Complainant

Respondent

Parties

Dermot  Kelly

Secure Management Solutions Limited

Representatives

Self-represented

Eamonn Gibney HR Dept

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-00063972-001

07/06/2024

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

CA-00063972-002

07/06/2024

The Complainant commenced his employment with the Respondent on 11 December 2023. His employment was terminated on 26 June 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 Respondent rejects the claims.

The Complainant submits that he commenced work with the Respondent on 11 December 2023. 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.

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

The Complainant submits that a few weeks later, following the departure of a colleague, he was offered a supervisor role at the same location which he accepted.

The Complainant submits that when he started his employment with the Respondent, there was always two guards on during the day and at night. On 8 March 2024, the Roster Administrator advised another supervisor (Mr H) that the hours at that particular location were being reduced and that going forward there would only be one guard on duty. The staff raised health & safety concerns with the Respondent as it was not safe for one guard to be on duty at any one time given the level of incidents that occurred there daily and by night. The staff were told that this was out of the Respondent’s control.

The Complainant submits that the Area Manager told him on multiple occasions that this position was for 4 years and permanent and that they were there for the long haul. The Area Manager told staff that the staff/management of the named location were very happy with the services that they were providing.

When a colleague, Mr O’G started on 23 January 2024, Thomas Kelly (Director) came on site on 24 January 2024 and told the staff that it was a 4-year contract and that their permanent contracts would be sent to them shortly. He also said that there would be 4-5 additional sites opening within the next 5 weeks. He asked for recommendations for people who might like to join the team.

The Complainant submits that Mr L, the Area Manager came on site on 19 April 2024 and told Mr H (another 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. Mr H refused to hand over his phone and man down alarm at that stage. Mr H was told that an email would be sent to staff that evening.

The Complainant submits that, unknown to him at that stage, his personal mobile number was given out to a third party - a control room - without his permission or knowledge. The Complainant attended on duty on Friday. As there was no work mobile phone, he received a call from an unknown number to his personal mobile to check that he was on duty. When the Complainant asked who the person at the end of the call was, they would not tell him. The person on the phone would not tell the Complainant how he got his personal number. He was rude.

The Complainant received a further call at 09.09am. The person on the call was very nice and polite and told the Complainant that his number had been logged to the system by the Respondent.

On 25 April 2024 the Complainant’s colleagues (but not 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, Mr H contacted the Security Operations Manager straight away. The Complainant was in the office at that time. The Security Operations Manager told Mr H that the client informed the Respondent that the local authority had cut the funding. Mr H 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 staff have received no communication from the Respondent in the form of a formal meeting as a group or as individuals to explain why when they were guaranteed 4 years’ work at this location that after 4 months the services were ceased. The Complainant submits that he was given 3 days’ notice that there would be no work after 28 April 2024. He submits that to date he has not received any notice/compensation pay.

The Complainant submits that as of the date of his referral of this claim, he was still receiving emails from the Respondent with "published rotas" which of course did not have any shifts for him and his colleagues, as all the positions offered to him would entail him travelling 2-3 hours each way to get to the locations offered and would cost him €30 each way.  Also, the positions offered were all at a lower pay rate than what he was paid up to 28 April 2024.

The Complainant submits that staff were repeatedly told by the Respondent and in particular by Mr Kelly on 24 January 2024 that there was guaranteed 4 years at the site and that the Respondent would be taking over 4-5 new sites across Limerick. Had he known from outset that the position in the particular location was only for a short period of time, he would never have given up the full-time position that he was already in.

The Complainant submits that he and his two colleagues attended the client's head office on 25 April 2024. They explained what had happened and the person they met told them that under no circumstances was the contract for anything more than 5 months. He also told the Complainant that the client had conversations with Mr Kelly about a night shift only contract which would occur in the winter.

