ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00007690
| Complainant | Respondent |
Anonymised Parties | Security Officer | Security Company |
Representatives | Bernadette Thornton SIPTU |
|
DISPUTE
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00010314-001 | 20/03/2017 |
Date of Adjudication Hearing: 05/10/2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 13 of the Industrial Relations Acts 1969 and following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
Background
The Complainant was employed with the Respondent for January 2007, initially as a Cleaner and from December 2016 as a Security Officer. The Complainant tendered her resignation from the Company on 12th July 2017. She was paid €967.50 per fortnight and worked 45 hours a week. The Complainant referred a dispute to the Workplace Relations Commission on 8th March 2017 in relation to loss of earnings for 2016 and she is also seeking payment of Redundancy.
The Complaint under ADJ 7470 was withdrawn at the Hearing.
SUMMARY OF COMPLAINANT’S POSITION.
The Complainant was employed as a permanent employee with the Respondent, working as a Cleaner and assigned to a client. The Complainant had transferred in under a Transfer of Undertaking on 21st July 2014 as a Cleaner/Supervisor. The Respondent lost the Contract for the Company where the Complainant had been assigned to work. The Client Company refused to have the Complainant work with them under the new Contract with another named Company so the Complainant did not transfer under the TUPE Regulations to the named Transferee.
The Respondent Company had no work available as a Cleaner/Supervisor but the Respondent informed her that they would have work for her as a Security Officer and they would provide the training to enable her to obtain her PSA licence which she did on 2nd December 2016. She was issued with a Contract of Employment as a Security Officer which she refused to sign as it did not reflect the terms and conditions she had enjoyed as a Cleaner/Supervisor.
The Complainant is seeking payment of the differe4ntial between her employment as a Cleaner/Supervisor and which terminated in July 2016 and the date of her resignation in July 2017. She is also seeking payment of Redundancy.
SUMMARY OF RESPONDENT’S POSITION.
Following the Complainant’s transfer to the Respondent Company in 2014, following TUPE, she began work on a new site, named, as her due diligence detailed that her hours and rate of pay were for “temporary sick cover”. The Complainant continued to work on a new site working 40 hours a week as a cleaner. In July 2016 the client where the Complainant was assigned requested the Respondent to remove the Complainant from the site for specified reasons and informed the Respondent they had cancelled her access to this site. Following her removal from this site she then began working between two sites, named, working some 20 hours a week until September 2016 when the Complainant began refusing work,.
The Respondent met with the Complainant and her SIPTU Representative in an effort to address the issues she had in relation to a new contract, full time hours and a stable site. She was advised that the Respondent did not have full-time hours available nor was there a stable site she could be assigned to. In an effort to stabilise her hours the Respondent suggested she consider working as a Security Officer and the Respondent would pay for her PSA training. She was also advised this would mean receiving a casual Security Officer JLC Contract with 8 – 48 hours per week and averaging 40 hours in the Dublin region. The Complainant agreed to this and completed her PSA Training and she began working as a Security Officer in a named location in December 2016 on full-time hours.
FINDINGS AND CONCLUSIONS.
On the basis of the evidence from both Parties I find as follows-
The Complainant was working on average 20 hours a week between July and December 2016 following the Respondent’s loss of the Contract for the Client she worked with. She was paid in accordance with her Contract of Employment which transferred with her following a TUPE in July 2014. The evidence also was that the Complainant refused offers of work after September 2016.
The Respondent offered to pay for the training of the Complainant as a Security Officer and to provide her with Contract following securing her PSA Licence. The evidence was the Complainant agreed to this, commenced her PSA Training and secured her Licence in December 2016.
The evidence was that she commenced working as a Security Officer and received the appropriate Contract of Employment as a Security Officer on Security Officer Terms and Conditions of Employment and in accordance with the JLC.
There was no evidence presented to me by the Complainant that a Redundancy situation arose between July and December 2016.
RECOMMENDATION
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute. In accordance with Section 13 of the Act of 1969 and in view of my findings above I do not recommend in favour of the Complainant in relation to payment of Redundancy or payment of the differential between her wages as a Cleaner and that of a Security Office5r
Dated: 5th December 2017
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Industrial Relations – TUPE – Loss of Cleaner contract – trai9ned as Security Officer – seeking payment of redundancy and differential as Cleaner and Security Officer – Dispute finding not in favour of Complainant |