Complainant

Respondent

Parties

Zlatko  Lazar

 Securway At Risk Security Group Limited

Representatives

Self-Represented

Self-Represented

Act

Complaint Reference No.

Date of Receipt

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

CA-00055606-001

20/03/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055606-002

20/03/2023

The Complainant commenced employment on 21st July 2021. At all relevant times, the Complainant’s role was described as “security personnel”. For most of the Complainant’s engagement he worked 40 hours per week and received an average weekly payment of €466.00. The Complainant’s employment terminated following his resignation on 5th November 2022.

On 20th March 2023, the Complainant referred the present complaint to the Commission. Herein he alleged that he was unfairly dismissed by the Respondent following an unsubstantiated complaint by one of their clients. In this regard, he stated that that actual reason for his dismissal was the fact that he had raised several issues regarding unpaid wages. In contesting this position, the Respondent submitted that the Complainant was removed from one of their client’s sites on the client’s instruction, and that he was offered work elsewhere, within the terms of his contract.   

A hearing in relation to this matter was convened for, and finalised on, 15th August 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either party in the course of the hearing. The Complainant issued a substantial submission in advance of the same. The Complainant gave evidence in support of his complaint, while a director of the Respondent gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross-examination by the opposing side.

No issues as to my jurisdiction to hear the complainant were raised at any stage of the proceedings. As the face of dismissal is in dispute, the Complainant gave his evidence first.

The Complainant submitted that he was engaged as a security operative by the Respondent organisation. At the outset of his engagement, the Complainant was assigned to a large supermarket. Following a number of weeks assigned to this location, the Complainant was then assigned as a security guard to a regional hospital.

Initially, the Complainant believed that he performed his duties well at this site. In this regard he stated that he had a good relationship with the clinical staff of the hospital and received praise on numerous occasions. Notwithstanding the same, in early October 2022, the Complainant was requested to leave the site by non-clinical member of management. In this regard, he submitted that he was blameless of any wrongdoing on this occasion, and still remains somewhat unclear as to the rationale for his removal from site.

Throughout the Complainant’s employment, he raised numerous issues regarding his rate of pay and other statutory entitlements. In evidence, the Complainant submitted that the rationale for his removal was retaliation for raising these issues. In this regard, he submitted that the Respondent made no material efforts to investigate the allegations raised by the Respondent’s client and simply allowed the damaging allegations to stand without advocating on behalf of their employee.

While the Complainant did accept that he was offered a role elsewhere by the Respondent, he submitted that he was assigned to the hospital and had recently changed his place of residence as to be closer to location. As the Complainant believed that the Respondent had no intention of investigating the allegations raised by their client, he duly resigned his employment.

In summary, the Complainant submitted that the Respondent identified him as a troublesome employee, and were willing to allow an unsubstantiated, unfair allegation to stand without investigation or any form of positive representation on their part. In such circumstances, the Complainant submitted that the was entitled to resign his employment and consider himself to be constructively dismissed.

From the outset, the Respondent strenuously denied the Complainant’s allegations. In this respect, they submitted that the business of the Respondent was to assign their employees to various client sites. While some employees might remain at some sites for a period of time, such allocation is dependent on the needs of their clients and no employee is guaranteed a permanent place of engagement.

In this regard, it was submitted that this was the position regarding the Complainant. For a number of weeks at the outset of his employment, he was assigned to a supermarket and thereafter re-assigned to a location at a regional hospital.

The Respondent submitted that in October 2022, they received a call from a facilities manager within the client organisation. In this respect, they submitted that they no longer wished for the Complainant to be assigned to their premises. In evidence, a Director of the Respondent submitted that he sought further details from this client so as to allow him to investigate and potentially advocate on behalf of the Complainant, however no such information was provided.

As no wrong-doing had been established by the client, the Respondent took the view that no disciplinary action was required. In this respect, they sought to re-assign the Complainant to an alternative site, within the terms of the contract. Shortly after the Complainant’s removal from the site, the Respondent secured an alternative location for the Complainant. When informed of the same, the Complainant advised that he did no wish to accept the same and that his strong preference was to return to the hospital site.  Shortly thereafter, the Complainant elected to resign his employment.

