ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002617

Parties:

Complaints for Resolution:

Date of Adjudication Hearing: 04/08/2016

Workplace Relations Commission Adjudication Officer: Aideen Collard

Location of Hearing: Lansdowne House, Ballsbridge, Dublin 4

Procedure:

The aforesaid complaints referred under Section 6 of the Payment of Wages Act 1991, Section 7 of the Terms of Employment (Information) Act 1994 and Section 8 of the Unfair Dismissals Act 1977 were received by the Workplace Relations Commission (hereinafter ‘WRC’) on 1^st April 2016. In accordance with Section 41(4) of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977, the Director General referred these complaints to me for adjudication. I proceeded to hearing on 4^th August 2016 and gave the Parties an opportunity to be heard and to present any relevant evidence. There was no appearance on behalf of the Respondent, a registered limited company with a ‘Normal’ trading status on the CRO. Before proceeding to hearing, I confirmed that the Respondent had not made any application for an adjournment, indicated any difficulty or otherwise engaged with the WRC. I satisfied myself that all correspondence including notification of the hearing date of 5^th July 2016, confirming the venue, date and time of the hearing had issued to the correct address. I also made enquiries as to the Respondent’s whereabouts and remained in the hearing room for the scheduled duration. All the documentation referred to and relied upon by the Complainant was furnished at and/or after the hearing. All evidence presented along with relevant statutory provisions have been taken into consideration within this decision.

Background:

The Complainant is seeking compensation in respect of deductions from his wages, a shortfall in wages arising from not being paid the requisite ERO rates, the Respondent’s failure to provide him with a written statement of the terms and conditions of his employment and for constructive dismissal.

By way of background, the Complainant outlined the following history of his employment as a Security Guard with the Respondent Employment Agency before leaving this employment on 22^nd November 2015:

- The Complainant is a foreign national and was resident and working in Ireland on a Stamp 4 Visa at the material time. He also possesses a PSAI Licence required for security work in Ireland and obtained from the Private Security Authority (established pursuant to the Private Security Services Acts 2004 and 2011, as the statutory body with responsibility for licensing and regulating the private security industry in Ireland).

- He was employed by the Respondent from 4^th March 2011 until 22^nd November 2015 when he terminated his employment and received a P.45 dated 8^th January 2016 and a supplemental P.45 dated 22^nd January 2016. The Respondent paid his wages for the security work undertaken on its behalf for third parties, including PAYE, PRSI and USC as per his payslips which were headed with the Respondent’s name.

- He was never furnished with any contract of employment or written statement of the terms and conditions of his employment despite numerous requests for same during the course of his employment. Nor was he ever provided with any grievance procedures to enable him to raise these complaints internally.

- He was employed as a Security Guard on various assignments of differing lengths from several weeks to several months, primarily providing security for construction sites on behalf of third parties.

- He confirmed that the majority of the Respondent’s employees are of the same nationality and as such, are not aware of their legal entitlements and as they are so desperate for the work, were less likely to complain about their working conditions which he described as appalling. In order to obtain work, one would have to ring a contact person, Mr AB based in the Respondent’s office and literally beg for work.

- He was not assigned any particular fixed number of hours work per week which varied from 0 up to 77 hours per week, averaging approximately 40 hours per week for 2011-2014. However during 2015, he was not assigned any work between February 2015 and October 2015. He had become demoralised and save for a month’s break abroad, he was available for work at all material times. When he complained about the lack of work to Mr AB by telephone, he received the following hours of work on a construction site:

Week 43 ending 22/10/2015 - 6 hours

Week 44 ending 29/10/2015 - 52 hours (4 hours worked over 48 hours)

Week 45 ending 05/11/2015 - 77 hours (29 hours worked over 48 hours)

Week 46 ending 12/11/2015 - 63 hours (15 hours worked over 48 hours)

Week 47 ending 19/11/2015 - 47 hours

Week 48 ending 26/11/2015 - 28 hours

- Along with other deductions (some of which were reimbursed), €9.89 weekly for ‘Personal Accident Insurance’ was deducted from his wages for the totality of his employment and was never reimbursed. Furthermore, the Respondent had refused to pay him the applicable rates under the Employment Regulation Order (ERO) on the Security Industry which came into effect on 1^st October 2015.

- He was subjected to appalling work conditions and when combined with the uncertain hours, unlawful deductions, failure to adhere to ERO rates, failure to provide a written statement of the terms and conditions of his employment, he felt that his employment had become both intolerable and untenable and he had no alternative to leave, so he requested his P.45, his last day of work being 22^nd November 2015.

