Complainant

Respondent

Parties

Aidan  O'Grady

Secure Management Solutions Limited

Representatives

Self-represented 

David Byrne, Group GM

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00063973-001

07/06/2024

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

CA-00063973-002

07/06/2024

The Complainant commenced his employment with the Respondent on 23 January 2024.

On 7 June 2024, the Complainant referred two complaints against the Respondent to the Director General of the WRC pursuant to the Minimum Notice & Terms of Employment Act, 1973 and the Terms of Employment (Information) Act, 1994.

The Complainant furnished his written submission in advance of the hearing. At the adjudication hearing, the Complainant gave evidence outlining the events as per his written submission.

The Complainant submits that he commenced work with the Respondent on 23 January 2024. He submits that he was told from the start that there would be a minimum of 4 years work at the site where he was stationed.

The Complainant submits that Mr L, the Area Manager came on site on 19 April 2024 and told a Supervisor that staff would finish working at that location on 28 April 2024. The Area Manager expected the Supervisor to inform all the staff of this. The Supervisor was told that an email would be sent to staff that evening.

The Complainant submits that he received a phone call on 24 April 2024 informing him of the cessation of the contract with the client. He finished his shift in the morning on 25 April and was not rostered to work thereafter. The Complainant denies that he was out sick and unable to attend work.

On 25 April 2024 the Complainant received an email from the Security Operations Manager of the Respondent stating:

“Dear Employee,

I am emailing to notify you of the correspondence that we have received from our client in relation to the cessation of the security services provided by our company located at [named location in Limerick]. Our services provided to this client at the premises named above will cease as on 28.04.2024.

Unfortunately this matter is completely outside of our control and therefore we can no longer assign you further duties at this location going forward from this date. Please be assured that the company endeavours to retain all existing employees that are currently assigned duties at this location, below you will find a list of positions are currently available to you with an immediate start available. I await your correspondence to this email to notify me of your interest in either of the below roles, I will then schedule your site induction and safety training at this location and notify the rostering department to assign you duties at this location going forward.

Available vacancies: Static Security Office, Navan Co Meath full-time/part-time €12.90 p/hr

Static Security Office, Athlone Co Westmeath €13.00 p/hr

Static Security Office, Tallaght Co. Dublin €13.75 p/hr

I await your correspondence and I apologise for the inconvenience that this news may cause for you, the company will keep you updated via email with additional vacancies for your consideration as they become available.”

Following this email, the Supervisor contacted the Security Operations Manager. The Security Operations Manager told the Supervisor that the client informed the Respondent that the local authority had cut the funding. The Supervisor told the Security Operations Manager that staff had been repeatedly told that there was at least 4 years’ work at this location, and he asked to see a copy of the contract with the client. The Security Operations Manager said that staff should never have been told that there was a 4-year contract.

The Complainant submits that since the email of 25 April 2024 to date, the Complainant received no communication from the Respondent in the form of a formal meeting as a group or as individuals. The Complainant was given 3 days’ notice that he would have no work after 28 April 2024. To date he has not received any notice/compensation pay.

The Complainant explained that the alternative positions offered to him were unsuitable. 

The Complainant reiterated that he did not receive his minimum notice on termination of his employment. The Complainant submits that had he known from the outset that the position was only for a short period of time, he would never have given up the full-time positions that he was already in.

The Respondent submits that it is a security services provider licensed by the Private Security Authority (PSA). It operates in nationwide services with many differing clients and locations.

Under the PSA license requirements and an audit, there is a strict requirement for the recruitment, vetting, HR documentation, pay record and compliance with the security Employment Regulation Order.

To meet these requirements, the Respondent developed a robust and thorough process to ensure compliance, as an audit is conducted annually.

The Respondent provides services to many clients, all with their own requirements and a service plan is put in place to meet those. Some contracts with clients are for a number of years, and some are short-term and dependent on other factors such as funding.

The Complainant was provided with notice of the termination of the contract in the location he was deployed at, and he was rostered for shifts between the notification and the actual cessation of the contract.

TIMELINE OF EVENTS

The Complainant was employed on 23 January 2024. On 4 March 2024 a part-time contract was emailed to the Complainant.

On 25 April 2024, a notice of cessation of services to the named client was issued to all employees effective from 28 April 2024. The email included alternative vacancies available.

