Complainant

Respondent

Parties

Brendan  Buckley

Securitas Security Services Ltd

Representatives

  Self

Robin McKenna IBEC

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-00061414-001

07/02/2024

The Complainant alleges he was constructively dismissed from his employment. The claim is contested.

The Complainant took the affirmation and gave his evidence as follows:

The Complainant commenced work with Respondent on 06.08.2006.  He received and signed his contract on the 3rd March 2006. He got another contract in 2008.He signed that contract. He accepted under cross examination that in that contract, 2008, there was a condition of his employment that he agreed to work at any the Companies sites within a reasonable travel distance from his home.  The Complainant stated that he wanted positions that were close to his home. That was what was in his 2006 contract. He accepted under cross examination that he did sign the 2008 contract but none the less he did want positions close to his home.  

In his contract his hours of work were 39 hours between Monday and Sunday nights. He was originally paid €9.61 but at the time of him leaving it was € 12.66 p/h.

The Complainant stated that he had a contractual right to work Sundays. He did accept under cross examination that his contract is silent on the issue of working Sundays. In relation to public holidays, it was accepted under cross examination that he did not have a contractual right to work pubic holidays. In relation to day shift, the Complainant states that he agreed with the Respondent that he could work day shifts, but again under cross examination it was conceded that his contract is silent on that issue.

Grievance policy: In March 2008 the Complainant signed that he agreed to and understood the grievance policy. He did use that policy in 2022 when he sent a grievance to Michelle Collins.  He got a decision. He did not appeal it.

On the 27th Sept 2022 at 4.30pm Mr Darren O Brien (branch manager) and Paddy Cathal ( assistance branch manager) called into the office. The Complainant had not been informed that they were coming and was not informed that his employment would be ceasing. They came in and told the Complainant he would be moved to “electronic art” in Galway Saturday 1st October at 7am – 7pm. He informed them that he had no transportation and there were no buses at that time. Darren O’ Brien said that he could change the start time to 8am. That was his normal start time. The start time on the roster by the Saturday evening was still 7am. He arranged a lift to Galway. He got there at 6.55am. He waited outside the main entrance for 5 mins but there was nobody to let him in. Eventually the security guard inside came to the door and asked him what was happening. He said he was there for training. She said that she had not been informed that he was coming. She would have been the one responsible for training him. He felt he was on the back foot from the start. He asked her to contact Darren O’ Brien but she did not. He was there on a Saturday and Sunday so there was very limited opportunity for training as there was nobody there. He didn’t get any assignment instructions either. He also couldn’t log into the security camera. He finished on the Sunday. He was rostered again on the Wednesday 5th October. He was rostered with James Fahy. He had worked with him before, and they got on really well. On the 6th October, Thursday he arrived at 7am. He was down for training that day. Gulshan was there she was on the phone to her husband. She was discussing the job and that the Complainant was on site and she wasn’t happy about it because she was being moved to HP.  Joe Collopy arrived at 11.30am. He came over to the Complainant and asked where Gulshan was. He went to talk to her. When he came back the Complainant handed over all of this documentation from his previous contract. That evening when he had finished and was heading for home when he got a call from Joe Collopy. He told him he was being moved from the site with immediate effect. He asked why. He was told that he would receive a call tomorrow explaining why. Then he got an email at 19.21 from Dara O’ Brien asking if he had any idea what this was all about. He replied that he had no idea what it was all about. He asked if he was free for a call, he said he was but he never got a call.

He was moved off the site to another site at Celestica. When he arrived the officer on site was not aware that he was arriving. He told him he was sent there for training. He got really annoyed and told him “to get the fuck out of there”.  From 8.30am to 12 noon he just sat there as he had no idea what he was supposed to be doing there. He called Joe Collopy and found out that he was actually on site in building 1. He informed him that he had received no training and was verbally abused. He also had no documentation for the role. During the week while he was there, he was informed by the maintenance man that building 2 was being stopped (not maned). The company had already been served with the 30 day notice so they were aware that building 2 was not going to be manned in the future. He raised a grievance on the 24th October. Under cross examination he accepted that the statement of facts prepared for this hearing contained a lot of information that was not part of his grievance. He had been removed from the bank holiday shift 31st October. He had been previously rostered for it up to and including the Saturday 22nd. He also wanted to know why he was removed from EA games. The person in charge of the roster said he would display it up on the wall. However, by Saturday evening the Monday shift had been removed. He was told his roster was changed because of a personnel issue. There were no issues. He was just removed off the roster without notice. When cross examined, he accepted that he did find out about it but it was very short notice.  The grievance was heard and he received 8 hours pay for the bank holiday. He wanted full clarity on the reasons why it was changed but he didn’t get that.  He also wanted a reason has to why he was removed from EY games. He didn’t get that either. He was told that he wasn’t “ a fit “ for the site. He decided to let it go.