Preliminary Issue:

The Complainant was unclear as to the employment status he held with the Respondent. Arising from my investigations, it appears that the Respondent was a registered licenced Employment Agency with the WRC at the material time and the Parties were subject to the Protection of Employees (Temporary Agency Work) Act 2012. However, as the Respondent was never provided with a contract, unfortunately it appears that he was unaware of his employment status and therefore did not pursue any complaints that may have been open to him under this statute. His status as an agency worker also has a bearing on the manner in which these complaints are assessed. Certain employment statutes [including the Payment of Wages Act 1991 and Terms of Employment (Information) Act 1994] expressly include contracts between an agency and an agency worker within the definition of ‘contract of employment’, with the employer defined as the person liable to pay the wages of the agency worker i.e. the Respondent in this case. However, Section 13 of Unfair Dismissals Amendment Act 1993 was introduced to provide that the hirer will be deemed to be the agency worker’s employer and correct Respondent in relation to any claim for unfair or constructive dismissal. Consequently and save for the exceptions, the agency worker must satisfy the requirement of having one year’s service with the hirer (rather than the agency) in order to bring a claim for unfair or constructive dismissal. (See Employment Law, 2^nd Edition by Ailbhe Murphy & Maeve Regan, Chapter 14)

Unlawful Deductions under the Payment of Wages Act 1991 - CA-00003625-001

Summary of the Complainant’s Case:

The Complainant complained that the Respondent had deducted €9.89 weekly for ‘Personal Accident Insurance’ from his wages for the totality of his employment when there was no contractual or other basis for same. Notwithstanding that he had repeatedly brought this to the Respondent’s attention along with other deductions, it had continued to make them and never reimbursed him for same. Although other deductions had been made, these were the only such deductions falling within the last 12 month period.

Summary of the Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions. Section 1 of the Payment of Wages Act 1991 defines a ‘contract of employment’ for the purpose of that Act as: “(a) a contract of service or of apprenticeship, and (b) any other contract whereby an individual agrees with another person to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract) whose status by virtue of the contract is not that of a client or customer of any profession or business undertaking carried on by the individual, and the person who is liable to pay the wages of the individual in respect of the work or service shall be deemed for the purposes of this Act to be his employer, whether the contract is express or implied and if express, whether it is oral or in writing;” Section 1 further defines ‘wages’ as including: “…any sums payable to the employee by the employer in connection with his employment, including- (a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,…” Section 5(1) provides: “An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless- (a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute, (b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or (c) in the case of a deduction, the employee has given his prior consent in writing to it.” Section 6 of the Act provides for the referral of complaints arising from a contravention of Section 5 to the WRC. Section 41(6) of the Workplace Relations Act 2015 provides for a period of six months (extendable to 12 months if reasonable cause) from the date of contravention until the date of referral.

Applying the aforesaid statutory provisions to the facts adduced, I am satisfied on the balance of probabilities that: (1) as the Complainant’s wages were paid by the Respondent, a registered Employment Agency, his contract of employment was with the Respondent who was his employer for the purposes of the Payment of Wages Act 1991; (2) this complaint has been brought within the requisite six-month time limit from the date of alleged contraventions from 22^nd October 2015 onwards (all other deductions falling outside of 12 months); (3) in the absence of a written statement or contract of employment and based upon the Complainant’s unrefuted evidence which I found to be credible and was also supported with wage slips showing the amounts deducted, there was no statutory basis, contractual term or consent to such deductions and (4) six weekly deductions of €9.89 for Weeks 43-48 of 2015 totalling €59.34 were made.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Based upon the aforesaid reasoning, I consider this complaint to be well-founded. As specified by Schedule 6, Section 6 of the Payment of Wages Act 1991 provides that upon finding a complaint well-founded, an Adjudication Officer may direct an employer to pay an employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding: “(a) the net amount of the wages (after the making of any lawful deduction therefrom) that- (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, where paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.” Accordingly, I direct the Respondent to pay the Complainant compensation in the amount of €20 in respect of each of the six weekly amounts deducted from his wages, totalling €120 as being reasonable in the circumstances.

Shortfall in Wages under the Payment of Wages Act 1991 - CA-00003625-002

Summary of the Complainant’s Case:

The Complainant claimed for a shortfall in wages arising from the fact that the Respondent continued to pay him the minimum wage for all hours worked after S.I. No. 417 of 2015 Employment Regulation Order (Security Industry Joint Labour Committee) 2015 (ERO) came into effect on 1^st October 2015. This ERO was introduced to set the minimum remuneration and conditions of employment within the Security Industry. It set the rate of adult pay for a ‘security operative’ (providing a security service as defined therein for contract clients of a ‘security firm’ defined therein as an employer of one or more security operatives) at €10.75 per hour with an overtime rate for all hours worked in excess of an average 48 hour working week at a rate of time and a half. However, the Respondent continued to pay the Complainant a flat minimum wage rate of €8.65 per hour after 1^st October 2015, regardless of how much overtime he worked and without explanation. He raised this issue with Mr AB on numerous occasions and requested that his hourly rate of pay be adjusted in line with the applicable ERO rates. However this request was refused outright and he was told that there were plenty of others who would be happy to work for the current rate of pay. The same six week period worked from 22^nd October 2015 as set out above was affected by this shortfall.

