ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001742

Complaints for Resolution:

Venue: WRC: Lansdowne House, Dublin 4.

Date of Adjudication Hearing: 14/11/2016

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background

The Complainant was employed as a Security Officer from 10^th May 2013 to 30^th November 2015. He was paid €10.75 per hour and worked varying shifts. His average weekly pay was €319.81. He has claimed that he did not get a contract of employment, did not get daily and weekly breaks, did not get a Sunday premium, worked in excess of 48 hours per week, did not get Public Holiday entitlements, was penalised and the Respondent made illegal deductions form his wages.

1) Terms of Employment (Information) Act   CA -00002371-005

Complainant’s Submission and Presentation:

The Complainant stated that he was shown a contract but was not given time to consider it. He did not sign it and denied that it was his signature on the contract. He was not given a copy of the contract of employment. The Respondent has breached Sec 3 of this Act and the maximum four weeks pay in compensation is sought.

Respondent’s Submission and Presentation:

The Respondent stated that the Complainant was given a contract of employment and they presented a signed copy that was given to him. The Respondent’s main witness gave evidence that he personally gave the contract to him, he signed for it in the office and he was given a copy.

The complaint is rejected.

Findings

I note the conflict of evidence regarding the Complainant’s signature on the contract. At the hearing the Respondent undertook to investigate other documents that were signed in order to compare the signatures. They replied on 17^th November to confirm that it was not his signature but that he had printed him name on the contract, not signed it.

I note that the Complainant recalls being in the office. He signed the contract but did not get a copy of it.

I note that the Complainant states that the contract presented at the hearing was not the one that he signed but he didn’t get a copy.

I note that a series of correspondence issued from both sides concerning the signatures, which was not requested by the Adjudication Officer but offered by the Respondent and it was agree to allow it.

However it should be noted that Sec 3(4) of this Act only requires the signature of the Respondent.

Sec 3 (4) states, “A statement furnished by an employer under subsection (1) shall be signed and dated by or on behalf of the employer”.

I find that the contract presented to the hearing was signed by the Respondent.

However the Complainant states that this was not the contract signed by him but not given to him.

I fail to understand why an employer would go to the trouble of preparing a contract, getting the employee to sign it and then not give him a copy.

On the balance of probability I find that a contract of employment was issued to the Complainant.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

For the above stated reasons I have decided that this complaint fails.

2) Organisation of Working Time Act   CA-00002371-001/2/3/4/6/9

Request to extend the time limit

Complainant

He stated that he did not know about time limits.

Respondent

They stated that a lack of knowledge of the law cannot be a defence. They cited the High Court case Minister for Finance v CPSU and Others [2007] AEELR 36 which examined the principle of reasonable cause which was similarly the trigger necessary to extend the 6 months time period under the Employment Equality Act 1997. The High Court held the absence of subjective knowledge on the basis of the applicants concerning their constitutional or legal rights does not prevent a cause of action accruing and time running under the 1997 Act. Therefore his absence of legal advice until November 2015 should not be allowed. He did not submit his complaint until February 2016 which is some three months after taking legal advice.  

Decision

I find that a lack of knowledge of the law cannot be accepted as a defence. I also note that the Complainant didn’t present a complaint for three months after getting legal advice. This request is rejected. This complaint was presented to the Commission on 3^rd February 2016 therefore the period that may be investigated is 4^th August 2015 to 30^th November 2015 , the date of termination of employment.

Complainant’s Submission and Presentation:

a) Sec 12 Breaks

He stated that he did not get adequate breaks, there were no rostered breaks. He did not get these short breaks on a consistent basis. He made complaints about this by e-mail. If he had been replaced for breaks there would have been documentation but none exists.

b) Working 48 Hours +

He stated that he worked in excess of 48 hours on numerous occasions, e.g .62, 69, 73, 73 hours per week.

c) Weekly breaks

He didn’t get 24 hour breaks in seven day periods. Examples were given for April and May 2015 also 26^th August 2015 to 6^th September 2015.

d) Sunday premium

He stated that he worked 9 Sundays between February and November 2015 and did not get a Sunday premium.

e) Public Holidays

The Complainant accepted at the hearing that he was paid for Public Holidays.

f) Penalisation

This complaint was withdrawn.