After a period of weeks where the Respondent had offered the Complainant available positions within the company and no response was received, the Respondent terminated his employment in week 27 (5 July 2024).

The Respondent submits that the Complainant was provided with notice of the termination of the contract in the location he was deployed at the time by email dated 25 April 2024. He was then out sick for some of the time between the notice and the end of the services. He never provided sick certs or accepted the offer of alternative work.

The Respondent rejects the proposition that it would take 2.5 to 3 hours to drive to the alternative locations. It is submitted that it is 1.5 hours from Limerick to Athlone. Had the Complainant availed of that, it would have given time to look at other alternatives coming up in the Limerick area. The Complainant did not engage with that.

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, as amended obliges the Respondent to give the Complainant one weeks’ notice of the date of termination of the contract of employment on the basis of his service.

4. Minimum period of notice

(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,…

Section 12 of the Act provides as follows.

12. Decision of adjudication officer under section 41 of Workplace Relations Act 2015

(1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 4(2) or 5 may, where the adjudication officer finds that that section was contravened by the employer in relation to the employee who presented the complaint, include a direction that the employer concerned pay to the employee compensation for any loss sustained by the employee by reason of the contravention.

Schedule 2 of the Act states:

Second Schedule Rights of Employee During Period of Notice

1.

Subject to the provisions of this Schedule, an employee shall, during the period of notice, be paid by his employer in accordance with the terms of his contract of employment and shall have the same rights to sick pay or holidays with pay as he would have if notice of termination of his contract of employment had not been given.

Employments for which there are normal working hours

2. (a) (i) An employee shall be paid by his employer in respect of any time during his normal working hours when he is ready and willing to work but no work is provided for him by his employer.

(ii) In this subparagraph “normal working hours” in the case of an employee who is normally expected to work overtime, include the hours during which such overtime is usually worked.

(b) In any case where an employee's pay is not wholly calculated by reference to time, the pay which his employer is bound to pay him under subpara.(a) shall be calculated by reference to the average rate of pay earned by the employee in respect of any time worked during the thirteen weeks next preceding the giving of notice.

Employments for which there are no normal working hours

3. Subject to para.4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.

4. An employer shall not be liable to pay to his employee any sum under para.3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said para.3.

The Complainant contends that the Respondent failed to give him notice to which he was entitled in accordance with the provisions of the Act.

There was no dispute that the Respondent informed the affected employees on 25 April 2024 that the contract with a named client would cease on 28 April 2024. There was no dispute that the positions in the named location no longer existed. It appears that, at that juncture, the Complainant’s employment was not terminated and alternative positions within the Respondent organisation were explored and offered to the Complainant.  The Complainant denies that he was out sick and unable to attend work. The Respondent agreed that it could be incorrect in that regard.

The email of 25 April 2024 offered the Complainant three alterative positions, the closest location was some 1 hour 37 minutes from the Complainant’s workplace (Google maps). I accept the Complainant’s position that the offers were not feasible due to their locations and associated commute, and a prohibitive cost of such a commute.

The Respondent did not engage further in any meaningful way and by its own admission, it terminated the Complainant’s employment on 5 July 2024.

I am satisfied that the Respondent did not pay the Complainant during his statutory notice period and nor did it pay him in lieu of his notice entitlement.

I note that the Complainant was ready and willing to work but no work was provided for him by his employerin a location that would be feasible for the Complainant to attend.

The Complainant’s average weekly pay (excluding outstanding pay for annual leave accrued and paid on cessation) in the last thirteen weeks when he was scheduled to work was €564.98 gross.                

Having regard to the evidence before me, I declare this complaint to be well founded. I direct the Respondent to pay the Complainant compensation of €564.98, the equivalent of one week’s notice.

The Complainant submits that he applied for a full-time permanent position with the Respondent on 17 January 2024. One hour later he received a phone call from the Respondent offering him the job. He was to start on 23 January 2024 on a 48 hours per week basis.

On 24 January 2024, the Complainant met with Mr K, a manager who informed him that there would be at least 4 years work on the specific site the Complainant was working at.

The Complainant submits that, as he had not received a contract, he emailed HR. He was repeatedly given a part-time contract with the Respondent. When he queried this, he was informed by a named employee in the HR department that this was a standard contract the Respondent used, even though the Complainant was a permanent and a full-time employee.

