Adjudication Reference: ADJ-00045241
Parties:
| Complainant | Respondent |
Parties | Mark Merrigan | Milgan & Dilgan Limited |
Representatives |
| Hugh Hegarty Management Support Services (Ireland) Ltd |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00056030-001 | 05/04/2023 |
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-00056030-002 | 05/04/2023 |
Date of Adjudication Hearing: 19/09/2023
Workplace Relations Commission Adjudication Officer: David James Murphy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant worked as a concierge in an apartment complex. He was hired by the facilities management company which contracted by the management company run by the residents. The Respondent won that contract in June 2022 and the Complainant’s employment transferred to them.
The Complainant alleges that he was summarily dismissed about 5 months later. The Respondent disputes this and submits that the Complainant was put on temporary lay-off after the client refused to let him on site. The Respondent alleges that the Complainant resigned after refusing to take up alternative roles or agree a redundancy payment. |
Summary of Complainant’s Case:
The Complainant attended the hearing and gave evidence under affirmation. He and his colleagues were told a month in advance that their employment was being taken over by another company. They were only told a week in advance that it was the Respondent. Their pay period was altered, and the Complainant refused to sign the new contract. He got extremely well with the residents and frequently went over and above for the client. There were a lot of issues after the transfer. He tried to take leave on one occasion, but it resulted in the property not being looked after as cover wasn’t arranged. The Respondent began to allege that he wasn’t carrying out his duties but this wasn’t the case. There was a new timekeeping app. One of the three staff was refused to use this app and the Respondent presumed that all of them were refusing and accused them of not doing their work. The Complainant pushed back against this and sent emails to HR. This resulted in a dispute with Mr McDonnell, the operations manager, in which he found Mr McDonnell intimidating. Ultimately he was dismissed for speaking up. |
Summary of Respondent’s Case:
The Respondent made written submissions and Mr Ronan McDonnell, operations manager, gave evidence under affirmation. He outlined that there were a number issues after the Respondent took over the site. The client asked to make sure there was a staff presence on site all the way through their shifts and that they weren’t leaving early. There was also an issue regarding people not wearing uniforms. Collectively these issues disrupted the operation and he and other management would have to visit the site regularly. The Complainant had been extremely aggressive to him on one of these occasions. He wanted to go home for his lunch break and would argue about specific tasks. The client became aware of this and was extremely upset with service. The client made the decision to exclude the Complainant from their site. Mr McDonnell asked them to reconsider. When they would not he sought to find an alternative role for the Complainant. Normally jobs in their industry are quite transient. However it became clear the Complainant didn’t want any alternative role so they tried to agree a redundancy payment. The Complainant resigned on the 24th of January 2023. |
Findings and Conclusions:
Unfair Dismissals Act CA-00056030-001 The Complainant was transferred to the Respondent in June 2022. At that time he had worked at the client site for about 8 months. The Respondent has provided evidence that they had some issues with the Complainant as well as other staff. The Respondent was engaging with the client the Complainant to resolve these but on the 29th of November 2022 the client issued an instruction, by email, for the Complainant to cease attending their premise. This request appears to have come straight on the back of information given to the Client by the Respondent about their interactions with the Complainant. The Respondent notified the Complainant of this on the 1st of December 2022. The Complainant’s contract gave the Respondent the right to redeploy him to a different site. Five days after they removed him from the client site they sent him an email to notify him that they had alternative employment and wanted to meet in person to discuss it. He declined the offer to meet and asked for the role to be communicated by email. The Respondent replied to this outlining potential roles. One of these jobs involved similar responsibilities to the Complainant’s previous role and similar pay. However, the Complainant refused to engage further on this possibility instead seeking reinstatement at the pervious client site. Throughout this process it is clear that both parties considered the Complainant on unpaid lay-off. The Complainant accepted this in evidence. The parties continued to engage about the possibility of redundancy pay and then sought to agree an exit package. When these efforts failed the Complainant resigned. I am cognisant of the possibility that employees in the Complainant’s position are vulnerable to being terminated indirectly by an employer on the basis of a client refusing to let them onto their site. However, I do not think this is what happened in this case. The Respondent was entitled to redeploy the Complainant and they tried to do so almost immediately after the client decided they didn’t want the Complainant on site. I am not satisfied that the Complainant engaged in this process appropriately and he does not seem to have got on particularly well with his employer. I am satisfied that he was on a period of unpaid lay-off. While his contract does not allow for this that does not necessarily mean the Complainant was dismissed. He ought to have been paid while on lay-off or at least for the short period until the Respondent had offered him a suitable alternative role and he declined to engage further. However, this is not a payment of wages act complaint. TUPE Regulations CA-00056030-002 The Complainant’s case under the TUPE regulations is less clear. Generally he points out that he was replaced by a worker on lower pay and that this was the breach of the regulations. I am not satisfied that he has made out a case, particularly as I do not agree that he was dismissed. The Complainant did not raise his unpaid lay-off as a basis for a TUPE claim. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00056030-001 I find that the complaint is not well founded. CA-00056030-002 I find that the complaint is not well founded. |
Dated: 29/01/2024
Workplace Relations Commission Adjudication Officer: David James Murphy