Complainant

Respondent

Parties

Killian  Murray

Synergy Security Solutions Ltd.

Representatives

Self-represented

 Internal/Self-represented

Act

Complaint

Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00052231-001

13/08/2022

This complaint pertains to the scheduling of a disciplinary meeting – the time/date it was to be held, whether it was in person or virtual, how much notice was to be given (and what constituted notice), and whether the meeting would be held at a time when the employee would be rostered and paid.

It does not pertain to penalisation under the Protection of Employees (Fixed-Term Work) Act, 2003.

The Complainant represented himself at hearing. He gave sworn evidence and was subject to cross-examination.

His complaint, as set out in the narrative in his complaint form, relates to the process of organising an date and time for a disciplinary hearing.

It is the Complainant’s position that he requested that this work meeting be carried out on rostered and paid worktime. He submits that his employer intentionally tried to force him to attend a (virtual) meeting while off duty on multiple occasions and without either fair notice or prior conversation about availability. He submits that his employer incorrectly asserted on several occasions, by email, that he failed to attend, while refusing to engage in meaningful communication with him.

He further submits that it was his employer which did not show up to the first, and only  agreed, meeting time – that was also a virtual meeting, which the Complainant attended. His employer cited technical issues as the reason for its non-attendance at the arranged meeting.

The Complainant submits that his employer removed him from the roster as well as removing his access to the staff portal, which enabled him to view his roster, when he took a sick day due to the stress of being forced to do something which he believes is wrong, i.e. work without pay.

The Complainant submits that he stated his intention to take sick days, at the height of his stressed state as a result of his request not to be contacted by email, when he was out, a request he submits HR ignored and contacted him both by email and text a day or so later. He submits that the reason he was contacted was HR was requesting he provide them with information which he had already provided approximately three (3) weeks earlier – he submits that, he was informed that he would be removed from the roster if he did not provide the information.

The Complainant submits that he made contact with his employer to reengage with the disciplinary process after one (1) sick day off and one (1) rostered day off (but communicating with the hr person who contacted him).

He submits that the main point of contact began the same process of trying to force the Complainant to attend meetings on his days off, which he resisted – again, re-iterating his position that from his perspective meetings must take place during a time that is both rostered and paid. The Complainant submits that his employer then set the meeting again for a day he usually works but removed him from the roster while stating cryptically that he would be paid for all his rostered shifts – he submits that his employer avoided direct discussion of the point he had raised specifically.

The Complainant submits that this puts him in a situation where he believes that if he does not show up to this meeting where he likely will not be, or at the very least will only be paid a fraction of what he would have earned if his roster stood, that he is at risk of dismissal on the pretext of him failing to engage with the process.

The Complainant submits that he believes this is a form of constructive dismissal; and furthermore, objects to the manner in which the employer has treated him in relation to the organisation of this meeting.

The Complainant submits that he has a large amount of documentation (emails) in which he is attempting to the meeting time sorted, as well as communications expressing his concern to the  managers and owners about the behaviour of the person who was the main point of contact, as it is his perspective that that person is trying to derail the process and force him to do unpaid work, when a virtual meeting could have been held while he worked on either of the four 12 hour shifts a week he usually works. He further submits that he suggested one day in particular which would be best suited to all parties.

In conclusion, he submits that he wanted to paid for a work meeting and now after persistent refusal of that request, he submits that his employer has forced him to attend a work meeting or likely lose his job, while also reducing his week’s pay.

Mr. Frank Walsh, Employee Relations, from the Respondent company presented the case on behalf of the Respondent.

The Respondent submits that the Complainant, Mr. Killian Murray, worked as an employee of Synergy Security Solutions Ltd from 9th August 2019 until he resigned on 13th July 2023.

The WRC complaint was filed on 13/08/2022.

The Respondent submits that on 17th  July 2022, there was an incident at City Gate Park, Mahon, Cork, which involved an exchange of words between the Complainant and a patron of City Gate Park MS, who was using the car park where the Complainant was working.

The Respondent submits that on 21st July 2022, a further incident occurred involving the same patron, and again words were exchanged.

It is submitted that that patron, MS, subsequently made a complaint to management of the Respondent, and an investigation was commenced.

It is submitted that the investigation led to a discipline process, the result of which was the Complainant’s removal from that particular site.

The Complainant exercised his right of appeal, but the findings were upheld by the Synergy Director of Human Resources and reasons were supplied in writing.

The Respondent submits that its investigation and disciplinary process is set out in its Disciplinary Policy. (Copy of policy submitted). It submits that it followed its policy, as set out – that two complaints were made by the patron, MS, and an occurrence report was submitted in relation to the second interaction by the Complainant, as well.

