2023 but refused to sign anything until he saw the new contract.

The Complainant submitted that he met with the Senior Contracts Manager on 22 May 2023. The Complainant submitted that he was assured that he would stay in Block A; that his work would remain the same; and there would be no changes regarding his roster or duties. The Complainant submitted that the Senior Contracts Manager stated that he could not provide any information regarding pay at that time. Despite the foregoing, the Complainant submitted that numerous changes were ushered in over the course of a couple of days and that he did not have enough detail to make an informed decision about transferring to the Respondent.

The Complainant submitted that the following changes occurred:

·             He was moved to Block B.

·             There was a “shift time adjustment”.

·             He had expected a higher pay increase, amounting to an hourly salary of at least €14. He submitted that he first received details of a pay increase on 31 May 2023. He said that the Respondent refused to negotiate with him. The Complainant submitted that, in the circumstances, he had to accept an increase of €1 per hour amounting to a total of €12.65 per hour.

·             His roster was issued by the Respondent’s Control Room.

·             His new duties involved accepting heavier deliveries and completing paperwork for the same. The Complainant refused to complete the Manual Handling Course and so he did not complete these duties. The Complainant submitted that he had accepted deliveries such as post and small parcels when working for his previous employer.

·             His patrol during the night shift took longer.

·             His duties doubled.

·             He had to work alongside another security officer during the day shift. He was dissatisfied with this as he did not like to talk to anyone and he preferred to work alone.

The Complainant is seeking compensation.

The Respondent provided oral submissions.

Mr. Robert Boylan – Evidence:

Mr. Boylan outlined that he is the Respondent’s Senior Contracts Manager. In this role, he oversees 160 security staff and 30 client contracts. Mr Boylan outlined that he has worked for the Respondent since September 2021. He outlined that he first came to know the Complainant in May 2023.

Mr. Boylan outlined the following:

·             The employees were moved to Block B as Block A, located around the corner, was decommissioned.

·             The hourly salary was increased by €1 per hour as a gesture of goodwill. He outlined that the pay rate was not up for negotiation.

·             The employees were required to do a Manual Handling Course to accept heavier deliveries. The Complainant had already accepted lighter deliveries when he worked for his previous employer. The Complainant refused to complete the Manual Handling Course.

·             The Complainant’s workload was not doubled as two employees now worked the day shift.

Cross-Examination:

Mr. Boylan confirmed that employees had to sign a consent form, prior to the transfer, to permit the Respondent to communicate with them. He outlined that employees were given 30 days’ notice of the transfer and that they could transfer to the Respondent or remain with their previous employer.

Mr. Boylan confirmed that the Respondent was awarded the client contract in May 2023. Mr. Boylan stated that the Respondent first learned that Block A would be decommissioned on 5 June 2023.

Mr. Boylan confirmed that the Complainant’s night patrol took approximately 18 minutes longer. He stated that as there is a lower footfall at nights and weekends, only one employee is on duty at those times.

Mr. Boylan stated that he did not withhold information from the Complainant and that he responded to his correspondence.

Mr. Boylan stated that the employees can request days off etc. using the “Timegate” software.

Mr. Philip Fitzsimons – Evidence:

Mr. Fitzsimons outlined that he is the Respondent’s Contracts Manager since July 2023. In this role, he assists the Senior Contracts Manager.

Mr. Fitzsimons outlined that when a security contract is awarded, the role of a security officer is not specifically discussed. He outlined that, at that stage, the Respondent did not have visibility on the decommissioning of Block A or certain other details. He further outlined that the Manual Handling Course was a “straightforward” course which the Complainant alone refused to do. He also outlined that there are no deliveries during the night shift or weekend shift.

Cross-Examination:

Mr. Fitzsimons outlined that it is not standard practice to let employees know that they would have to work with other employees. He outlined that a degree of flexibility is required.

The Law:

Regulation 4 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, S.I. 131/2003 (the “Regulations”) states:

“(1) The transferor’s rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

(2) Following a transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”

The issue before me is whether the Complainant was retained on less favourable terms and conditions of employment, to those he held while in the employment of his previous employer, following the transfer of his employment to the Respondent.

While there is a subjective element that must be considered when adjudicating upon what is “less favourable”, the objective test takes precedence. The Complainant must therefore demonstrate how a change could be considered a breach of a fundamental term of his contract of employment.

Findings and Conclusion:

Having carefully considered the evidence adduced, I am satisfied that the Complainant’s role continued and that his duties and responsibilities were substantially the same following the transfer. I find that the Complainant has not demonstrated that he was retained on less favourable terms and conditions of employment. I note that the Complainant did not demonstrate how any of the changes at issue could be considered a breach of a fundamental term of his contract of employment. To this end, I note:

·             The Complainant’s place of work moved a short distance around the corner from Block A to Block B. Both blocks are in the same building and the move simply resulted in the Complainant using a different entrance. The Complainant did not demonstrate how this change could be considered a breach of a fundamental term of his contract of employment.

·             The Complainant worked a mixture of shifts, incorporating days, nights and weekends. The Complainant did not demonstrate how the “shift time adjustment” could be considered a breach of a fundamental term of his contract of employment.

·             The Complainant was given a pay increase by the Respondent. This was more favourable for him.

·             The Complainant could apply for time off using the “Timegate” software. He was not refused any time off. The Complainant did not demonstrate how the new rostering system could be considered a breach of a fundamental term of his contract of employment.

·             The Complainant already accepted lighter deliveries when working for his previous employer. The Complainant did not demonstrate how completing the Manual Handling Course and accepting heavier deliveries could be considered a breach of a fundamental term of his contract of employment.

·             The Complainant did not demonstrate how his night patrol taking approximately 18 minutes longer change could be considered a breach of a fundamental term of his contract of employment.

·             The Complainant’s allegations that his duties were doubled are undermined by the fact that he worked alongside an extra member of staff during the day shift and so the workload effectively remained the same.

·             Finally, the Complainant did not demonstrate how working alongside another member of staff could be considered a breach of a fundamental term of his contract of employment.

I am satisfied that the Complainant was not retained on less favourable terms and conditions of employment following the transfer. In the circumstances, I find that the Respondent has not breached the Regulations and the complaint is not well founded.

For the reasons set out above, this complaint is not well founded.

The European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, S.I. 131/2003.