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€32,000 payout to injured Tesco security guard, who was denied chair to sit on at work, overturned

The payout was overturned as the man, who had claimed victimisation at work due to not being given a chair to sit on after knee surgery, was employed by another company, not by Tesco itself.

File Photo Up untill last night Tesco had decided to open their shops event though Hurricane Ophelia was coming. End. File Photo Source: Sam Boal/Rollingnews.ie

A SECURITY GUARD, who had succeeded in an action against Tesco after claiming alleged victimisation at work, has had a €32,000 payout ordered due to him by the Workplace Relations Commission (WRC) overturned by the Labour Court.

The man had been employed by Noonan Services Group Limited, a company which had tasked him with working at the Tesco store in question, an establishment 40,000 square feet in size, in Co Limerick from 2014.

The initial payout concerned a complaint over a dispute the man entered into at the store as he recovered from knee surgery sustained in a workplace accident. That accident was not related to his term of work at the Tesco outlet.

As part of the security system in place at the Tesco store, the man had, for a substantial portion of each shift, sat in a chair at a bank of security cameras in order to monitor the activity in the store.

Unexpectedly, this chair was removed by the store in order to combat ‘shrinkage’, the stealing of articles for sale from the shop floor, by forcing security guards to patrol the aisles rather than sitting at the camera-station.

Objection

When the man objected and asked for the chair to be reinstated, he claimed his request was refused. He also provided medical testimony suggesting that in standing for the duration of his ten-hour shift he would in effect be ruining his recovery from his knee surgery.

He ceased working at the store in November of 2015 and did not return.

The initial decision in his favour by the WRC had awarded him €32,000 in reparation – €16,000 for loss of wages due to going on extended leave, and €16,000 as a result of his alleged victimisation due to the knee injury.

Throughout that action, Tesco had objected, saying that it was not the man’s actual employer, but rather Noonan was.

The initial decision by the WRC adjudication officer stated that it was correct to name Tesco as the respondent as the store exerted considerable command and control over the man, regarding annual leave applications and the delivery of security reports for example.

It was towards this point of order that Tesco dedicated the substance of its appeal to the Labour Court earlier this month.

Employment agency

The retailer argued that Noonan is not an employment agency per se, as had been previously argued, but is ‘a provider of managed services’.

It successfully argued that neither the Temporary Agency Work Act 2012, nor the Employment Agency Act 1971, applied to such providers of managed services.

The Labour Court agreed that at no time when handling Tesco’s security contract did Noonan ‘supply the respondent with personnel to work under the latter’s supervision and direction’, but rather was contracted to provide security services at Tesco’s stores ‘at all material times’.

It follows, therefore, that the complainant’s claims against the respondent are not well-founded as the respondent was at no stage his employer for the purposes of that (Employment Equality Act 1998),” the court said in its judgement

Accordingly, the court overturned and set aside the original decision to award the man €32,000 in compensation.

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