By submission, the Respondent denied the Complainant’s allegations in respect of constructive dismissal. They submitted that the Complainant had raised various issues regarding his statutory entitlements, particularly under the Organisation fo Working Time Act. In this respect they submitted that the Complainant was perfectly entitled to raise such issued and further submitted that the same were answered in due course. The Respondent absolutely denied that the Complainant’s raising of these issues in any way contributed to his alleged dismissal. Regarding the incident itself, they submitted that they had limited control over their clients in this regard and stated that it was entirely within the client’s power to simple insist that an employee be removed from site. They submitted that following the same, they sought to re-engage the Complainant elsewhere, within the terms of his employment, but that the Complainant simply refused this offer and elected to terminate his contract of employment.

In the present case, the Complainant has alleged that his unfair removal from a client site, and the Respondent’s failure to either investigate the incident, or advocate on his behalf, rendered the conditions of his employment intolerable to the point whereby he was entitled to resign and consider himself dismissed. In the alternative, the Respondent has submitted that they have limited ability to investigate allegations made against their employees by their clients, and that they sought to re-assign the Complainant within the terms of his contract.

In this regard, Section 1 of the Unfair Dismissals Act, 1977, defines constructive dismissal in the following terms,

“…the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

In Berber v Dunnes Stores [2009] 20 ELR, the Supreme Court held that,

“There is implied in a contract of employment a mutual obligation that the employer and the employee will not without reasonable and proper cause conduct themselves in a manner likely to destroy or seriously damage the relationship of confidence and trust between them. The term is implied by law and is incident to all contracts of employment unless expressly excluded. The term imposes reciprocal duties on the employer and the employee.”

In Western Excavating (ECC) Ltd v Sharp (1978) IRL 332 the Court stated that,

‘If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so, then he terminates the contract by reason of the employer’s conduct.”

In the matter of A Former Employee -v- A Building Supply Company ADJ-00022607, the test to be applied was summarised as follows,

“…the correct approach to be taken by an adjudicator in considering whether there has been a constructive dismissal is: whether there has been a repudiatory breach by the employer, or, if there has not been a repudiatory breach whether the employer engaged in conduct which made it reasonable for the employee to terminate his contract.”

Regarding the present case, much of the Complainant’s concerns relate to an allegation of wrong-doing raised by a client of the Respondents. In this respect, the Respondent is correct in their assertion that they have an extremely limited ability to investigate any such allegations raised by third parties. It is an unfortunate reality of such commercial arrangements that the client may simply insist that a certain individual be assigned elsewhere without adhering to any form of internal procedure or respecting the rights of the individual in question. This undoubtedly creates an unfairness towards the employee, in that they may be accused of wrong-doing and may suffer the detriment of having their place of work changed without any opportunity to defend themselves or clear their name. Whilst this is undoubtedly unfair, the cause of the unfairness does not rest with the Respondent, but with the third-party client, over which they have limited to no control. This is not to say that in such situations, the Respondent has no obligation towards their employee. In this regard, they would be expected to ascertain as much information as possible, advocate on behalf of their employee and make all reasonable effort to secure an alternative engagement.

Regarding the instant case, it is apparent that the third-party client of the Respondent elected to simply insist that the Complainant not be assigned to their site, effectively preventing any further form of investigation or advocacy occurring. In addition to the foregoing, I note that the Respondent secured alternative employment for the Complainant shortly following this instance. While the Complainant was entitled to refuse the same, the Respondent cannot be said to have acted inappropriately in this respect.

In evidence, the Complainant submitted that the actual reason for his dismissal was the fact that he had raised numerous issued regarding his statutory entitlement. In this respect he stated that this was the actual reason for the Respondent’s failure to investigate the wrong-doing. Having reviewed the relevant evidence in this regard, I cannot find that this is the case. In so finding, I note that the Respondent, far from seeking to remove the Complainant for their employment, went to the effort  of securing and offering him an alternative role within the organisation.

Having regard to the totality of evidence presented, I find that the Complainant has not discharged the burden of proof imposed by the Act. As a consequence of the foregoing, I find that he was not unfairly dismissed.

CA-00055606-001 Complaint under the Terms of Employment (Information Act)

Regarding this complaint, the Complainant accepted that he signed a contract of employment, but did not receive a copy when he requested the same. By response, the Respondent submitted that the Complainant signed a contract of employment and opened the same during the proceedings.

Having regard to the foregoing, it is apparent that the Respondent has complied with the obligations imposed by Section 3 of the Act, and the complaint is deemed to be not well-founded.

CA-00055606-002 Complaint under the Unfair Dismissals Acts

I find that the Complainant was not unfairly dismissed.

Constrictive Dismissal, Third Party Client, Re-assignment