The Complainant submits that he has spoken several times with two named managers and each time he was told that the position was permanent and full-time. He said that he would not have taken up a position that was not permanent. The Complainant said that had the Respondent been up front from the start, he would have made arrangements to seek alternative employment. It took the Complainant several weeks to find a new position which is at a lower rate of pay.

The Complainant, in his evidence, said that he worked full-time hours. He said that HR confirmed that he was a full-time permanent employee of the Respondent, but HR would not issue an accurate contract. The contract did not reflect his actual conditions of employment.

The Complainant said that he would not have resigned from his permanent full-time position to take up a temporary, part-time job with the Respondent had he been informed that that was the case.

The Respondent asserts that the Complainant was provided with his contract of employment by email on 4 March 2024.

The Respondent has acted openly and reasonably with the Complainant. The Complainant alludes to being promised a 4-year employment contract. The Respondent did not have a contract with the client in force and would never assume to have one secured until all relevant contracts have been agreed and signed. This is a result of providing services in an uncertain setting such as housing initiatives and IPAS centres which are often subject to financing among other considerations. Their funding is not guaranteed and can end abruptly.

At the adjudication hearing, Mr Byrne, on behalf of the Respondent conceded that the contract stated that the Complainant was a part-time employee, but he did work in a full-time capacity. He also conceded that the contract was incorrect in stating that the Complainant was a “temporary” employee.

Section 3 of the Terms of Employment (Information) Act, 1994 as amended (‘the Act’) specifies the particulars of the terms of employment which an employer must give in writing to an employee. The information required by subs. (1A) must be given not later than five days after the commencement of employment. The remaining information must be given not later than one month after the date of commencement of employment. 

The Complainant asserted that he was employed on a permanent and full-time basis, but his contract did not reflect that.

The Respondent submitted that the Complainant was employed on a “temporary” and a part-time basis as per the contract that was issued to him. The Respondent was unable to clarify the meaning of the “temporary” contract. The expected duration of the contract or, if the contract of employment was for a fixed term, the date on which the contract expires were not specified and not provided either to the Complainant or to the hearing.

At the adjudication hearing, the Respondent accepted that the Complainant’s contract was incorrect. The Respondent conceded at the hearing that the Complainant was employed on a permanent basis but was not permanently assigned to a specific location. It was not contested that the Complainant, in fact, worked full-time hours. It was also not contested that the Respondent’s HR Administrator confirmed that the Complainant worked full time and on a permanent basis.

The Complainant submitted that he would not have left his previous permanent job had he known that the contract with the Respondent was not a permanent and a full-time one.

There was no dispute that the written statement of terms and conditions issued to the Complainant did not reflect his actual pattern of work and the nature of the employment relationship.

Section 7 of the Act provides that:

(2) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G] shall do one or more of the following namely—

(a) declare that the complaint was or, as the case may be, was not well founded,

(b) either—

(i) confirm all or any of the particulars contained or referred to in any statement furnished by the employer under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G, or

(ii) alter or add to any such statement for the purpose of correcting any inaccuracy or omission in the statement and the statement as so altered or added to shall be deemed to have been given to the employee by the employer,

(c) require the employer to give or cause to be given to the employee concerned a written statement containing such particulars as may be specified by the adjudication officer,

(d) in relation to a complaint of a contravention under section 3, 4, 5, 6, 6C, 6D, 6E, 6F or 6G and without prejudice to any order made under paragraph (e) order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

(e) in relation to a complaint of a contravention under section 6C, and without prejudice to any order made under paragraph (d), order the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks' remuneration in respect of the employee's employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.

The calculation of weekly remuneration under the Act is different to the calculation under the Minimum Notice and Terms of Employment Act, 1973 and is governed by the Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977 S.I. No. 287 of 1977 which provides that:

(b) Where, at the date of his dismissal from an employment, an employee had less than 52 weeks' continuous service in the employment, a week's remuneration of the employee in respect of the employment shall be calculated, for the purposes of the said section 7(1)(c), in the manner that in the opinion of the Tribunal corresponds most closely with that specified in these Regulations.

The Complainant had less than 52 weeks of continuous employment with the Respondent.

His average weekly pay (excluding outstanding annual leave accrued and paid on cessation) was €559.98 gross. 

I declare this complaint to be well founded.

I order the Respondent to pay to the Complainant compensation of €1,679.94, the equivalent of three week’s pay which I consider just and equitable having regard to all of the circumstances.

Minimum notice- terms of employment-