The Respondent submits that a full investigation was conducted. The investigation meeting was conducted by SH (Operations Manager) and was in relation to the two incidents which occurred on 17th July and 20th July 2022. (Supporting documentation submitted).

The Respondent submits that subsequent to the investigation meeting, and in line with company policies, as set out, a disciplinary meeting was then scheduled for Wednesday, August 3rd, 2022 at 1 pm. This was communicated to the Complainant by letter dated 2/8/2023. This notification also contained a copy of the Respondent company’s Disciplinary Policy document, which outlined the right to be accompanied along with notes from the investigation meeting. It also set out clearly the matters which were the terms of the disciplinary meeting.

The notice period in the Policy is “at least one day”,  and is set out at page 6, bullet point 1, of the Respondent’s disciplinary policy. This meeting planned for August 3rd was then rescheduled to 1 pm on 4th August 2022. However, the Complainant did not attend, and the meeting was again rescheduled for 1 pm on 5th August 2022.

The Respondent submits that on the evening of 4th August, 2022, having again not attended the meeting, the Complainant emailed Employee Relations complaining that the meetings had been re-arranged without discussing the matter with him. He said that this was unprofessional and that he would be refusing to attend Friday’s meeting (August 5th), as he had not been given appropriate time to get someone to attend with him. He invited ER to contact him to discuss an agreed time for the hearing. The meeting was then planned for Monday, 8th August 2022 and the Complainant was notified of this on August 5th at 12.10 pm.  The Respondent thought that the Complainant did not attend this meeting and a final attempt by email was made to hold the meeting on Wednesday, 10th August 2022. The Complainant then responded to this email, stating that he and his representative had in fact attended the virtual meeting on Monday, August 8th at 1 pm, but no employee attended on behalf of the Respondent. In his correspondence to the Respondent, the Complainant stated that the meeting had been arranged without communication to him, despite phone calls and texts when the need for notice had been discussed. He said that the Respondent’s handling of the process made him believe that “...you are intentionally not offering me genuine and fair natural justice within this disciplinary process.” He said that he was so stressed that he was unsure whether he could continue to work for the Respondent company and gave an example of how the stress was affecting him. He stated that he was taking sick leave, would not attend the meeting scheduled for August 10th and would “...contact Synergy in due course, when I have recovered from dealing with ye.”

The Complainant again made contact with Employee Relations (ER) on August 10th and stated that he was feeling better and wished to access his roster, expressing surprise that he had been ‘locked out.’

ER responded that same day, indicating that he had been taken off the roster following his reporting sick on the 8th. ER again tried to set up the disciplinary meeting for August 11th. The Complainant again responded that evening, stating that he would attend any meeting once he was given adequate notice, and it was conducted during paid working hours. He suggested the following options:-

-          Monday, when he was rostered to work.

[He spoke of his upset and that of his representative (a HR professional) at the non- appearance of the Respondent company at the meeting scheduled for Monday, August 8th.

The Respondent’s general manager replied to the Complainant on August 11th, setting out that:-

-          The meeting would be held on Monday 15th at the Tivoli, Cork and the Complainant would be paid for the duration of his shift. [The Complainant was paid for this shift on pay-week ending 1/9/2022.]

-          Management from the Respondent company were at the meeting on the 8th, but to avoid any future issues, this next meeting would be conducted in person.

The Complainant sought clarification on his roster and was informed that his roster was as per normal, with the exception of Monday 15th, when he had to attend the disciplinary meeting and would be paid for his full shift.

On Monday, 8th August 2022 at 18.14, the Complainant emailed to say that he ” … will be taking a sick day tomorrow, due to stress. Do not contact me or I will annihilate you with legal action.”

On 10th August 2023, Mr. Ken O Reilly, Managing Director received an email from the Complainant in which he complained that a named staff member was unwilling to engage meaningfully and intentionally ignores requests/suggestions for meeting times and dates, instead setting dates when the Complainant is not rostered, ignoring concerns about being forced to do unpaid work.

The Respondent company’s Managing Director replied that the Respondent’s General Manager had attended the virtual meeting on August 8th but nobody else was there, and accepted that it may have been a technology issue. He explained that the Complainant had been removed from the roster, following his emails wherein he made threats and spoke of being stressed – that this was done for the Complainant’s benefit. He also stated unequivocally that the Complainant had at no stage been suspended from his rostered duties, but that a date and time would be set aside for the meeting at the appropriate time.

