SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
ELITE PRIVATE SECURITY LTD T/A GREENSHIELD ELITE
- AND -
Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr McCarthy
1. An appeal of an Adjudication Officer's Decision No. ADJ-00008229.
2. The Respondent appealed the Decision of the Adjudication Officerto the Labour Court on 15 May2018 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Courthearing took place on29 August 2018 and 17 January and 23 July 2019. The following is the Determination of the Court:
This is an appeal by Elite Private Security Limited t/a Greenshield Elite against the Decision of an Adjudication Officer under the Unfair Dismissals Act 1977 – 2015 (“the Acts”) in a claim of unfair dismissal by Mr Stefan Georgiev.
For ease of reference Mr Stefan Georgiev is referred to as “the Complainant” and Elite Private Security Limited t/a Greenshield Elite is referred to as “the Respondent”.
The Respondent was not in attendance at the hearing before the Adjudication Officer for reasons which were explained to the Court. In the absence of the Respondent, the Adjudication Officer found in the Complainant’s favour and awarded him €5,000 in compensation.
The Complainant commenced employment in or around April 2014 with RFC Security who provided security services to an off-licence chain of stores. This contract transferred to GM Management in February 2016 and ultimately to the Respondent in or around September 2016. Throughout this time the Complainant continued to be placed as a Security Officer at an off-licence in Dun Laoghaire.
Summary of the Complainant’s Case
With the assistance of an Interpreter, the Complainant gave evidence to the Court. He alleged that he was unfairly dismissed on 1st April 2017.
He alleged that he was summarily dismissed with no procedure nor explanation when his employment was terminated on 1st April 2017 without notice. He said that from that date he was no longer allocated any hours of work. He said that on that day, Ms Hazel Stevenson, Supervisor, told him that the Respondent was not happy with him anymore and that he was no longer working at the off-licence.
He said that on Friday 31st March 2017, Ms Stevenson arrived at the off- licence he was working at and asked him to cover a shift on the following Sunday at a coffee shop in Bray from 11pm to 6pm. He said that he did not agree to take the shift.
The Complainant stated that when he completed his shift at the off-licence on Friday 31st March 2017, he then proceeded to carry out a shift at a hotel in Leopardstown where he worked from 11pm until 4am on Saturday morning. He said that as he had not received his roster for the following week, he telephoned Ms Stevenson on Sunday 2nd April 2017. He said that Ms Stevenson informed him that the Company was not happy with him and that he would not be working there any longer. He told the Court that Ms Stevenson told him that someone would telephone him on Monday or Tuesday to explain. He said that he did not get an explanation.
The Complainant disputed a text message dated 1st April 2017, submitted in evidence by the Respondent, which stated that he should email its payroll section and request his P45. He suggested that his occurred two/three weeks later. He said that on 2ndApril 2017 he emailed the payroll section saying that his employment was going to be terminated and seeking his holiday pay. He said that he never worked for the Respondent after 1st April 2017 and had had no contact with the Respondent after that date until he spoke to Mr Turner around 20thApril 2017 who instructed him to contact the Respondent’s payroll section to request his P45.
The Complainant denied that he worked for the Respondent on 8th April 2017, when it was alleged that he covered a shift in the hotel in Leopardstown from 11pm to 4pm. He was questioned about a payslip dated 4th May 2017 which indicated that he was paid for five hours’ work. When asked if that was payment for the shift in Leopardstown, he denied it.
Summary of the Respondent’s Position
The Respondent stated that when it took over the provision of security services for the off-licence chain there was no insistence by its Client Company to retain current personnel, however, it did offer some of the employee’s new contracts of employment, including the Complainant.
It submitted that having failed to show up for shifts, the Complainant then sought his P45. He was asked to submit his request in writing. By email dated 2nd April 2017, he stated that he had been sacked and was seeking a termination letter. The next contact the Respondent had was from the Complainant’s Solicitors stating that the Complainant had been unfairly dismissed and seeking compensation for,inter alia,the termination of his employment.
Summary of the evidence given by Ms Hazel Stevenson, Supervisor
Ms Stevenson told that Court that she has responsibility for security in the retail sector for the Respondent. She compiles shift rosters for staff, she checks in with the retail locations to ensure that everything is running smoothly and updates staff files. She said that the off-licence chain in question has seven shops with varying security requirements. She also deals with an hotel group who have hotels in Leopardstown and Ballsbridge. Her brief also extends to a large retail/café business which has five stores in a contract with the Respondent.
Ms Stevenson said that she notifies employees of their weekly roster by text message, usually on a Sunday.
The witness said that the Complainant had been rostered to work at the off-licence in Dun Laoghaire until the off-licence chain decided that it required the security staff to be rotated between its seven shops. She said that this had been communicated to all security personnel, including the Complainant, by text message on Monday 27th March 2017. On Tuesday 28th March 2017 she sent the Complainant a text message with his roster for the week commencing on Friday 31st March 2017. This indicated that he was being rostered for a variety of locations. The message sought confirmation of the roster from the Complainant, which the Complainant duly did. On Wednesday 29th March, Ms Stevenson sent the Complainant a text message asking him to swap the location of the Friday night shift, which he duly agreed to. Ms Stevenson said that on Saturday 1st April around 1pm, the Complainant telephoned her and said that he was not going to do the shift at the retails/café business in Wicklow. He told her that he was not happy with the changes to his normal work location and requested his P45. She told him that he would have to email the Respondent’s payroll section to request his P45 in writing and she then sent him a text message with the email address of the payroll section.
