Complainant

Respondent

Parties

Mark  Carter

OCS Group Ireland

Representatives

Self-Represented

Naledi Bisiwe 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-00067124-001

04/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00067124-002

04/11/2024

The hearing was attended by the Complainant and for the Respondent by Aoife McGookin, Vincent Galvin, Hassan Nadeem, Eoin Power, Mark Dunne. All witnesses, including the Complainant took an oath to be truthful with the Commission.

The Respondent set out preliminary arguments to dismiss the case and these were considered in the full of the case in an abundance of fair procedures.

There was cross-examination allowed for both parties.

At the close of the hearing the Complainant was asked to provide details of applications for roles where he attempted to mitigate his loss. This was provided to the Commission in good time and the Respondent had an opportunity to respond to the same and which I have taken account of.

Having heard all the evidence and having been assured by the parties that all matters were dealt with the hearing was properly closed.

The Complainant was a Security Officer earning €1,208 gross weekly. He has complained that he was forced to leave his employment due to the behaviour of the Respondent. He has lodged two complaints, one under the Unfair Dismissals Act and the other under the Redundancy Payments Act.

He commenced work on the 14/08/2017 and the employment ended on the 18/10/2024, lodging his complaint on the 04/11/2024. He is within the statutory time limit, and he has service to apply for relief under both acts.

It is the Complainant case that having worked as a contracted security officer in a supermarket for the Respondent for several years, he had an incident with the store manager on the 17/08/2024, where he was reproached publicly, having already experienced demeaning treatment by the same manager. 

The Complainant left the premises and contacted his manager (NH) to report the incident and to request a move to a different location. He was informed he would move to another location nearby, but before he could start, NH contacted him to instruct that he not attend and take part in an investigation on the previous day’s issues. There was a meeting later the same day where he was requested to attend at the original site and to put the matter behind him and did so. However, on the first day he was met by NH and was informed he was being suspended with pay pending an investigation.

 An investigation meeting was conducted via Teams, where statements were provided, but not one from the Store Manager who was central to the incident. This was provided a week later.

On 06/09/2024 a disciplinary meeting took place online. The outcome was provided to the Complainant on 13/09/2024 where it was decided to remove him from the stores.

At this point the paid suspension was lifted, and he met NH on the 16/09/2024h to discuss other work assignments. NH confirmed to him that he, NH, only had authority over the supermarkets contracts this being the only contracts available in the area.

The Complainant emailed the Respondent to appeal the decision on the 16/09/2024 and again on the 19/09/2024 and a date was set for the 24/09/2024. He was told it would take 48 hours to get an answer; it took 9 days in his case. During this time the Complainant was offered no work. He was advised to contact Head Office to find another assignment and he made several attempts to do so and received no responses from management or HR. After 5 weeks the Complainant signed on having tendered his resignation on the 18/10/2024.

On the matter of redundancy, the Complainant sets out that they were removed from their job location, offered no alternative work at any other location and have had no contact from anyone in management, all calls and emails have gone without response.

It is the Respondent case that they have not dismissed the Complainant and that he has not followed the grievance procedure in relation to his complaints. The Respondent sets out that it has not dismissed the Complainant and that in essence the Complainant has no case under either Act

Preliminary Arguments

The Respondent set out the following in asking me to dismiss the complaint.

A. No dismissal took place

The Respondent sets out that the Complainant has not been dismissed within the meanings set out in the Act and has resigned his post. The Respondent cites Ranchin -v- Allianz Worldwide Care S.A. [UDD1636] from the Labour Court in support of this, where the Court set out the roles of both parties and they must demonstrate they have pursued their grievance through the agreed process. The Respondent argues that the Complainant bears the burden of proof in this, and it is the Respondent case that the Complainant has failed to meet this burden.

B. Failure to exhaust internal remedies

The Respondent refers to the Respondent grievance procedure which has been provided to the Complainant when they started work. Further to this the Respondent offered the Complainant work on another customer contract which he never took up and subsequently resigned his position.