On August 12th, the Complainant again wrote to the Managing Director, stating that a named staff member from Employee Relations (ER) was again trying to make him do unpaid work on Monday and has at every stage tried to disrupt this simple process, leaving the Respondent open to legal action. This correspondence was out of office hours and was picked up by the MD who responded, advising the Complainant  to attend the scheduled meeting, and to take up any further grievances he might have through the chain of command.

The disciplinary meeting went ahead on 15th August, 2022 at Clayton Hotel, Silversprings, Cork. and minutes were typed.

On 19th August, 2022, a letter issued from Employee Relations to the Complainant stating that, having taken his explanation into consideration, a decision had been made to remove him from the City Gate Park site.

On 25th August, 2022, the Complainant wrote that he had not been paid for Monday, August 15th as agreed. Employee Relations wrote to Payroll, stating that it had been agreed; and the Complainant was paid on the weekend of 1/9/22.

On 26th August, 2022, the Complainant again emailed looking for a call back, as he wished to lodge a grievance.

On 28th August, 2022, Employee Relations replied and provided a copy of the Respondent’s Grievance Procedure process. The Complainant then asked who his supervisor was and was so advised. Following annual leave, ER informed the Complainant that he could lodge his grievance with either ER or with the General Manager. The Complainant asked about stage 1 and was advised as to whom the Grievance should be addressed.

The Complainant appealed the outcome of his disciplinary meeting to the Respondent’s Director of HR, and this appeal was heard on 28th September, 2023.          

The Director of HR responded to the Complainant on 19th October, 2022, indicating that the decision would stand.

On 26th October, 2022, the Complainant wrote to HR seeking a copy of the complaint made by the patron in the car park and also sought the travel policy for work.

On 4th November, 2022, the Complainant again sought these items and also stated that he had not received his signed copies of the notes from the appeal hearing and that he never got a signed copy of his contract which he needed for his records.

On 9th November 2022, a response issued to the Complainant in relation to travel to work. It stated that his place of work is as per your roster and there is no payment for going to or from work. The Complainant replied that he wanted the policy on travel when employees travel away from their usual workplace and again sought a copy of the complaint made against him. There are also other issues addressed in these emails which do not form part of the Complainant’s complaint to the WRC.

On 22/11/2022, a comprehensive response was issued to the Complainant to address all issues recently raised by him with Respondent management.

Conclusion

This matter arose following two complaints from an aggrieved member of the public, in respect of the Complainant’s conduct and interactions with her.

The Respondent, at all times attempted to follow their policy in relation to disciplinary matters by holding the investigation and disciplinary meetings at the earliest possible opportunity (speedily and in a fair, uniformed and consistent manner (as per the company’s disciplinary rules and procedures.)

It is submitted that while given the right to be accompanied by a fellow employee, Trade Union official, or Legal Professional, the non-availability of such representation for any prolonged period cannot become an obstacle to the finalisation of this process.

It is submitted that the notice period in the Policy is “at least one day”, and that this policy was not breached at any time.

The Respondent has never disputed the Complainant’s assertion that he did in fact attend the virtual meeting on 8th August, 2022. It is submitted that, once he made his case, alternative dates for a hearing were immediately put in place, though initially not accepted.

It is submitted that once the matter was investigated and heard, the appeal process provided was utilised and a final determination made by the Respondent company, as envisaged in the policy.

It is submitted that as the Complainant continued to be a valued employee of the Respondent company, for a further year, up to his voluntary resignation in July, 2023, the idea that delays in this disciplinary process were a foil to dismiss him, seems inaccurate at the very least.

It is submitted in relation to the issue of payment for the day the Complainant attended the disciplinary meeting, that he was informed that he would be paid for that day and subsequently on 1/9/2022, was paid in full.

It is therefore respectfully submitted that there is no case to answer, in this instance.

At the hearing, the Adjudication Officer explored with the Complainant that he had filed a complaint for ‘penalisation’ under the Protection of Employees (Fixed-Term Work) Act, 2003. He confirmed that the nature of his complaint pertained to the fact pattern as set out, only, and that the essence of his complaint was the attempts by the Respondent company to organise a disciplinary meeting for a time when he was not rostered to work and would not be paid. He re-iterated his objections to the manner of the communications he had received, in particular from one named individual; and to what he perceived to be attempts to provide insufficient notice for the meeting, to contact him when he was off work, and to schedule the meeting for a time outside of paid, rostered, work time.

He confirmed that ultimately the meeting had proceeded in person, and he had been paid – both those facts were common case - as per the agreement he made with the company in relation to it.

I find for the Respondent. I find that this complaint is not well founded.

Disciplinary Meeting; Paid to attend; Rescheduling; Notice;