Summary of the Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.

Findings and Conclusions:

Applying the relevant provisions of the Payment of Wages Act 1991 and with reference to the applicable ERO for the Security Industry applicable from 1^st October 2015 as set out aforesaid, I am satisfied on the balance of probabilities that: (1) as the Complainant’s wages were paid by the Respondent, a registered Employment Agency, his contract of employment was with the Respondent who was his employer for the purposes of the Payment of Wages Act 1991; (2) the Complainant is a ‘security operative’ and the Respondent is a ‘security firm’ within the meaning of the ERO in question and the Complainant is therefore entitled to the applicable rates of pay; (3) this complaint has been brought within the requisite six-month time limit from the date of alleged contraventions from 22^nd October 2015 onwards; (4) the shortfall in pay under the applicable ERO claimed falls within the definition of ‘wages’ for the purposes of referring a complaint to the WRC under Section 6 of the Act; (5) based upon the unrefuted evidence of the Complainant which I found to be credible and was also supported with wage slips, the hourly rate of €8.65 paid for the requisite six week period as set out above was €2.10 per hour less than the applicable ERO rate of €10.75 per hour for all regular hours, and €7.48 per hour less than the applicable ERO rate of time and a half (€16.13) for all hours worked over and above an average 48 hour working week. Based upon the hours worked by the Complainant for the requisite six week period in 2015 as set out above, this comprised of six weekly deductions from his wages, amounting to €12.60 for Week 43, €130.72 for Week 44, €317.72 for Week 45, €213 for Week 46, €98.70 for Week 47 and €58.80 for Week 48 totalling €831.54 gross.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Based upon the aforesaid reasoning, I consider this complaint to be well-founded. As specified by Schedule 6, Section 6 of the Payment of Wages Act 1991 provides that upon finding a complaint well-founded, an Adjudication Officer may direct an employer to pay an employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding: “(a) the net amount of the wages (after the making of any lawful deduction therefrom) that- (i) in case the complaint related to a deduction, would have been paid to the employee in respect of the week immediately preceding the date of the deduction if the deduction had not been made, or (ii) in case the complaint related to a payment, where paid to the employee in respect of the week immediately preceding the date of payment, or (b) if the amount of the deduction or payment is greater than the amount referred to in paragraph (a), twice the former amount.” The Complainant was required to work an average of 45.5 hours per week for the reference period in question. Applying the aforesaid criteria and considering the outright and continuing refusal to comply with the applicable ERO rates, I consider it reasonable to direct the Respondent to pay the Complainant compensation in the sum of €2,934 reflecting 6 x average working weeks at €10.75 per hour so €489 per week for that reference period.

No Written Statement under the Terms of Employment (Information) Act 1994 - CA-00003625-003

Summary of the Complainant’s Case:

The Complainant complains that he was never provided with a written statement particularising the terms of his employment despite numerous requests for same from the Respondent. As a consequence, he was adversely affected as he was unaware of his employment status and his legal rights and entitlements.

Summary of the Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.

Findings and Conclusions:

It is necessary to examine the facts giving rise to this complaint in light of the relevant statutory provisions. Section 1 of the Terms of Employment (Information) Act 1994 defines a ‘contract of employment’ for the purposes of that Act as: “(a) a contract of service or apprenticeship, or (b) any other contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of either the Employment Agency Act 1971 or the Protection of Employees (Temporary Agency Work) Act 2012 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract), whether the contract is express or implied and if express, whether it is oral or in writing;” Section 3(1) of the Act provides that: “An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment,…” as listed in that Section. Section 7 of the Act provides for the referral of complaints arising from a contravention of Section 3(1) of the Act to the WRC. Section 41(6) of the Workplace Relations Act 2015 provides for a period of six months (extendable to 12 months if reasonable cause) from the date of contravention until the date of referral to the WRC.

