ADJ-00006501

Complainant

Respondent

Anonymised Parties

Security Officer

Security Company

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00008597-001

06/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008597-002

06/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008597-003

06/12/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00008597-004

06/12/2016

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

CA-00008597-005

06/12/2016

Background:

The Complainant has been employed with the Respondent as a Security Officer since 12^th July 2005. He is paid €12.13 an hour and he works 40 hours a week. He was provided with a written statement of his Terms and Conditions of Employment. The Complainant referred complaints and a dispute to the Workplace Relations Commission on 6^th December 2016 in relation to unlawful deduction from his wages under the Payment of Wages Act, 1991: complaints under the Organisation of Working Time Act, 1997 in relation to payment of annual leave, calculation of pay for annual leave and calculation of annual leave and a dispute under the Industrial Relations Act, 1946 in relation to his Contract of Employment.

Summary of Complainant’s Case:

Payment of Wages Act, 1991. This complaint was withdrawn at the Hearing.

Organisation of Working Time Act, 1997. The Complainant stated that he was on annual leave on 28^th October 2016 and again on 23^rd December 2016 and he stated that he was paid for these annual leave periods after he had taken the leave in breach of the Act. The Complainant stated that in the calculation of pay for annual leave, this is calculated only on the basis of his hours worked and does not take account of the Sunday Allowance paid- the Night Shift paid and a Public Holiday Payment. His P60 for 2016 shows that he was paid an average of €625.90 a week but he was only paid €2306.54 for his annual leave in 2016. The Complainant stated that his annual leave entitlements should be calculated on the basis of hours worked but he is only entitled to 22 days annual leave.

Industrial Relations Act, 1946. The Complainant stated that his Contract of Employment is 11 years old and omits some key information e.g. Payment for Overtime – Place of Employment- the existence of a Collective Agreement. He lodged a complaint with the Respondent on 21^st March 2016 there has been no outcome.

Summary of Respondent’s Position

Payment of Wages Act, 1991. This complaint was withdrawn at the Hearing

Organisation of Working Time Act, 1997. Annual Leave. The Complainant was on annual leave from 15^th October 2016 to 23^rd October 2016, with payment made on 28^th October 2016 and again from 10^th December 2016 to 17^th December 2016 with payment made on 23^rd December 2016.

Calculation of pay for annual leave, the Respondent confirmed that payment of annual leave is calculated only on actual hours worked.

Calculation of annual leave entitlement. The Complainant took 36 days annual leave in 2016 but 22 days only paid for in accordance with his Contract of Employment.

Industrial Relations Act, 1946.The dispute referred to the WRC by the Complainant is in relation to his Contract of Employment. The Complainant was provided with a Written Statement of his Terms and Conditions of Employment on 12^th July 2005 signed and dated by both Parties. He was provided with an updated Contract of Employment on 21^st March 2016 which was signed and dated by the Respondent. There was a Grievance Meeting with the Complainant held on 4^th October 2016 in relation to his Contract and a formal outcome letter was issued to the Complainant on 29^th November 2016.

Payment of Wages Act, 1991.

This complaint was withdrawn at the Hearing.

Organisation of Working Time Act, 1997.

Payment for Annual Leave. Section 20(2) of the Act provides as follows: The pay in respect of an employee’s annual leave shall (a) be paid to the employee in advance of his or her taking the leave”. I note that there is a Collective Agreement in place with the Unions which provides that if an employee wishes to be paid in advance of taking annual leave, the employee must notify payroll at least two weeks prior to the annual leave been taken. Otherwise in accordance with the Agreement employees are paid their annual leave as per the normal fortnightly pay period. The annual leave taken in October 2016 was prior to the letter of 29^th November 2016 clarifying the situation for the Complainant following his Grievance complaint. The Complainant confirmed that he did not apply 2 weeks in advance for his annual leave to be paid to cover the period 10^th December 2016 to 17^th December 2016.

Calculation of Pay for Annual Leave. Section 20(2) of the Act provides as follows: The pay in respect of an employee’s annual leave shall – (b) be at the normal weekly rate or, as the case may be, at a rate which is proportionate to the normal weekly rate…….. (4) In this section “normal weekly rate” means the normal weekly rate of the employee concerned pay determined in accordance with Regulations made by the Minister for the purposes of this section”. The normal weekly rate of pay has been determined by S.I. 475 of 1997 – Organisation of Working Time (Determination of Pay for Holidays) Regulations 1997. Therefore this provides that normal weekly rate is “the sum, including any regular bonus or allowance but excluding any pay for overtime. “.

The evidence from both Parties was that payment for annual leave did not include the unsocial night allowance or the Sunday Premium but was based solely on basic hours. This is contrary to Section 20 of the Organisation of Working Time Act, 1997 and S.I. 475 of 1997.

Industrial Relations Act, 1946

The Complainant did not provide any evidence to the Hearing as to how the Respondent had breached the Employment Regulation Order for the Security Industry S.I. 4217 of 2015 which came into operation on 1^st October 2015.

Payment of Wages Act, 1991 – CA-00008597-001

This complaint was withdrawn at the Hearing.

Organisation of Working Time Act, 1997 – CA-00008597-002-003-004

On the basis of the evidence and my findings above and in accordance with Section 41 (5) of the Workplace Relations Act, 2015 I declare this complaint is well founded. I direct the Respondent to pay the Complainant compensation of €2000.00 for breaches of Sections 20(2) of the Act and S.I. 475 of 1997. This compensation to be paid to the Complainant within 42 days of the date of this Decision.

Industrial Relations Act, 1946 –CA-00008597-005

This complaint was submitted to the WRC under Section 45A of the Industrial Relations Act, 1946 which provides as follows: A decision of an adjudication officer under section 41 of the Workplace Relations Act, 2015 in relation to a complaint of a contravention of an employment regulation order in relation to a worker shall do one or more of the following…..

The Complainant is a security officer and is therefore covered by the Employment Regulation Order (Security Industry Joint Labour Committee) S.I.417 of 2015 which came into force on 1^st October 2015 and has been laid before the Houses of the Oireachtas. However the Complainant provided no evidence to the Hearing as to how the Respondent had breached the ERO for the Security Industry. I declare this complaint is not well founded.

Annual Leave paid in advance – Calculation of Pay for Annual Leave – ERO Security Industry