On 06.03. 2023 at 11.44 the Complainant sent an email to Ray Hoare entitled “grievance unresolved”. He did not get a response, so he invoked the grievance process. He requested that the matter be dealt with in five days in line with the policy. It was not.

On 23rd March 2023  there was a meeting scheduled with Michelle Collins. That meeting had to be cut short as the Complainant wasn’t allowed to say what he wanted. Under cross examination it was put to the Complainant that he kept interrupting Ms Collins and he wouldn’t let Ms Collins speak.  The Complainant stated that the meeting notes about his interruptions was a reasonable reflection of the meeting but he denied that he was shouting. He was trying to get his point across.

The Complainant was frustrated because he flet that the matter was not being dealt with correctly and Ms Collins was not investigating the matter as she should. He wasn’t talking to the correct people.

On Thursday 3rd November the company emailed him stating that the contract with Celestica building 2 was coming to an end 4th November.  He was told he would be paid for his contractual hours until further notice. 

4th November 2022 the Complainant went out on sick leave. 6th July he returned to work.  He had a meeting with Ms Collins and Mr O Brien. He recorded the conversation covertly. He said that he is entitled to record these conversations as he was in his private home. He denied that he did anything wrong. After that conversation with Ms. Collins he had a call with Niall Dempsey. He had to do that because Ms Collins did not have the information he needed. He was due to return to work the following week.

10th July 2023 13.26 The Complainant received that email from Ms Collins. That email is set out in the submissions.  

8th August 2023 the Complainant emailed Ms Collins   “ as previously agreed I agree to accept a site at …………” The Complainant stated that he was site specific. He was an SO on a specific site. However, under cross examination he accepted that that is not in his contract. The Complainant did accept the Aviva site. However, he was only there for two weeks because it turned out that he was only covering for someone who was on sick leave.

3rd  November was his last day. He was offered hours in DeCare Dental in Claremorris. He was living in Galway city at that time. He had moved there because of his last contract.  It was too far away from Galway. He commenced at 7am and it was just too difficult to get there using the bus. The contract says “within a reasonable distance”. It isn’t a reasonable distance. It about 130km round trip. The contract hours weren’t suitable either. On the 4th November he informed the Respondent he was now living in Galway and Claremorris was too far away.  

23rd November he was paid for 42 hours. He is paid 39 hours per week. He should have been paid another 36 hours. He then went out on sick leave on the 24th November for seven or eight months. All of that was certified. It was work related stress. Then in July he got a role he was happy with. That was in Aviva in Ballyman. He was told that there would be weekend work and it was full time.  It didn’t include bank holidays or weekend work he later found out. His first week did but that was due to very specific reasons.  He also found out he was backfilling the role for someone who was out sick.  He didn’t get a roster for a week in August. He felt he couldn’t go through this again, so he resigned. He did not raise a grievance about it.

He got a new job on the end of August. He was out of work for three weeks.  His salary is the same as it was with the Respondent.

Darren O’ Brien – affirmation

Mr. O Brien is the Protective Services Manager.

He first had contract with Mr. Buckley when his contract ceased in Avia. They informed us that the client no longer needed the Respondent services. All of the staff were informed, Three in total including Mr, Buckley. Mr Buckely went to EA sports. He worked there for two weeks. The client requested that the Complainant be removed from the site. He then went to Celestica. 11 Oct – 4 Nov 2022. Again ,the client stated that they no longer required security in building 2. The Complainant was the one officer affected. Mr O Brien informed the Complainant that his services were no longer required there, and they would try and find him a new position.

