ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002896

Complaint for Resolution:

Date of Adjudication Hearing: 04/10/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

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

Complainant’s Submission and Presentation:

The complainant was employed since February 2015 as a security officer for the respondent.

In October 2015 he referred a complaint to the WRC under the Payment of Wages Act that he had not been paid in accordance with the relevant Employment Regulation Order for his sector. Prior to the hearing in February 2016 the company paid part of the money owed and at the hearing they gave him a cheque for the balance.

Two weeks after the hearing they moved him from the site where he had worked for one year and now two months later they started to reduce his working hours (from a minimum of forty-eight hours per week for the previous fourteen months to thirty six.

He says that as the ERO determines the minimum wages for his sector he believed that his complaint under the National Minimum Wage Act 2000 was the correct one.

Respondent’s Submission and Presentation:

The respondent raised two preliminary issues.

The first concerns the complaint being submitted under the National Minimum Wage Act. It says that no issue ever arose, nor was any complaint made under this Act.

In addition it says that even if it did, that Act requires, at section 36 (3) the complainant to raise the matter with the employer in the first instance and only where he has failed to respond within two weeks of being so requested to restore the wage are the other provisions of the Act relevant to a complaint triggered.

Conclusion and Findings

I have considered all the relevant evidence that was laid before me both prior to and in the course of the hearing.

In relation to the preliminary matter I find for the respondent that the complaint has been submitted under the wrong legislation. The complainant never raised a case under the National Minimum Wage Act, and therefore can not, ipso facto be the victim of penalisation for having done so.

Pending my decision on the preliminary issue I inquired further into the alleged incidents of penalisation. The company rotated the complainant to a different site in line with what it says is its normal practice, (although it would be in its own interests to clarify its practise in this regard in employee contracts or handbook).

Evidence was also submitted by the respondent, and not disputed by the complainant that there was no reduction in his hours, although these varied somewhat. However, the claim made in the complaint in relation to the alleged reduction in his hours was not well founded.

(It also emerged in the course of the hearing that here were outstanding industrial relations issues appropriate to processing at the level of the workplace and both parties have agreed to do so.)

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 reasons set out above I dismiss complaint CA-00003887-001.

Dated:   23^rd November 2016