Respondent’s Submission and Presentation:

a) Breaks

Further particulars of this complaint were sought.

Breaks were taken for 30 and 60 minutes and recorded. Short breaks of 15 minutes were not recorded. All employees took their short breaks. He was observed by management taking these breaks.

b) Working 48 Hours +

His average hours of work were 26.5 per week, details supplied.

c) Weekly breaks

From 15^th September 2015 he worked only Monday to Wednesday. This claim is rejected.

d) Sunday premium

He joined the company after the JLC for the security industry was deemed unconstitutional. His rate of pay was above the competitor rates. His contract of employment states that his rate is a composite rate of pay. From 15^th September 2015 he worked Monday to Wednesday only and so worked no Sundays in the allowable period up to the termination of his employment.

e) Public Holidays

The Respondent produced payslips showing that he was paid for Public Holidays.

f) Penalisation

This complaint was withdrawn.

Findings

a) Breaks

I note that this complaint mainly concerns short breaks.

I note that the Respondent has no records of the short breaks.

Sec 25 of this Act places a responsibility on the Respondent to maintain records. In the absence of such records I must accept the Complainant’s evidence.

Therefore on the balance of probability I find that the Complainant did not get adequate short breaks and the Respondent has breached Sec 12 of this Act.

I find that the Complainant should receive compensation of €200 for beach of his rights under this Act.

b) Working 48 Hours +

I find that when his hours of work were averaged over the period allowed under the time limit (10/8/2015 to 30/11/2015) as is provided in this legislation he worked 26.5 hours per week.

I find that this part of the complaint fails.

c) Weekly breaks

I find that in the allowable period he received the correct weekly breaks in the weeks worked up to the termination of his employment.

I find that this part of the complaint fails.

d) Sunday premium

I note that he received a rate of €9.75 per hour which was in excess of 12 % above the minimum wage. I note that he accepted this composite rate.

I also note that he did not work Sundays in the allowable period under this time limit. He worked Monday to Wednesdays only.

I find that this part of the complaint fails.

e) Public Holidays

I note the payslips showing payments for the Public Holidays. I note that the Complainant has accepted this.

f) Penalisation

This complaint was withdrawn.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Respondent has breached Sec 12 of this Act and I order the Respondent to pay the Complainant €200 in compensation for breach of his rights under this Act.

This is to be paid within six weeks of the date below.

3) Payment of Wages Act - CA-00002371-007 / 8

Complainant’s Submission and Presentation:

1) Travel

There were three shifts when he travelled 1 to 1.5 hours to work in Dundalk, Naas and Celbridge. He was not paid for these hours.

2) Deductions from uniforms

€5.01 was deducted each week for uniforms. Uniforms were provided for static guard duty. In 2015 he got 2 shirts and one jacket. He sent the Respondent e-mails of complaint about his issue of uniforms on 17^th, 22^nd August, 23^rd September 2015. These were illegal deductions.

Respondent’s Submission and Presentation:

1) Travel

The Respondent stated that this had not been claimed and was not before the Workplace Relations Commission.

2) Deductions for uniforms.

They stated that €5.01 deduction is an industry norm. These deductions apply to all employees. 2 trousers, 2 shirts 1 jumper, epilates and a tie are issued each year. All employees get these. The Complainant received his issue with all other employees.

He raised no issue until August and September 2015 about uniforms.

Findings

1) Travel

This complaint was not before the Workplace Relations Commission and so may not be considered.

2) Deduction of Uniforms

I note that the deductions made since the commencement of his employment in 2013 were not queried until August and September 2015.

Therefore I find that he has accepted this is the custom and practice.

I note the dispute about the receiving of a staff handbook, which refers to uniforms.

The matter before this hearing only concerns the allegation of unlawful deductions from his wages in respect of uniforms, not did he get the full issue of uniforms, which is an operational matter.

I find that he accepted these deductions from his wages from the commencement of his employment in May 2013 to August 2015 when he first queried them.

I find that deductions for uniform are a feature of the security industry.

Therefore I find that these deductions were provided for in this contract of employment and operated in practice throughout his employment.

I find that these were not illegal deductions.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that this complaint fails.

 Dated: 16th December 2016