Complainant

Respondent

Parties

Anthony  Hayes

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-00063974-001

07/06/2024

The Complainant referred his complaint to the Director General of the WRC on 7 June 2024 pursuant to section 12 of the Minimum Notice & Terms of Employment Acy, 1973. He alleged that he did not receive his entitlements under the Act on cessation of his employment.

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 a colleague introduced him to a manager in the Respondent company regarding becoming a supervisor with the Respondent. On 2 December 2023 he received a telephone call from the manager offering him a full-time position of a security supervisor based in a named location in Limerick. The Complainant was delighted to receive the offer to become a supervisor, as having been in the security industry for over 10 years, he was keen to move up the ladder.

On 5 December 2023, along with two colleagues the Complainant met with a named employee at the site to check out the facility and see what the job would entail. After a positive meeting, with great potential for his future with 4 years guaranteed work at this location, the Complainant was happy to accept the position offered to him.

The Complainant commenced his employment on 11 December 2023. After a month in the position and after many telephone calls and emails between himself and the HR Department regarding his full-time contract, the Complainant was sent a part-time contract.

The Complainant submits that he made contact on several occasions with HR regarding his full-time contract. He was told on several occasions that the contract the Respondent sent out is a standard contract even though it stated that he would be a part-time and temporary employee. The Complainant was asked to sign it and send it back. The Complainant refused to sign it. After some time, the Complainant finally received a full-time permanent contract.

The Complainant submits that everything was working well at his location. The Complainant and his colleagues were repeatedly praised by the Respondent. The Respondent also told them that the client was very happy with their work. They were repeatedly told that they were there for the long haul and that the Respondent would be opening at least 4-5 new sites across Limerick. They were asked to keep names in mind if they knew of other security guards.

The Complainant submits that on 8 March 2024 he received a call from the Respondent to say that all security hours were being reduced from 15 March 2024 and that instead of two guards on duty per shift - day & night that they would be down to one guard per shift. The Respondent requested the Complainant to tell all the staff about the changes. He felt this was inappropriate as he was not part of management but a supervisor on site.

The Complainant emailed the Security Operations Manager on behalf of the team based at the location and asked him to attend a meeting with staff on site to discuss the reduction in hours etc. To date he has not received a reply to this email.

On 4 April 2024, the Complainant again emailed the Security Operations Manager to ask for more information about their future with the Respondent due to the reduction in hours and the rumour that they would not be at this location for much longer which was coming from the staff of the client.  Again, the Complainant has not received a response to this email.

On 25 April 2024, the Complainant received the following email from the Security Operations Manager.

"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 Complainant telephoned the Security Operations Manager straight away. The Complainant was told that the Respondent was informed that the client’s funding was cut.

The Complainant repeated to the Security Operations Manager that the staff had been repeatedly told that there was at least 4 years work at this location. The Complainant asked to see a copy of that contract. The Security Operations Manager told the Complainant that he 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 submits that, as of the date of this submission, he is still receiving emails from the Respondent with "published rotas" which do not have any shifts for him, as all the positions offered to him would entail travelling 2-3 hours each way to get to the locations offered. Also, the positions offered were all at lower pay rates to what he was paid at the Limerick location.

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 11 December 2023.

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. The date of termination of the Complainant’s employment was not available at the hearing.

The Respondent submits that it acted reasonably and openly with the Complainant. The Complainant alludes to being promised a four-year contract of employment. The Respondent did not have a contract in force with its client and while it was discussed with the client and hoped to materialise, the Respondent 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, housing initiatives and IPAS centres that are often subject to financing among other considerations. This funding is not guaranteed and can end abruptly.

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.

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,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

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 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. While at the hearing the date of the termination of the Complainant’s employment was unclear, the calculations of the Complainant’s average weekly pay furnished by the Respondent post-hearing show that the final payment (outstanding annual leave) was made to the Complainant on 6 May 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 in the last thirteen weeks when he was scheduled to work was €756.92 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 €756.92 which is the equivalent of one week’s pay.

Minimum notice