Ms Stevenson said that she then asked him to work the Saturday and Sunday shifts which had been assigned to him, but he refused to do so and asked for his P45. She said that she told him that she had no power to issue him with a P45 and informed him to contact the payroll section.
Ms Stevenson said that the Complainant telephoned her again on Friday 7thApril 2017 looking for his P45 and again she explained that she could not assist him and referred him to the payroll section. Following the call she again sent him the email address for the payroll section.
Summary of the evidence given by Mr John Turner, Operations Manager
Mr Turner told the Court that in or around September 2016, the Respondent acquired the security contract for the off-licence chain with seven shops. He said that the Complainant along with three other employees were taken on by the Respondent on enhanced terms and conditions. He told the Court that he had a meeting with the off-licence chain’s head office management around the end of March 2017 when he was informed that it required the Respondent’s security staff to rotate between its seven shops as security employees were becoming too familiar with its own employees. Mr Turner said that, while he was not comfortable with this decision, he agreed to do it for two to three months and review the situation at that point. Mr Turner said that he informed Ms Stevenson of this development and asked her to relay that information to the security employees, including the Complainant.
Mr Turner said that shortly afterwards he received a telephone call from Ms Stevenson to inform him that the Complainant was not happy with the rotation and that he was requesting his P45. He told her that the Complainant would need to contact the payroll section and make a written request for his P45.
Mr Turner said that he never had an issue with Complainant’s work and would have no hesitation in re-employing him. He said that he understood that the Complainant was not happy with the new locations as he would have to travel longer distances to work.
With reference to the events of 8th April 2017, the witness said that Ms Stevenson telephoned him and said that the Complainant had contacted her saying that he was willing to return to work and sought to be included in the roster. She allocated him the only available shift at the time, the 8thApril shift in the hotel in Leopardstown. Mr Turner said that he signed off on that shift. Shortly after the 8th April, Mr Turner told the Court that he received a telephone call from the Complainant’s daughter who was looking for the Complainant’s P45. He informed her that the Complainant must make his request in writing to the payroll section. He said that the daughter was somewhat irate on the telephone and was also looking for the Complainant’s back pay and holiday pay.
Mr Turner said that he received a letter from the Complainant’s Solicitors dated 13th April 2017, which alleged that the Complainant had been unfairly dismissed and alleged that the Respondent was in breach of a listed number of employment law matters. Mr Turner told the Court that he contacted the Solicitors’ office to inform them that the Respondent had not dismissed the Complainant but that he had requested his P45 and Mr Turner denied the alleged breaches detailed in the letter and gave his reasons for doing so. He said that he was not contacted by the Solicitors’ office after that.
Section 1 of the Acts defines ‘dismissal’ for the purposes of the Acts as follows:-
- “(a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,
(b) 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, or
(c) the expiration of a contract of employment for a fixed term without its being renewed under the same contract or, in the case of a contract for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment), the cesser of the purpose;”
Conclusions of the Court
Dismissal as a fact is in dispute therefore it is for the Complainant to establish that in the circumstances of this case a dismissal as defined by the Acts took place.
The Complainant’s case is that he was dismissed by the Respondent when Ms Stevenson informed him that the Respondent did not want him anymore and he proceeded to seek his P45. He said that he was not rostered for work after that. The Court notes that this alleged incident occurred on Sunday 2nd April 2017.
The evidence shows that on Monday 27th March 2017 Ms Stevenson informed the Complainant that its Client, the off-licence, had informed the Respondent that it wished its security staff to rotate between its seven stores. The Court notes that the text message informing the Complainant of this turn of events stated that the Respondent had no control over this and had to abide by its Client’s wishes and therefore the Complainant had to be rotated to different locations. Accordingly, the Complainant was informed that he was being moved to the Ballybrack off-license store and required to work there the following weekend. The evidence shows that on Tuesday 28th March 2017 the Complainant was given his week’s roster which reflected the rotation required by the Client. This roster covered the period up to and including Sunday 2nd April 2017. On Wednesday 29th March 2017, the Complainant was requested to change shift for the Friday night, which he willingly agreed to do.
In her evidence to the Court Ms Stevenson stated that the Complainant requested his P45 on two occasions. This evidence is supported by the text message sent to the Complainant on Saturday 1st April 2017 and again on Friday 7th April 2017 in which the Complainant was given the details of the payroll section email address to request his P45 in writing.
The Court is also influenced in its conclusion on this case by the evidence which shows that he again worked for the Respondent on 8th April 2017, a week following his alleged dismissal. While the Complainant disputed this, the evidence shows that he was paid for that shift in May 2017.
Taking into account all the circumstances of this case the Court prefers the evidence of the Respondent in relation to the matters that occurred at the end of March to the beginning of April 2017. In those circumstances, the Court is satisfied that the Complainant was not dismissed from his employment.
Having carefully considered the submissions both written and oral and the evidence given at the hearing the Court cannot find that the Complainant’s employment came to an end in circumstances amounting to a dismissal as defined by the Acts.
The Court determines that the Complainant’s complaint is not well-founded. The appeal is upheld. The Decision of the Adjudication Officer is set aside.
The Court so Determines.
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
Determination of the Court
The Court, having earlier found in the above Determination that the Complainant’s employment did not come to an end in circumstances amounting to a dismissal as defined by the Unfair Dismissals Acts 1977 – 2015 and therefore, the Court held that the Complainant was not dismissed by the Respondent unfairly or otherwise.
Therefore, the Court determines that the Complainant’s complaint for a minimum notice payment under the Act is not well-founded. The appeal is upheld. The Decision of the Adjudication Officer is set aside.
The Court so Determines.
Signed on behalf of the Labour Court
6 August, 2019.Deputy Chairman
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.