It is the Respondent contention that the Complainant took no steps to resolve the grievance before resigning. The Respondent refers to Dunnes Stores v A Worker LCR22639,Melinda Pungor and MBCC Foods (Ireland) Limited LCR22639 and Travers v MBNA Ireland Limited, D720/2006

Substantive Issues

The Respondent set out the course of events that led to the resignation of the Complainant. They deny the dismissal in full and set out that they had in fact offered the Complainant a new assignment on another customer contract which was refused. They further set out that the disciplinary matter was entirely justified in terms of agreeing to the Complainant request to remove him from that contract and further that the Complainant behaviour risked the Respondent relationship with the Customer. It is the Respondent view that they not only gave fair processes to the Complainant but were lenient in the sanction applied.

The Respondent further sets out that the Complainant has failed to set out how he has mitigated his losses.

The Respondent respectfully requests that I find that the Respondent did not breach the Unfair Dismissals Act 1997 – 2015, as the Complainant was not dismissed, as shown above. As he was not dismissed, it follows that he is not entitled to and cannot claim any redundancy payments. Consequently, the Complainant is not entitled to any relief both under the Unfair Dismissals Act and the Redundancy Payments Act.

The Respondent also refers to case law in:

·        Looney & Co. Ltd v Looney, UD 843/1984

·        O'Riordan versus Great Southern Hotels [UD1469-2003]

·        Tara Exploration & Development Company Limited v Minister for Industry & Commerce [1975] IR 242

·        Bus Eireann v SIPTU PTD048/2004

·        Travers v MBNA Ireland Limited, D720/2006

I should note that it is not my role to investigate in depth all the events surrounding these complaints. This is well set out by the Respondent in referring to Looney & Co. Ltd v Looney, UD 843/1984. Rather my role is to consider the action of the Respondent against that of a reasonable employer.

The Respondent has submitted that I should dismiss hearings based on their preliminary submissions. I chose to hear the matter in the round, in an abundance of fair procedures.

Specific Complaint CA-00067124-001 Unfair Dismissal Issue

At the heart of the complaint for unfair dismissal is the lack of response from the Respondent to queries from the Complainant where he attempted to phone the Respondent. The Respondent points to the definition of dismissal under the acts and under cross examination of the Complainant it was not denied that they had been provided with a copy of the relevant procedure.

The Complainant has experienced a great deal of understandable frustration in their dealing with the Respondent and the Respondent has not demonstrated HR skill in dealing with the issue in terms of responsiveness nor communication, where the Complainant had been misdirected as to where to work. The issue of the heart of this matter is if processes were followed in a sufficiently fair manner which need not be perfect.

Whilst I am critical of the Respondent in their communication tardiness in providing details to the Complainant; in a case of constructive dismissal, it is for the Complainant to show they had exhausted procedures. They clearly have not done so in terms of resigning before formally raising the issue. I note their evidence of non-responsiveness of the Respondent to other queries, and I appreciate and believe this to be the case, but they did not formally launch a grievance in line with the agreed process. This is highly regrettable as had they done so the Respondent would undoubtedly have sat up and taken notice of his complaint and resolved the mater or alternatively put the Complainant in a stronger position.

The case law from the Labour Court is clear on the matter of exhausting the processes formally before referral of a case. An employer must be given an opportunity to make amends and to rectify matters. This has been the case since at least 1977 with the introduction of the Act and reiterated many times since. It is a matter of policy that matters be dealt with and exhausted at the local level before it be referred to a third party. In all of this, I am obliged to follow the decisions of the Labour Court and for this reason I cannot find other than this complaint is not well-founded.

Specific Complaint CA-00067124-002 Redundancy Issue

The Complainant sets out that he has been made redundant where the Respondent provided him with no work.

S7(2) of the Redundancy Payments Act 1967 defines redundancy as occurring where

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

F20[(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,]

The submissions and evidence do not support redundancy under these definitions. It may be helpful to point out that a person may not be made redundant, but the role that person occupies may. There is nothing in evidence to show that the work done by the Complainant has been made redundant and he himself sought to be removed from it in any event. Following his removal there was a disciplinary sanction for his behaviour in the role making him ineligible for working with that customer, which does not appear to be unreasonable given the behaviour. I cannot find that there has been any type of redundancy and for that reason the complaint is not well founded.

Specific Complaint CA-00067124-001 Unfair Dismissal Issue

For the reasons set out above I find that this complaint is not well founded

Specific Complaint CA-00067124-002 Redundancy Issue

For the reasons set out above I find that this complaint is not well founded

Failure to follow process, definition of redundancy