The Complainant submits that his colleague emailed the Respondent in response to the email received from the Security Operations Manager and said that the options offered were very inconvenient and disrespectful to them. The email stated that it was very unfair to have been left jobless with mortgages, bills and families to support and the options offered did nothing to help them and did not even cover compensation. The Respondent replied to say "that it was unfortunate that our services are no longer required in Limerick, this was unexpected and completely out of our control. The email received from [the Security Operations Manager] contained all our current vacancies. Please let us know which one is the most suitable".

The Complainant submits that he has been offered other positions within the company but clearly, he was not in a position to avail of these. He submits that to date he has not received any notice pay from the Respondent given the short notice of the termination of the contract with the client.

The Complainant submits that it took him several weeks to find a new position and this new position is at a lower rate of pay than he was paid by the Respondent. The Complainant submits that this situation has caused him a great deal of stress and anxiety and has led to a flare up of his psoriasis which is making his life quite unbearable.

Summary of direct evidence and cross-examination of the Complainant

In his evidence, the Complainant said that he did not receive the email of 25 April 2024. He confirmed that his correct email was used by the Respondent. He said that a colleague rang him and asked him if he saw the email. The Complainant did not see it. He then met with the colleague who showed him a copy of the email.

The Complainant said that he rang the Area Supervisor, the Director and the Roster Administrator but none of them replied or rang him back. The Complainant said that he then sent a text to the Security Operations Manager to ring him but he did not reply or ring him back.

The Complainant said that he was off on 25 April 2024. When he went to work on 26 April 2024, no one spoke to him. The Complainant and his two colleagues went to the client’s office and spoke with a named individual who told them that there was no full-time contract.

The Complainant said that he became sick on 27 April 2024 and he rang the control room to inform the Respondent that he was unwell. He then received an email on 2 May 2024. There has been no contact since.

When asked by the Adjudication Officer, the Complainant confirmed that he was offered three alternative positions by email of 25 April 2024. He confirmed that he did, in fact, receive the email of 25 April 2024 which outlined the alternative positions.

The Complainant further stated that he did not engage with the Respondent as he had to seek new employment.

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 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 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. He did not work these shifts as he had been absent due to illness as per his email of 2 May 2024 where he stated:

“I contacted the control room on Saturday morning to explain I was sick and had been up all night, I have been unwell for a number of days with stress and worry about the situation.”

The Complainant was employed on a part-time contract of 24 hours per week. He had been serviced notice of the termination of that contract and offered shifts elsewhere, which he was not able to accept. He did not engage with the Respondent when it requested him to contact on numerous occasions between 3 May 2024 and 26 June 2024.

TIMELINE OF EVENTS

The Complainant was employed on 11 December 2023. On 15 January 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.

On 2 May 2024 the Operations Manager emailed the Complainant regarding his absence on 27 April and 28 April 2024. The Complainant replied on the same day.

On 3 May 2024, the Operations Manager emailed the Complainant clarifying the situation and explaining that there are no positions available in Co. Limerick.

On 15 May 2024, the Operations Manager emailed the Complainant again advising that the Complainant’s employment remains active and querying the Complainant’s availability to be rostered for duty in the offered locations.

On 21 June 2024, the Operations Manager emailed the Complainant again advising that his employment with the Respondent remains active and informing the Complainant that if no correspondence Is received from him prior to 12.00pm on Wednesday 26 June 2024, the Respondent would assume that he wished to cease his employment.

As there was no reply from the Complainant, his employment was terminated on 26 June 2024 and he was paid his outstanding holiday pay.

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 and he was rostered for shifts between the notification and actual cessation of the contract. He did not work these shifts as he had been absent due to illness as per the Complainant’s email of 2 May 2024.

The Complainant was notified of the termination of the particular contract and offered shifts elsewhere, which he was not able to accept. The Complainant did not engage with the Respondent when he was requested to do so on numerous occasions between 3 May 2024 and 26 June 2024.

At the adjudication hearing, it was asserted by the Respondent that, due to the nature of the security industry, cessation of a contract with a client does not necessarily mean that an employment contract is terminated. The Respondent submitted that it suggested alternative positions and only because of the Complainant’s lack of engagement, his employment was terminated.

