Complainant

Respondent

Parties

Joseph  Monahan

Darlex Risk Management Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00067501-001

19/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946

CA-00067501-002

19/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00067501-003

19/11/2024

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

CA-00067501-004

19/11/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00066760-001

17/10/2024

The Complainant was employed as a Security Officer by the Respondent with a start date of 22 November 2014. He stated that he was unfairly dismissed by the Respondent on 30 September 2024 when they would not allow him to retain his start date with them in respect of a new role that they were offering him as an alternative to transferring to the new security provider on the site on which he had been engaged. As an alternative, he stated that they should have paid him his statutory redundancy entitlements. He also stated that the proposed change of his start date constituted a breach of the Terms of Employment Information Act. In addition, he asserted that he had not been paid in full in respect of the pay increases that applied to the Security ERO from 1 July 2024. 

CA-00067501-001:

The Complainant stated that the Respondent breached the Terms of Employment Information Act when they issued him with a new contract of employment with a proposed start date of 1 October 2024, when he initially indicated that he would be staying with them and would not be transferring to SMS Security.

CA-00067501-002:

Following discussion at the hearing, the Complainant ultimately accepted that he received the pay increase stipulated in the security ERO in respect of all of the hours that he worked from 1 July 2024.

CA-00067501-003 and CA-00067501-004:

The Respondent informed the Complainant in early September 2024 that the client who operated the site on which they were providing security services would be changing to a new security provider with effect from 1 October 2024.

As a result, the Respondent gave the Complainant the option of either transferring when the contract transferred to the new security provider or remaining with them on a different site given that that they had alternative work elsewhere. When the Complainant initially informed the Respondent that he would remain with them, he subsequently changed his mind because the Respondent offered him a new contract of employment with a start date of 1 October 2024.

CA-00067501-001:

The Respondent denied that they had changed the complainant's existing terms and conditions of employment. The Respondent stated that since the Complainant initially indicated he would not transfer to SMS Security (the Transferee) this was effectively a resignation. As a result, they issued him a new employment contract, effective 1 October 2024, in respect of his new role with them.

CA-00067501-002:

The Respondent stated that the Complainant was paid in full in respect of the increase in the rate of pay that arose from the change in the ERO from the 1 July 2024.

CA-00067501-003 and CA-00067501-004:

The Respondent informed the Complainant in early September 2024 that the client who operated the site on which they were providing security services would be changing to a new security provider with effect from 1 October 2024.

As a result, the Respondent gave the Complainant the option of either transferring when the contract transferred to the new security provider or remaining with them on a different site given that that they had alternative work elsewhere. When the Complainant initially informed the Respondent that he would remain with them, he subsequently changed his mind and ultimately decided to transfer and started working with SMS Security (the Transferee) on the transfer date, the 1 October 2024.

CA-00067501-001:

The Complainant stated that he indicated to the Respondent that he did not wish to transfer to the new employer on 1 October 2024. As a result, the Respondent offered him a new role as well as a new contract of employment effective from 1 October 2024. The Complainant stated that the change of his start date on the proposed new contract of employment constituted a breach of the Act.

As there was no change made to the Complainant’s terms and conditions of employment that applied while he was employed by the Respondent however, I find that this complaint is not well founded.

CA-00067501-002:

The rate of pay stipulated in the ERO increased from €12.90 to €14.50 effective 1 July 2024. As the Complainant accepted at the hearing that he received this pay increase in respect of all of the hours that he worked from 1 July 2024, this complaint was withdrawn.

CA-00067501-003:

I note that the security contract on which the Complainant was engaged transferred from the Respondent (“The Transferor”)  to “The Transferee” (SMS Security) on 1 October 2024, that the TUPE Regulations always applied when the contract had been transferred in the past, that the Transferee had informed the Respondent on 18 September 2024 that they would be happy for them to transfer their employees engaged on the contract and requested the relevant information surrounding the transferring employees. I further note that the Complainant started working with SMS on 1 October 2024, namely the transfer date.

Considering the foregoing, I do not find that the Respondent acted either unreasonably or illegally when they indicated to the Complainant that they would be offering him a new role with them with a start date of 1 October 2024 if he did not transfer to SMS Security, the Transferee, because a refusal by him to transfer would constitute a resignation, effective 30 September 2024.

I therefore find that the Complainant was not unfairly dismissed by the Respondent.

CA-00067501-004:

I note that the security contract on which the Complainant was engaged transferred from the Respondent (“The Transferor”)  to “The Transferee” (SMS Security) on 1 October 2024, that the TUPE Regulations always applied when the contract had been transferred in the past, that the Transferee had informed the Respondent on 18 September 2024 that they would be happy for them to transfer their employees engaged on the contract and requested the relevant information surrounding the transferring employees. I further note that the Complainant started working with SMS on 1 October 2024, namely the transfer date.

Considering the foregoing, I do not find that the Respondent acted either unreasonably or illegally when they indicated to the Complainant that they would be offering him a new role with them with a start date of 1 October 2024 if he did not transfer to SMS Security, the Transferee, because a refusal to transfer would constitute a resignation, effective 30 September 2024.

Considering all of the foregoing, I find that the question of redundancy does not arise in respect of this complaint. Accordingly, I do not allow the appeal.

CA-00067501-001:

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

CA-00067501-002:

This complaint was withdrawn for the reasons set out above.

CA-00067501-003:

I find that the Complainant was not unfairly dismissed by the Respondent.

CA-00067501-004:

I do not allow the appeal for the reasons set out above.

CA-00066760-001:

This is a duplicate complaint and has been dealt with in the context of CA-00067501-001 above.