ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00006156

Parties:

	Complainant	Respondent
Anonymised Parties	Security Officer	Security Company

Representatives

Complaints:

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-00008445-001	29/11/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00008445-002	29/11/2016
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00008445-003	29/11/2016

Date of Adjudication Hearing: 28/03/2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Location of Hearing: Lansdowne House, Dublin 4.

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and 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 has been employed with the Respondent named Company from 4^th. December 2004. He is paid €10.75 an hour and he works 40.5 hours a week. The Complainant was provided with a written statement of his Terms and Conditions of Employment. The Complainant referred a complaint to the Workplace Relations Commission on 29^th. November 2016 alleging the Respondent had made unlawful deductions from his wages.

Summary of Complainant’s Case:

The Complainant stated that the Respondent stopped paying him overtime in November 2013. He stated a number of complaints had been referred to the WRC with no outcome since April 2014 and he is seeking that all complaints dating back to 2014 should be dealt with. He is claiming payment of €1580.25. A second complaint relates to a deduction of €323.18 in relation to payment for annual leave on 27^th July 2016. In relation to this complaint the Complainant stated that this issue was dealt with by the Labour Court in August 2015 which did not uphold the complaint. Another complaint relates to an unlawful deduction of €96.75 on 2^nd November 2016 – although he confirmed at the Hearing he was unsure of this date, and a further complaint in relation to an unlawful deduction of €323.18 on 1^st November 2016 in relation to calculation of pay for annual leave on 9^th August 2016. He stated that the Respondent had breached the ERO of 2015 for the security industry which requires that overtime has to be included in the calculation of pay for Annual Leave.

Summary of Respondent’s Case

The ERO states that “hours in excess of an average 39 hours worked in a roster cycle will be paid at a rate of time and a half”. The Complainant works from a fixed roster over a six week roster cycle. The Complainant receives five hours of paid breaks during the course of his weekly roster. Therefore his average hours worked in a week falls below 39 hours a week. He is therefore not entitled to payment of overtime – The second complaint relates to the alleged non-payment for a 9 hour shift weekending 1^st November 2016. The Complainant does not specify which day he allegedly worked in spite of the Respondent requesting this information 12^th December 2016. His roster for that week shows that he worked 4 days and the place where he worked was closed on the Sunday and the Public Holiday on the Monday which means the only shift he could have worked as a relief was Wednesday but the employee rostered to work on that day did attend for work. The third complaint relates to pay for annual leave. The Complainant is entitled to 20 days annual leave per annum in accordance with both the OWTA and his Contract of Employment. His annual leave pay is calculated based on the previous 13 weeks worked. The Respondent provided print outs for the years 2012 to 2016 and also the decision of the Labour Court DWT 1579

Findings and Conclusions:

On the basis of the evidence and extensive details provided I find as follows: Complaint Number one. This relates, to payment of overtime. The Employment Regulation Order 2015 provides as follows: “hours in excess of an average 39 hours worked in a roster cycle will be paid at a rate of time plus a half”. The evidence was that the Complainant worked on average at or below 39 hours a week which does not include the 5 hours paid lunch breaks provided by the Respondent. I find that the Complainant is not entitled to payment of overtime. A second issue arises in relation to the statement of the Complainant seeking that the issue should be addressed by the Adjudication Officer retrospective to April 2014. Section 41(6) of the Workplace Relations Act, 2015 provides that a complaint must be lodged with the Director of the WRC within the period of 6 months of the alleged contravention to which the complaint relates. These complaints were lodged with the WRC on 29^th November 2016, therefore in accordance with Section 41 (6) of the Act of 2015 the period covered by these complaints is from 30^th May 2016 to 29^th November 2016.

The second complaint relates to payment of a shift which the complaint stated he worked but was not paid. The Complaint, at the Hearing stated that he was unsure of the date of the shift he worked. I note that on 12^th December 2016 the Respondent also requested this information from the Complainant but there was no response. I find that the Complaint failed to quantify the specific complaint and was unable to provide an accurate date in relation to a shift worked and not paid.

The third complaint relates to the calculation of pay for Annual Leave. The evidence was that the Complainant’s annual leave pay is calculated on the previous 13 weeks worked. The calculation of pay for annual leave is determined by the Organisation of Working Time Act (Determination of Pay) Regulations, 1997 – S.I. 475 of 1997. Regulation 3 (2) provides “If an employee concern’s pay is calculated wholly by reference to a time rate or a fixed rate or salary or any other rate that does not vary in relation to the work done by him or her, the normal weekly rate of his or her pay,….shall be the sum (including any regular bonus or allowance the amount of which does not vary in relation to the work done by the employee but excluding any pay for overtime)that is paid in respect of the normal weekly working hours last worked by the employee”. The evidence from both Parties was that the Complainant was paid €10.75 an hour which did not vary. I have examined the records provided by the Respondent and I am satisfied that the Complaint was paid his annual leave payment in accordance with S.I. 475 of 1997. I find that this complaint is not well founded.

Decision:

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

In accordance with Section 41 (5) of the Workplace Relations Act, 2015 and in view of my findings above I declare the Complaints are not well founded.

Dated: 30 May 2017

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Key Words:

Shift work – calculation of pay for Annual Leave