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. While the Complainant initially denied that he received the Respondent’s email, he subsequently confirmed that the email was sent to his correct email address and he did receive it.  

I accept the Respondent’s assertion 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 was rostered, albeit he did not work due to an illness, to work on 27 April and 28 April 2024.  The Complainant was not scheduled to work thereafter.

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 and some 1 hour 54 minutes from the place of his residence (Google maps). I accept the Complainant’s position that the offers were not feasible due to their locations and associated commute, and prohibitive cost of such commute.

The Complainant informed the Respondent by email of 2 May 2024 that the offers of alternative employment were not acceptable to him. On 3 May 2024, the Respondent acknowledged and “fully” understood the Complainant’s decision and offered the Complainant assistance with his search for suitable employment in his area.

There was no dispute that the positions in the named locations no longer existed. The offers of alternative employment were clearly not reasonable and unrealistic for the Complainant to accept. The Respondent did not engage in any meaningful way but rather adopted a “take it or leave it” approach. When the Complainant decided not to take up the offer, the Respondent persisted with the fictitious employment relationship until 26 June 2024 when it terminated the Complainant’s employment.

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 had less than 52 weeks of continuous employment with the Respondent. His average weekly pay (excluding outstanding pay for a public holiday in May 2024 and annual leave accrued and paid on cessation) in the last thirteen weeks when he was scheduled to work was €682 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 €682.

The Complainant submits that he and his colleagues had to make several phone calls and send several emails to the HR department regarding their full-time contracts. He was sent a contract by a named employee in HR which said that he was a part-time and temporary employee. The Complainant advised HR that this contract was incorrect and that he was a full-time and permanent employee and he and asked for his contract to reflect same. The Complainant received an email from the named employee in HR on 15 January 2024 which stated that the contract he had received was a “standard contract” but the Complainant worked “full time and on permanent basis”.

The Complainant submits that to date he has not received his correct contract despite speaking to HR, the Area Manager (Mr L), a named Roster Administrator (Mr E), and Thomas Kelly (Director) regarding same several times.

Summary of direct evidence and cross-examination of the Complainant

The Complainant, in his evidence, said that he had been asking for a full-time permanent contract but received a part-time temporary one. He said that on 15 January 2024, he received an email from HR which 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 Respondent submits that the Complainant was provided with a contract of employment on 15 January 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.

The Complainant was sent a contract of employment to his email address, the same address he used to communicate with the WRC. The job he applied for was part-time. It is possible that it would have turned into a full-time permanent contract had a contract been finalised between the Respondent and the client.

The Complainant states that he got no formal communication about the termination of the contract with the client. However, the Respondent relies on an email dated 25 April 2024 headed Termination of Services – [named client]. The Complainant was included in the email. The Complainant was then out sick for some of the time between the notice and the termination of the services. He never provided sick certs or accepted the offer of alternative work.

The Respondent submits that it would take 1.5 hours and not 2.5-3 hours as stated by the Complainant, to travel from Limerick to Athlone. Had the Complainant availed of this option, it would have given time to look at other alternatives coming up in the Limerick area. The Complainant did not engage.

At the adjudication hearing, the Respondent stated that it was not in a position to offer a full-time, permanent contract to the Complainant. He was given a “temporary” contract, albeit the Respondent was unable to define “temporary”. The Respondent also said that the Complainant’s contract was, in fact, permanent and he worked full-time hours but the contract was not at the specific location. The Respondent was unable to clarify why the contract stated that the position was part-time and temporary rather than full-time, permanent but subject to change of place of work.

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 and seemed to suggest 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 in the email of 16 January 2024, the Respondent’s HR Administrator confirmed that the Complainant worked “full time and on 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 pay for a public holiday in May 2024 and annual leave accrued and paid on cessation) was €711 gross. 

I declare this complaint to be well founded. I order the Respondent to pay to the Complainant compensation of €2,133 which I consider just and equitable having regard to all of the circumstances.

Terms of employment – minimum notice