In December he was offered EA. The Complainant stated that he had emailed asking for details of the position, but Mr O Brien does not recall that. He refused it because it was door security and there was no sitting work. The Respondent does not have a door licence. The Complainant was wrong about that. He was to be sitting at a security desk in the lobby of the premises. The Respondent thought that would be a good fit for him. The hours of work were 36 – 48 hours per week. 12 hours shifts.

In July 2023 the options available were D Care and Aviva and one other. He was offered D care. He said that he had no transport and couldn’t get here. At this point Mr. Dempsey got involved.

Joseph Collopy – Affirmation.

Mr Collopy is 19 years in the security industry and he is the security manager. He looks after the sites and those working on them.

Mr Buckley started in EA sports. He worked there for about one and a half weeks. The client contact Mr Collopy by phone and she said that Mr. Buckley was not a proper fit for the company and asked for him to be removed. He asked for that in writing, but they refused to give it writing.  Because he had nothing in writing he could not carry out an investigation. He informed Mr O Brien of the situation. Mr. O’ Brien tried to find alternative work for him. He had no further involvement with him.

In cross examination the Complainant stated that he put in for holidays, but Mr Collopy did not sanction them. Mr Collopy stated that the first time he heard of the holiday issue was when he raised a grievance about it.

The Complainant asked Mr Collopy if he had informed Celestica that he was starting when he did. Mr Collopy said that he had. The Complainant argued that not alone did Mr. Coleman  not know he was coming  but they refuse to train him when he got there. He spent the first few hours there not having a clue what to do. Mr. Collopy was on site that day and he dealt with the issue immediately, showed him around and got him settled in.

Niall Dempsey – Affirmation.

He is protective services branch manager. He knows Mr Buckley for a number of years. He has worked with him in different roles over the years.

He first came involved in the issue when Ms Collins contacted him to see if there were any positions that might suit Mr. Buckley. That was in July 2023. He emailed her to tell her that he had a position in Galway city with  Aviva and he thought it might be suitable. He got a call from Mr Buckley. They discussed the Aviva site. He updated him on the site and told him the site was an office based role, 7am-8pm, 13 hour shifts and there was no weekend work. He wasn’t happy with that. He asked about bank holidays and weekends. He said that 7am was too early because he was travelling at public transport. He was told he would have to start at 7am. Mr. Dempsey emailed Ms Collins setting out the details of his meeting with Mr. Buckley. Then the Complainant contacted the Respondent stating that he was willing to give the Aviva a go. He started on 28th July 2023. Mr Dempsey was there that day. He greeted him, showed him around and explained what he was to do. He seemed happy with that. He seemed happy in the role as there were no complaints or emails outlining issues. It came as a shock to find out from Ms Collins that he had resigned on 9th August.

The Complainant stated that he did not receive a roster for the week commencing 2nd August. Mr. Dempsey was not aware of that. The Complainant did not contact him to say there was an error in the roster.

Michelle Collins -  Affirmation.

Ms. Collins is the HR director. She has been with the Company for 20 years.  There are 1200 employees. Approximately 1150 of those are security officers. Alarm monitoring, CCTV, access and egress, customer service took up most of her time. The Complainant originally work on the same site for a number of years. He was moved from Nortel in October 2022. Post covid, that client revaluated there need for security. They cancelled their security contract. The Respondent had to find a new site for the Complainant. He was moved to EA sports. He was there for only one and a half weeks. That in of itself was unusual. He was then moved to Celestica. They reduced their hours, so the Complainant had to moved again.

The Grievance procedure is in the employee handbook. A grievance can be raised by talking to a manager or writing into the company. The procedure is set out at appendix 16 of the Respondent submissions. The Complainant signed a declaration 3rd March 2008. Prior to signing it he was given a copy of it with the declaration form and was asked to read it all and ask any questions they have before they sign it. He signed it without asking any questions.

His raised a grievance in October 2022. It was in relation to roster hours, shifts and bank holidays. Ms Collins replied in November 2022. He was informed that Mr Collopy would be contacted. In relation to hours of work he would be paid for any shortfall in the contractual hours. He was paid for 8 hours. The rostering is linked to payroll. It should happen automatically but if it doesn’t, they will be paid in a week or two.  The investigation with EA, this was a verbal conversation with the manager. There was no investigation because it was the clients wish to have him removed. He was told that the Respondent was going to try and find him a new role. An email was sent to Mr Buckley outlining all of the issues and findings.  He did not appeal that. Based on that Ms Collins assumed the issue was closed. However, the MD, Mr Ray Hoare received an email from the Complainant outlining “unresolved grievances”.

