ADJUDICATION OFFICER DECISION
Event Steward (Casual)
A Security Company
Not present (*see note below)
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
The Complainant was a Casual Event Steward and claimed he was unfairly dismissed on March 12th, 2019 in a dispute over place of work.
Summary of Complainant’s Case:
The Complainant commenced employment as a Casual Event Steward in 2008. He was dismissed on March 12th, 2019. He contested that the dismissal was unfair as he had been specifically hired to work at one location (a major Sports Stadium) and could not be assigned to another location when the Operator of the site directed that he no longer works at the site. He stated he was not given a contract on commencement of his employment and he responded to a specific advertisement for work in that specific stadium mentioned above. He earned between 500 and 600 Euros per year. He said he had been unable to mitigate his loss and has been looking for employment since he was dismissed.
Summary of Respondent’s Case:
A Complaint was received by the Director General of the Workplace Relations Commission by the Complainant on June 25th, 2019 alleging that his former employer contravened the provisions of the Unfair Dismissals Act 1977 in relation to him. The said complaint was referred to me for investigation. A Hearing for that purpose was held on October 7th, 2019. There was no appearance by or on behalf of the Respondent at the Hearing. I am satisfied that the said Respondent was informed in writing of the date, time and place at which the Hearing to investigate the complaint would be held and were not present at the Hearing. (Note* I was informed by the WRC office the morning of the Hearing that the Respondent Representative had telephoned the WRC office that due to illness he could not attend the Hearing that day and apologised for his nonattendance. To my knowledge, no request for a postponement of the Hearing was requested by the Respondent.)
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
“6.1. Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
The Adjudicator has given considerable consideration to the relative merits of both the substantive and contractual issues involved in this case.
A number of judgements were considered by the Adjudicator in arriving at my decision.
Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.
Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.
With regard to the question of what a reasonable employer would have done in the circumstances, as Lord Denning put it in British Leyland UK Ltd V Swift (1981) “if a reasonable employer might have dismissed him, then the dismissal was fair”.
In the Complainants submission to the Hearing he provided copies of the following advertisements in a local paper for Casual Event Stewards at the Stadium in question:
One for an Open Day on July 23rd, 2014.
One dated September10th 2016.
One for an Open Day dated December 2nd, 2017.
One for staff for an event at the Stadium on July 11th, 2019.
One dated for an Open Day on August 27th, 2019.
The Complainant stated his dismissal date was March 12th, 2019.
A copy of his original contract dated September 2008 was also submitted by the Complainant. The Complainant stated the contract of employment he received at the commencement of employment did not set out his place of work. This was correct. The Complainant also submitted a copy of a WRC Adjudicator decision in 2017 where he succeeded in a claim that his employer, the Respondent, had not set out among other things, his place of employment in contravention of Section 3 of the Terms of Employment (Information) Act 1994 and he was awarded four weeks wages amounting to approx. 200 Euros and it was noted by the Adjudicator that heard the case that the place of employment was in dispute at the time. The Complainant also submitted a copy of an updated contract provided by the Respondent at a time in October 2017 and what appears to have been in response to the WRC Adjudicator decision earlier that year. This was electronically signed by the Company, but the Complainant did not sign the contract.
The Complainant also submitted a letter from the Respondent to him dated March 12th, 2019 which, inter alia, stated “You have been removed from Stadium X in November 2015. This is the last time you have worked for the Company”. )This refers to the last date the Complainant took up on offer of employment). It also stated “As you are well aware, Management at Stadium X have requested that the Company not to return you to the site. Therefore you will not be offered to work future Events here” It also stated that the Complainant will be considered for events outside Stadium X and asked the Complainant to confirm his availability for other events in the coming weeks and months. It also stated that should he not be in a position to accept work outside Stadium X that the Respondent would have no alternative but to end his employment.
The Complainant was not forthcoming on the reasons why Stadium X management did not want him working events at Stadium X. Equally it is clear that the Respondent continued to provide Event Stewards to Stadium X after the Complainant was withdrawn from working at Stadium X in November 2015, at the time of the Complainants dismissal and after the Complainants dismissal.
The core issues in the case are as follows; Firstly, for whatever reason, Stadium X management, a client of the Respondent, did not wish to have the Complainant work there after 2015. It is understandable therefore that the Respondent withdrew the Complainant from the location to satisfy the customer requirement. This seems to have been the source of the conflict between the parties. Secondly, the Complainants initial contract did not specify his place of work. None of the advertisements submitted by the Complainant relate to the time when he was hired so do not contribute to the issue of deciding the place of work but do assist in showing the continued ongoing relationship between the Respondent and Stadium X.
The Complainant took a case against the Respondnet for breach of the Terms of Employment Information Act 1993 and was successful in this claim. The Respondent provided an updated contract after the WRC Adjudicator decision , which stated the place of work as “Given the nature of the work involved, your place of work will be at the site which you are assigned to work. You will be given as much notice of any change of place of work a is reasonably possible. “ The updated Contract also stated under the section headed “Location and Mobility of Employment” that the work location will be determined by the specific assignments offered to you”.
So in summary the Complainants original contract did not specify any place of work, the Respondent was asked to withdraw the Complainant from the place they held events in 2015, the updated contract provided by the Respondent in 2017, but not accepted by the Complainant, provided total flexibility of the place of work as the Event the company where involved in, the Complainant did not work again with the Respondent between 2015 and the date of his dismissal in 2019, the Respondent appeared willing to offer the Complainant alternative work in other Event locations and unless he was willing to take these up they would have to terminate his employment. Also, the Complainant won a claim against the Respondent under the Terms of Employment Information Act 1993 concerning his terms of employment.
I have considered the situation where if the original contract had contained a clause specific to the Complainant working only at Stadium x, as the Complainant maintains became an implied term of his employment. However, the Respondent was directed, for reasons unknown, that the Complainant could no longer work at the Stadium X premises from 2015 onwards. This would have rendered the employment contract (the implied term) frustrated between the parties at that time. The Complainant for whatever reason sought to have his place of work limited to Stadium X. A condition of employment that could no longer be fulfilled, if it had existed at all, since November 2015. The Complainant choose not to take up any reasonable offers, if they were forthcoming between November 2015 and March 2019 to work elsewhere locally with the Respondent. The Respondent clearly set out in their letter to the Complainant on March 12th, 2019 that they would have work for him in other locations and the Complainant choose not to take up this offer and as a result was dismissed. Having considered all the above facts and circumstances I must conclude that the Respondent had reasons to remove the Complainant from Stadium X, that the Complainant choose not to take up a reasonable offer of alternative employment with the Respondent at events elsewhere and the Complainant contributed in whole or in part to his dismissal as a result. While the original contract did not specify the exact place of work the Complainant took a case under the Terms of Employment (Information) Act 1993 for failure of the Respondent in the original contract to specify his place of work. After receiving the decision., the Respondent set about addressing the issues under the Act, including the place of work of the Complainant. This involved working at events in the general area where the Complainant lived and included provision of expense reimbursement for travelling to events. Therefore, the Complainant could reasonably have anticipated to keep his income, which amounted to approximately 500/600 Euros per year. I must conclude that the Respondent acted reasonably in all the above circumstances. I therefore find that the Respondent had substantial grounds to dismiss the Complainant, had acted reasonably in all the circumstances and the claim for Unfair Dismissal fails.
Dated: 4th December 2019
Workplace Relations Commission Adjudication Officer: