Recommendation
Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001991
| Worker | Employer |
Anonymised Parties | A Security Guard | A Security Company |
Representatives | Killian McGovern BL | Danny Ryan BL |
Dispute:
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00001991 | 17/11/2023 |
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Date of Hearing: 13/01/2025
Procedure:
In accordance with section 13 of the Industrial Relations Act 1969 (as amended), this dispute was assigned to me by the Director General. At a hearing on January 13th 2025, I made enquiries and gave the parties an opportunity to be heard and to put forward their positions in relation to the dispute.
The worker was represented by Mr Cillian McGovern BL, instructed by Ms Lara Kennedy Jones of Crushell and Company, Solicitors. The employer was represented by Mr Danny Ryan BL. Mr Ryan was accompanied by the employer’s head of HR, a senior HR business partner and a key account manager.
As the subject matter is a dispute under section 13 of the Industrial Relations Act 1969, the hearing took place in private and the parties are not named but, in accordance with the Act, are referred to as “the worker” and “the employer.”
Background:
The worker is a security guard and he commenced employment on December 19th 2019 with a registered security company. He was assigned to a job on the construction site of a data centre. On March 29th 2021, under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (TUPE), he transferred to the employer and he continued in the same job. Sometime after his transfer, he was assigned to a job at a data centre that was already up and running. In January 2022, he was found to be asleep during his shift and, following a disciplinary investigation, in February 2022, he was issued with a final written warning and moved to a different client’s site. The worker’s dispute is about the severity of the sanction of a written warning. He claims that his employer “jumped straightaway to a final written warning.” At the hearing, the worker said that, with the support of his union representative, he appealed against the issuing of the final written warning, but the warning was not overturned. Instead, it remained on his file until February 2023. The worker submitted this dispute to the WRC on November 17th 2023. In his submission on behalf of the employer, Mr Ryan argued that, as the final written warning expired in February 2023, this dispute is over. |
Conclusions:
The disciplinary hearing which was included in the employer’s company handbook provides that, “If following the first written warning, there is insufficient improvement, or if the first act of misconduct is sufficiently serious to warrant missing the first two stages of the procedure, you will receive a final written warning specifying the nature of performance or conduct issue, the remedial action required and the time period in which the required standard must be achieved. This will also state the consequences of a failure to improve. A copy of the final written warning will be filed in your personnel records and again will remain valid for 12 months.” It is apparent from this that the procedure provides for a move to a final written warning, or, in certain circumstances, to a dismissal, if the conduct is regarded by the employer as sufficiently serious. The conduct of the worker was serious enough that the employer decided to issue him with a final written warning. I understand from what the worker told me at the hearing that he appealed against the severity of the warning, but without success. It is my view that the conclusion of the appeal was the time to submit this complaint to the WRC and that there is no merit in me conducting an investigation now, when the warning has expired and the worker has decided, for personal reasons, to move to a new employer. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute.
I have considered the issues raised by the worker in this dispute and I recommend that no further action is taken by him or by the employer in relation to the matter. |
Dated: 23rd of January 2025
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Key Words:
Expiry of a written warning |