Ms. Collins then had a meeting with the Complainant about the issues raised with Mr Hoare. He was shouting and disruptive. He was unprofessional. The meeting had to be terminated early because of his behaviour.

He was deemed fit to return to work on 3rd July 2023. Mr Buckley submitted a return to work certificate. She replied stating it was great news. He was contacted to arrange a return to work meeting. Ms Collins then spoke to the branch managers to see where there were available positions in the Galway area. On the 6th July a Microsoft teams call was arranged. Ms Collins explained there was role available in Aviva in Galway. Mr Buckley spoke with Mr Dempsey. The Complainant had all sorts of requirements in relation to hours of work, weekend work, public holidays  etc. His requests were not normal. It made it extremely difficult to find him a position. Ms. Collins conversation with him was very different to Mr. Dempsey’s conversation

 Ms Collins was trying to set out the efforts that were being made to find him a position and asking him to meet the Respondent halfway. He did return to work for a short period before he resigned. Part of the issues outlined in the resignation letter had not been notified to the Respondent. He said that there was a shortfall in his hours. If had he contacted his manager about that it would have been rectified immediately.

The Complainant has stated that certain guarantees were given to him in relation to weekend work etc. The Respondent is never in a position to give such guarantees. That is why the contract is phrased the way it is.

The Complainant stated that he had recordings of meetings with the Respondent. GDPR is massive within the security world. He has been trained in relation to GDPR so he was aware that the recording of the meeting was not appropriate.

Section 1 of the Unfair Dismissal Act defines constructive dismissal. It is defined as:

“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 the 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”

The burden of proof, which is a very high one, lies on the Complainant. He must show that his resignation was not voluntary.  As is set out in Western Excavating ECC Limited –v- Sharp, the legal test to be applied is “an and / or test”. Firstly, I must look at the contract of employment and establish whether or not there has been a significant breach going to the root of the contract.

“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 I am not satisfied that the “contract” test has been proven then I am obliged to consider the “reasonableness” test

“The employer conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, then the employee is justified in leaving”

Furthermore, there is a general obligation on the employee to exhaust the Company’s internal grievance procedures as is set out in McCormack v Dunnes Stores, UD 1421/2008:

“The notion places a high burden of proof on an employee to demonstrate that he or she acted reasonably and had exhausted all internal procedures formal or otherwise in an attempt to resolve her grievance with his/her employers. The employee would need to demonstrate that the employer's conduct was so unreasonable as to make the continuation of employment with the particular employer intolerable.”

The importance of exhausting the internal grievance processes was also highlighted in Terminal Four Solutions Ltd v Rahman, UD 898/2011:

“Furthermore, it is incumbent on any employee to utilise all internal remedies made available to him unless he can show that said remedies are unfair”.

The Complainant states that he was forced to resign his position because the Respondent breached his contract in not providing him with a position that gave him weekend work, public holiday and close to his home. The Complainant accepted that his contract of employment was given to him and he signed it in 2008.  Furthermore, he accepted that his contract was silent on the issue of guaranteeing weekend work, day work, public holidays and close to his home. That is clear and unambiguous when one looks at the contract. I accept that the Complainant had issues with his employment leading up to his resignation and even raised a grievance on one occasion in relation to pay. However, most of those issues were outside of the terms of his contract but are more relevant to the Complainant’s own wishes. The Complainant stated that when he was excluded from the roster when at the Aviva site in Galway he felt he couldn’t continue with his employment with the Respondent due to all the issues he had had in the past. It was the straw that broke the camels back. The Complainant had a legal obligation to try and resolve the issue at the Aviva and the give the Respondent an opportunity to find a solution prior to terminating his employment. The Respondent stated, and I accept the evidence, that if they had been told about the rostering issue, they would have rectified it immediately.  In those circumstance I find that the Complainant failed to satisfy his legal obligation to exhaust the internal process prior to resigning. Furthermore, I am satisfied that in all the circumstances it was unreasonable for him to terminate his employment. Accordingly, I find that the Complaint is not well founded and fails.

The complaint fails.

Constructive Dismissal. Obligation to exhaust internal process. Reasonableness of decision.