Applying the aforesaid statutory provisions to the facts adduced, I am satisfied on the balance of probabilities that: (1) as an Employment Agency employing the Complainant to do or perform personally any work or services for third parties, his contract of employment was with the Respondent for the purposes of this Act; (2) the Complainant’s evidence that he was not provided with a written statement particularising the terms of his employment notwithstanding numerous requests for same was wholly credible and in the absence of any evidence from the Respondent, was not rebutted; (3) this was an ongoing contravention of the Act for the purposes of the requisite six-month time limit as specified in Section 41(6) of the Workplace Relations Act 2015 and (4) this contravention is on the most serious end of the scale in circumstances where the absence of a written statement particularising the terms of his employment left the Complainant in a vulnerable and nebulous position and in particular, unaware of his employment status and therefore unable to pursue other complaints that may have been open to him.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint in accordance with the relevant redress provisions under Schedule 6 of that Act. Based upon the aforesaid reasoning, I consider this complaint to be well-founded. As specified by Schedule 6, Section 7(2)(d) provides for an award in respect of a contravention of this Section of: “compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 4 weeks’ remuneration in respect of the employee’s employment calculated in accordance with regulations under section 17 of the Unfair Dismissals Act 1977.” Applying the relevant S.I. No. 287/1977 - Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977, the Complainant was required to work an average of 45.5 hours per week for the reference period in question. I have already found that he should have been paid the applicable ERO rate of €10.75 per hour amounting to €489 per week. Having regard to all the circumstances and given the serious nature of this breach and its consequences, I deem it just and equitable to order the Respondent to pay the Complainant compensation equivalent to the maximum sum of 4 weeks’ remuneration equating to €1956.

Constructive Dismissal under Section 8 of the Unfair Dismissals Act 1977 - CA-00003625-004

Summary of the Complainant’s Case:

The Complainant described appalling working conditions when undertaking assignments with third parties on behalf of the Respondent. Apart from the uncertainty around his working hours, he described lengthy shifts of standing in wet, cold and dark conditions on construction sites for up to 15 hours without proper breaks or rest periods. His last assignment in October-November 2015 had been particularly difficult. When he had become unwell during the assignment and attempted to find a doctor, he was reprimanded over the phone by Mr AB and told to get back to the site without receiving treatment. As a consequence, he reported that he is suffering from ongoing swelling to his joints requiring further medical investigation. Combined with the unlawful deductions of pay including failure to adhere to the ERO rates and absence of a written statement of the terms and conditions of his employment, the Complainant felt that his employment with the Respondent had become both intolerable and untenable and so he requested his P.45, his last day of work being 22^nd November 2015. Unfortunately, as the Respondent had not provided him with any grievance procedures he could not avail of same. He confirmed that he had been out of work for approximately six months before finding contract work in the UK which is also of an insecure nature.

Summary of the Respondent’s Case:

There was no appearance on behalf of the Respondent at the hearing as outlined above. I also note that the Respondent has not engaged with the WRC or submitted any written submissions or documentation. In the circumstances, no evidence has been proffered on behalf of the Respondent in this matter.

Findings and Conclusions:

As outlined above and set out as follows, Section 13 of the Unfair Dismissals Amendment Act 1993 provides that the hirer is the correct Respondent for the purposes of a claim for unfair or constructive dismissal as follows: “Where, whether before, on or after the commencement of this Act, an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971, and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract and whether or not the third person pays the wages or salary of the individual in respect of the work or service), then, for the purposes of the Principal Act, as respects a dismissal occurring after such commencement- (a) the individual shall be deemed to be an employee employed by the third person under a contract of employment, (b) if the contract was made before such commencement, it shall be deemed to have been made upon such commencement, and (c) any redress under the Principal Act for unfair dismissal of the individual under the contract shall be awarded against the third person.” As this complaint has been brought against the Respondent, a registered Employment Agency and not the hirer, I cannot entertain a complaint of constructive dismissal against the named Respondent. Regardless of whether the claim had been brought against the Respondent or hirer, there would also have been difficulty with the Complainant meeting the requisite service requirements for the purposes of bringing a constructive dismissal complaint.

Decision:

Section 8(1B) of the Unfair Dismissals Act 1977 requires that I make a decision in relation to a complaint of constructive dismissal in accordance with that Section. Whilst I fully accept the Complainant’s unrefuted account of his appalling working conditions, I am precluded from entertaining this complaint for the reasons set out above. I therefore find that this complaint is unfounded and accordingly dismiss same.

Overall Award:

Overall and for the avoidance of doubt, the Respondent is ordered to pay the Complainant a total of €5,010 compensation within 56 days of the date hereof, comprising of €3,054 (subject to any lawful deductions) in respect of his two complaints under Section 6 of the Payment of Wages Act 1991, and €1956 compensation in respect of his complaint under Section 11 of the Minimum Notice & Terms of Employment Act 1973.

Dated:   15^th May 2017

Workplace Relations Commission Adjudication Officer: Aideen Collard

Key Words: Agency Worker – Employment Agency – Constructive Dismissal – Section 13 Unfair Dismissals Amendment Act 1993 – Payment of Wages Act 1991 – Minimum Notice & Terms of Employment Act 1973 –