ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00023012
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Date of Adjudication Hearing: 30/09/2019
Workplace Relations Commission Adjudication Officer: Eugene Hanly
In accordance with Section 13 of the Industrial Relations Acts 1969following 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.
The Worker is employed as a Security Officer since 7th May 2002. She has sought the reimbursement of wages, when unilaterally removed from a site with no suitable alternative employment.
Summary of Worker’s Case:
She stated that she had been working on a particular named site since 2007, working a 12-shift on Fridays and Saturdays. She also worked a 12-hour shift at another named site on Sundays. On Friday 10th November 2017 she was refused entry to her regular site and was instructed to leave. She was not given a reason and was not paid for her shifts on Friday and Saturday. The Employer had arranged a replacement. She lives a 2-hour journey outside the city and had to use public transport travelling to work. She was later advised by the Employer that she had been replaced on that site. Her other shift on Sundays was unaffected. On Tuesday 14th November she contacted the Operations Manager who advised her that there had been an unspecified issue relating to her on the site. The Operations Manager undertook to meet with her but failed to do so in the following week. Eventually a meeting was arranged for 23rd November 2017. Despite the Employer’s Office being near where she lived, she was required to travel into the city centre. When she arrived, she realised that the meeting was formal, the Operations Manger was accompanied and she had not been notified of this and had not been advised of the need to bring a representative. She was told that the Client Company had insisted upon her removal because she was bringing her young son on site, she was persistently late and she slept on shifts. On 25th November she was offered a 6-hour shift in west side of the city. Strangely she was rostered to work on Saturday 2nd December on her original site, also on 7th and 8th December. However, the 7th and 8th were withdrawn, she was not paid for those. This pattern continued until March 2018. She has lost approximately €4,000 in pay. She by then had secured similar shifts. During all this time the Worker had made sustained but unsuccessful attempts to secure alternative shifts. She met with the Employer on several occasions to find a resolution but without success. They finally met on 29th May 2019 to discuss reimbursement of wages and following on from this the Employer offered her €250 in full and final settlement. The offer was rejected and the matter was referred to the Workplace Relations Commission. On 6th June 2019 the Employer provided an email from the Client Company explaining why she was removed from the site. This was 19 months after the event. She had never been spoken about these allegations. She denies the allegations. She stated that she never took her son on site during shifts. On occasion she brought him to the toilet before the shift start while waiting for her husband to collect him. Despite these allegations the Employer had an obligation to vindicate her rights to fair procedure and natural justice. The Employer knew in advance of 10th November 2017 as they had arranged a replacement. Her removal from work amounts to a suspension without pay. She was given no opportunity to address these allegations. She contacted the Employer each week seeking work. She accepted any shift that was offered, even outside her normal weekend shift, few were offered. It is her belief that the Employer did not make any serious attempt to address this problem. She should have been paid during these times of no work. She was allocated only a total of 136.5 hours leaving her with a loss of €4,000. She is seeking this amount.
Summary of Employer’s Case:
The Worker has been in continuous employment since 7th May 2002 through a series of transfers of undertakings. In around November 2017 the Client Company contacted the Employer requesting her removal from the site, citing time keeping and bringing her son on site during working hours. She was removed from the site and alternative work was sought. She had only limited availability for Fridays, Saturdays and Sundays. This meant that it was impossible to find alternative work. She was offered multiple alternatives, but they were declined due to her limited availability.
It is the Employer’s position that this claim was brought under the wrong Act. It should have been taken under the Payment of Wages Act. She is using the Industrial Relations Act to circumvent the time limits issue.
They stated that the break in her employment was due to her unavailability, being only available to work on Fridays, Saturdays and Sundays. Her removal from the original site was because of the Client Company’s view that there were time keeping and issues relating to her son being brought on to the site during working hours. Bringing a child on site is s very serious matter. It is the policy of the Employer that all employees are placed on site subject to the ongoing approval of the client. Following her removal, they sought alternative work but were unable to do so due to her restricted availability. Had she been more available alternative work would have been found sooner. Therefore, she cannot be entitled to pay when she is not available.
Findings and Conclusions:
I note the Employer raised the matter of the claim being brought under the wrong Act.
I find that the Worker was entitled to raise a claim under the Industrial Relations Act.
I find that the Employer was entitled to object to such a claim being brought to the WRC, but they did not do so.
I find that the Worker is entitled to have her case heard under this Act.
I note that the Worker travelled to work on 10th November 2017, which took two hours on public transport. She was immediately refused entry to the site and sent home.
I note that the Employer had put in place a replacement Officer.
I note that she was not paid for that shift and subsequent shifts.
I find it unreasonable that the Employer did not p-ay for the 10th November at least.
I accept that in this industry each employee is placed on site subject to the ongoing approval of the client company.
However, fair procedure and natural justice would require that matters of concern should be discussed and employees should be given the opportunity to correct/amend their ways.
In this case I find that no information was produced to demonstrate that any fair procedure was applied to this removal from site.
She was not spoken to about lateness and the bringing of her child on site.
The Employer advised that there was persistent lateness and a number of occasions when her child was allegedly on site.
I note that the Employer has a Supervisor on site.
There were no records that he spoke to her about these matters.
I note that he did not attend the hearing.
I find that if a Client Company had a difficulty with an employee concerning these matters, lateness and bringing a child on site, then the Employer should have requested time to speak with their employee and address the matter.
I accept that there may be times when an act of gross misconduct does not allow such a situation e.g. established theft of property and /or aggressive behaviour, but these allegations were not such.
I find that allegations of persistent lateness can be addressed very easily through records and perhaps CCTV footage would address the allegation of bringing her son on site.
Did the on-site Supervisor speak to her? if not why not?
I find that the Employer did not apply fair procedure in this case.
I find that the Worker was denied natural justice.
I find it unreasonable to require her to make the two-hour journey each way to attend a meeting on 23rd November without offering to reimburse her.
I find that the Worker’s limited availability has hindered the Employer’s ability to find alternative work.
In such circumstances I find it unreasonable for her to be seeking full pay during these times when she was out of work.
Section 13 of the Industrial Relations Acts, 1969 that I make a recommendation in relation to the dispute.
I have considered the written and verbal submissions made at the hearing.
I have decided that the Employer did not apply fair procedure and natural justice when addressing the allegations and subsequent removal from site.
I have decided that it is unreasonable for the Worker to seek full compensation for the time she was out of work when it is clear that her unavailability impacted upon the Employer’s ability to find alternative work.
However, I have decided that she is entitled to compensation for the manner in which she was treated.
I find that the offer of €250 did not even address the cancelled shift and travel costs on 10th and travel time and costs on 23rd November 2017.
I recommend, in full and final settlement of this dispute that the Employer pays the Worker €2,000
Workplace Relations Commission Adjudication Officer: Eugene Hanly