FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 7(1), PAYMENT OF WAGES ACT, 1991 PARTIES : OCS ONE COMPLETE SOLUTION LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - RADEK VELICKA DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer's Decision No R-154311-PW-14.
BACKGROUND:
2. This is an appeal of an Adjudication Officer's Decision No: R-154311-PW-14 made pursuant to Section 7 (1) of the Payment of Wages Act, 1991. The appeal was heard by the Labour Court on 4 May 2016 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DETERMINATION:
Mr Radek Velicka brought a complaint before an Adjudication Officer pursuant to Payment of Wages Act 1991(the Act)alleging a breach of Section 5 of the Act by his employer OCS One Complete Solution Limited.
The Adjudication Officer in Decision R-154311-PW-14 decided that his complaints were already comprehended under R-151619-TU-14. This was a claim referred by MrVelickaunder the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 S.I. No. 131/2003 (the Regulations) where he alleged a breach byOCS One Complete Solution Limitedof Regulations 4 and 8. On that basis the Adjudication Officer did not make a finding in favour of his claims under the Act.
MrVelickaappealed this Decision.
For ease of reference the parties are referred to as they were at first instance. Hence Mr. Velicka is referred to as "the Complainant" and OCS One Complete Solution Limited is referred to as "the Respondent".
The Complainant informed the Court that he referred a claim under the Act to the Workplace Relations Commission on 12thDecember 2014.
In his submission to the Court, it appeared that the Complainant was seeking an extension of time under Section 6(4) of the Act. However, when the Court raised this point at the hearing, the Complainant was clear that he was not seeking an extension of time.
Background
The Complainant has been employed as a Security Officer with Viking Security Limited from 7thMarch 2011, he was transferred to the Respondent in accordance with the Regulations on 27thOctober 2014. The Complainant’s employment with the Respondent terminated on 22ndSeptember 2015.
Summary of the Complainant’s Case
The Complainant made a number of allegations against the Respondent claiming that deductions were made to his rate of pay, allowances and premia. Furthermore, he claimed that he had an entitlement to outstanding annual leave and public holiday entitlements.
Summary of the Respondent’s Position
While the Respondent denied that it was in breach of the Act stating that it had been provided with misinformation as part of the due diligence process under the transfer of undertakings, however, once the Complainant produced documents to prove his actual existing rate of pay prior to the transfer, the Respondent rectified the situation. The Respondent gave detailed accounts of the Complainant’s annual leave and public holiday entitlements since the transfer and informed the Court that a slight miscalculation in annual leave had been rectified in his favour.
Conclusions of the Court
The written submissions were opened to the Court in full. Having read the Claimant’s submission in preparation for the hearing, it became clear to the Court that the Complainant was referring to numerous issues which the Court has no jurisdiction to hear under the Act and/or issues which were not encompassed by the cognisable time period under Section 6 of the Act. In order to focus the case (which was being heard at the same time as his appeal under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, S.I. No. 131/2003 ) and to establish the range of issues that fell to be determined under the Act, the Court invited the Complainant to make verbal submissions on specific points of relevance to a claim under the Act. As the Claimant was unrepresented the Court made every effort to explain the various steps it was taking.
It is noted that a number of the issues addressed by the Complainant related to alleged breaches of the Organisation of Working Time Act 1997. The Adjudication Officer issued Decision R-151614-WT-14. This Decision was not appealed.
The Court established the date of claim and the cognisable period covered by the claim and invited him to address it on the issues that fell to be determined within that period.
The Complainant informed the Court that he referred the within claim to the Workplace Relations Commission on 12thDecember 2014, the same day he submitted a similar claim seeking the same relief from his previous employer Viking Security Limited (now Liquidated). The Adjudication Officer in Decision R-151950-PW-14 found in his favour. He furnished the Court with a copy of the case. He informed the Court that as a result of the Decision he was compensated for all claimed earnings for the period from 13thJune 2014 until 12thDecember 2014. These monies were paid to him by a former Director of Viking Security Limited on 6thMarch 2016.
The Court notes that the cognisable period covered by the within claim is the identical period covered by Decision R-151950-PW-14, therefore, any redress in respect of that period has already been discharged by his previous employer, Viking Security Limited.
A difficulty arises here where it is apparent that the Complainant has overlapping claims based on the same set of facts. It seems to the Court that as a matter of principle the Complainant cannot rely on the same matters to obtain redress from both employers in respect of the same time period.
Determination
For the reasons set out above the Court does not find in favour of the Complainant’s appeal.
The Court varies the Adjudication Officer’s Decision and rejects the Complainant’s appeal.
The Court so Determines.
Signed on behalf of the Labour Court
16 May 2016.______________________
MNCaroline Jenkinson
Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.